Code of Federal Regulations 49 Parts 600-999

49
Parts 600 to 999

Revised as of October 1, 2007
Transportation
Containing a codification of documents

of general applicability and future effect
As of October 1, 2007
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register

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Table of Contents
Page
Explanation ................................................................................................ v
Title 49:
Subtitle B—Other Regulations Relating to Transportation (Contin-

ued)
Chapter VI—Federal Transit Administration, Department of

Transportation ............................................................................ 5
Chapter VII—National Railroad Passenger Corporation (AM-

TRAK) .......................................................................................... 101
Chapter VIII—National Transportation Safety Board .................... 117
Finding Aids:
Table of CFR Titles and Chapters ....................................................... 209
Alphabetical List of Agencies Appearing in the CFR ......................... 227
List of CFR Sections Affected ............................................................. 237

iii
Cite this Code: CFR
To cite the regulations in

this volume use title,
part and section num-
ber. Thus, 49 CFR 601.1
refers to title 49, part
601, section 1.
iv
Explanation
The Code of Federal Regulations is a codification of the general and permanent
rules published in the Federal Register by the Executive departments and agen-
cies of the Federal Government. The Code is divided into 50 titles which represent
broad areas subject to Federal regulation. Each title is divided into chapters
which usually bear the name of the issuing agency. Each chapter is further sub-
divided into parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year and issued
on a quarterly basis approximately as follows:
Title 1 through Title 16..............................................................as of January 1
Title 17 through Title 27 .................................................................as of April 1
Title 28 through Title 41 ..................................................................as of July 1
Title 42 through Title 50 .............................................................as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual issues
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which is issued monthly, and the ‘‘Cumulative List of Parts Affected,’’ which
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given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal Reg-
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Many agencies have begun publishing numerous OMB control numbers as amend-
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close as possible to the applicable recordkeeping or reporting requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on the cover
of each volume are not carried. Code users may find the text of provisions in
effect on a given date in the past by using the appropriate numerical list of
sections affected. For the period before January 1, 2001, consult either the List
of CFR Sections Affected, 1949–1963, 1964–1972, 1973–1985, or 1986–2000, published
in 11 separate volumes. For the period beginning January 1, 2001, a ‘‘List of CFR
Sections Affected’’ is published at the end of each CFR volume.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a separate
volume, revised annually as of January 1, entitled CFR INDEX AND FINDING AIDS.
This volume contains the Parallel Table of Statutory Authorities and Agency
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list of agencies publishing in the CFR are also included in this volume.
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The Federal Register Index is issued monthly in cumulative form. This index
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ister.
A List of CFR Sections Affected (LSA) is published monthly, keyed to the
revision dates of the 50 CFR titles.
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vi
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RAYMOND A. MOSLEY,
Director,
Office of the Federal Register.
October 1, 2007.
vii
THIS TITLE
Title 49—TRANSPORTATION is composed of nine volumes. The parts in these vol-

umes are arranged in the following order: Parts 1–99, parts 100–185, parts 186–
199, parts 200–299, parts 300–399, parts 400–599, parts 600–999, parts 1000–1199, part
1200 to End. The first volume (parts 1–99) contains current regulations issued
under subtitle A—Office of the Secretary of Transportation; the second volume
(parts 100–185) and the third volume (parts 186–199) contain the current regula-
tions issued under chapter I—Pipeline and Hazardous Materials Safety Adminis-
tration (DOT); the fourth volume (parts 200–299) contains the current regulations
issued under chapter II—Federal Railroad Administration (DOT); the fifth volume
(parts 300–399) contains the current regulations issued under chapter III—Federal
Motor Carrier Safety Administration (DOT); the sixth volume (parts 400–599) con-
tains the current regulations issued under chapter IV—Coast Guard (DHS), chap-
ter V—National Highway Traffic Safety Administration (DOT); the seventh vol-
ume (parts 600–999) contains the current regulations issued under chapter VI—
Federal Transit Administration (DOT), chapter VII—National Railroad Passenger
Corporation (AMTRAK), and chapter VIII—National Transportation Safety
Board; the eighth volume (parts 1000–1199) contains the current regulations issued
under chapter X—Surface Transportation Board and the ninth volume (part 1200
to End) contains the current regulations issued under chapter X—Surface Trans-
portation Board, chapter XI—Research and Innovative Technology Administra-
tion, and chapter XII—Transportation Security Administration, Department of
Transportation. The contents of these volumes represent all current regulations
codified under this title of the CFR as of October 1, 2007.
In the volume containing parts 100–185, see § 172.101 for the Hazardous Materials
Table. The Federal Motor Vehicle Safety Standards appear in part 571.
Redesignation tables for chapter III—Federal Motor Carrier Safety Administra-

tion, Department of Transportation and chapter XII—Transportation Security
Administration, Department of Transportation appear in the Finding Aids sec-
tion of the fifth and ninth volumes.
For this volume, Moja N. Mwaniki was Chief Editor. The Code of Federal Regu-
lations publication program is under the direction of Michael L. White, assisted
by Ann Worley.
ix
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Title 49—Transportation
(This book contains parts 600 to 999)
SUBTITLE B—Other Regulations Relating to Transportation

(Continued)
Part
CHAPTER VI—Federal Transit Administration, Department

of Transportation ............................................................... 601
CHAPTER VII—National Railroad Passenger Corporation
(AMTRAK) ......................................................................... 700
CHAPTER VIII—National Transportation Safety Board .......... 800
Subtitle B—Other Regulations
Relating to Transportation
(Continued)
CHAPTER VI—FEDERAL TRANSIT
ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION
Part Page
601 Organization, functions, and procedures ................. 7
604 Charter service ........................................................ 15
605 School bus operations ............................................. 23
30 Transportation for elderly and handicapped per-
sons ...................................................................... 30
611 Major capital investment projects .......................... 32
613 Planning assistance and standards ......................... 40
614 Transportation infrastructure management ........... 41
622 Environmental impact and related procedures ....... 41
624 Clean Fuels Grant Program .................................... 42
630 Uniform system of accounts and records and re-
porting system ..................................................... 44
633 Project management oversight ............................... 49
639 Capital leases .......................................................... 52
640 Credit assistance for surface transportation
projects ................................................................ 56
655 Prevention of alcohol misuse and prohibited drug
use in transit operations ...................................... 56
659 Rail fixed guideway systems; State safety over-
sight ..................................................................... 70
661 Buy America requirements ..................................... 80
663 Pre-award and post-delivery audits of rolling stock
purchases .............................................................. 92
665 Bus testing .............................................................. 95
PART 601—ORGANIZATION, SOURCE: 70 FR 67318, Nov. 4, 2005, unless
otherwise noted.
FUNCTIONS, AND PROCEDURES
Subpart A—General Provisions Subpart A—General Provisions
Sec. § 601.1 Purpose.
601.1 Purpose.
601.2 Organization of the administration. This part describes the organization
601.3 General responsibilities. of the Federal Transit Administration
601.4 Responsibilities of the Administrator. (‘‘FTA’’), an operating administration
within the U.S. Department of Trans-
Subpart B—Public Availability of portation. This part also describes gen-
Information eral responsibilities of the various of-
601.10 Sources of information. fices of which FTA is comprised. In ad-
dition, this part describes the sources
Subpart C—Rulemaking Procedures and locations of available FTA pro-
gram information, and provides infor-
601.20 Applicability. mation regarding FTA’s rulemaking
601.21 Definitions.
601.22 General.
procedures.
601.23 Initiation of rulemaking.
601.24 Contents of notices of proposed rule- § 601.2 Organization of the administra-
making. tion.
601.25 Participation by interested persons. (a) The headquarters organization of
601.26 Petitions for extension of time to FTA is comprised of eight principal of-
comment.
601.27 Contents of written comments.
fices which function under the overall
601.28 Consideration of comments received. direction of the Federal Transit Ad-
601.29 Additional rulemaking proceedings. ministrator (‘‘the Administrator’’) and
601.30 Hearings. Deputy Administrator. These offices
601.31 Adoption of final rules. are:
601.32 Petitions for rulemaking or exemp- (1) Office of Administration.
tions.
(2) Office of Budget and Policy.
601.33 Processing of petition.
601.34 Petitions for reconsideration. (3) Office of Chief Counsel.
601.35 Proceedings on petitions for reconsid- (4) Office of Civil Rights.
eration. (5) Office of Communications and
601.36 Procedures for direct final rule- Congressional Affairs.
making. (6) Office of Planning and Environ-
Subpart D—Emergency Procedures for ment.
Public Transportation Systems (7) Office of Program Management.
(8) Office of Research, Demonstration
601.40 Applicability. and Innovation.
601.41 Petitions for relief. (b) FTA has ten regional offices, each
601.42 Emergency relief docket.
601.43 Opening the docket.
of which function under the overall di-
601.44 Posting to the docket. rection of the Administrator and Dep-
601.45 Required information. uty Administrator, and under the gen-
601.46 Processing of petitions. eral direction of a Regional Adminis-
601.47 Review procedures. trator. In addition, FTA has estab-
AUTHORITY: 5 U.S.C. § 552; 49 U.S.C. 5334; 49 lished a Lower Manhattan Recovery
U.S.C. 1657, 1659; Reorganization Plan No. 2 Office, which is under the general di-
of 1968 (82 Stat. 1369); 49 CFR 1.51. rection of the Director for this office.
Region/States Office/address Telephone No.
I. Connecticut, Maine, Massachusetts, New Hamp- FTA Regional Administrator, Kendall Square, 55 (617) 494–2055
shire, Rhode Island, and Vermont. Broadway, Suite 920, Cambridge, MA 02142–
1093.
II. New York, New Jersey, and U.S. Virgin Islands .. FTA Regional Administrator, One Bowling Green, (212) 668–2170
Room 429, New York, NY 10014–1415.
III. Delaware, District of Columbia, Maryland, Penn- FTA Regional Administrator, 1760 Market Street, (215) 656–7100
sylvania, Virginia, and West Virginia. Suite 500, Philadelphia, PA 19103–4124.
IV. Alabama, Florida, Georgia, Kentucky, Mis- FTA Regional Administrator, Atlanta Federal Cen- (404) 562–3500
sissippi, North Carolina, Puerto Rico, South Caro- ter, Suite 17T50, 61 Forsyth Street, SW., Atlanta,
lina, and Tennessee. GA 30303.
§ 601.3 49 CFR Ch. VI (10–1–07 Edition)
Region/States Office/address Telephone No.
V. Illinois, Indiana, Minnesota, Michigan, Ohio, and FTA Regional Administrator, 200 West Adams (312) 353–2789
Wisconsin. Street, Suite 320, Chicago, IL 60606.
VI. Arkansas, Louisiana, New Mexico, Oklahoma, FTA Regional Administrator, 819 Taylor Street, (817) 978–0550
and Texas. Room 8A36, Fort Worth, TX 76102.
VII. Iowa, Kansas, Missouri, and Nebraska .............. FTA Regional Administrator, 901 Locust Street, (816) 329–3920
Suite 404, Kansas City, MO 64106.
VIII. Colorado, Montana, North Dakota, South Da- FTA Regional Administrator, Dept. of Transpor- (720) 963–3300
kota, Utah, and Wyoming. tation, FTA, 12300 W. Dakota Ave., Suite 310,
Lakewood, CO 80228–2583.
IX. Arizona, California, Hawaii, Nevada, Guam, FTA Regional Administrator, 201 Mission Street, (415) 744–3133
American Samoa, and Northern Mariana Islands. Suite 310, San Francisco, CA 94105.
X. Alaska, Idaho, Oregon, and Washington .............. FTA Regional Administrator, Jackson Federal Build- (206) 220–7954
ing, 915 Second Avenue, Suite 3142, Seattle,
WA 98174–1002.
Lower Manhattan Recovery Office ............................ FTA LMRO Director, One Bowling Green, Room (212) 668–1770
436, New York, NY 10004.
§ 601.3 General responsibilities. tor General and the Government Ac-

The general responsibilities of each countability Office.
of the offices which comprise the head- (c) Office of Chief Counsel. Directed by
quarters organization of FTA are: a Chief Counsel, this office provides
(a) Office of Administration. Directed legal advice and support to the Admin-
by an Associate Administrator for Ad- istrator and FTA management. The of-
ministration, this office develops and fice is responsible for reviewing devel-
administers comprehensive programs opment and management of FTA-spon-
to meet FTA’s resource management sored projects; representing the Admin-
and administrative support require- istration before civil courts and admin-
ments in the following areas: Organiza- istrative agencies; drafting and review-
tion and management planning, infor- ing legislation and regulations to im-
mation resources management, human plement the Administration’s pro-
resources, contracting and procure- grams; and working to ensure that the
ment, and administrative services. agency upholds the highest ethical
(b) Office of Budget and Policy. Di- standards. The office coordinates with
rected by an Associate Administrator and supports the U.S. Department of
for Budget and Policy, this office is re- Transportation’s General Counsel on
sponsible for policy development and FTA legal matters.
performance measurement, strategic (d) The Office of Civil Rights. Directed
and program planning, program evalua- by a Director for Civil Rights, this of-
tion, budgeting, and accounting. The fice ensures full implementation of
office provides policy direction on leg- civil rights and equal opportunity ini-
islative proposals and coordinates the tiatives by all recipients of FTA assist-
development of regulations. The office
ance, and ensures nondiscrimination in
formulates and justifies FTA budgets
the receipt of FTA benefits, employ-
within the Department of Transpor-
ment, and business opportunities. The
tation, to the Office of Management
and Budget, and Congress. The office office advises and assists the Adminis-
establishes apportionments and allot- trator and other FTA officials in ensur-
ments for program and administrative ing compliance with applicable civil
funds, ensures that all funds are ex- rights regulations, statutes and direc-
pended in accordance with Administra- tives, including but not limited to the
tion and congressional intent, and pre- Americans with Disabilities Act of 1990
pares and coordinates statutory re- (ADA), the Civil Rights Act of 1964,
ports to Congress. The office coordi- Disadvantaged Business Enterprise
nates with and supports the Depart- (DBE) participation, and Equal Em-
ment of Transportation Chief Financial ployment Opportunity, within FTA and
Officer on all FTA accounting and fi- in the conduct of Federally-assisted
nancial management matters. This of- public transportation projects and pro-
fice also serves as the audit liaison in grams. The office monitors the imple-
responding to the Office of the Inspec- mentation of and compliance with civil
Federal Transit Admin., DOT § 601.3
rights requirements, investigates com- tion, this office is responsible for the
plaints, conducts compliance reviews, evaluation and rating of proposed
and provides technical assistance to re- projects based on a set of statutory cri-
cipients of FTA assistance and mem- teria, and applies these ratings as
bers of the public. input to the Annual New Starts Report
(e) Office of Communications and Con- and funding recommendations sub-
gressional Affairs. Directed by an Asso- mitted to Congress, as well as for FTA
ciate Administrator for Communica- approval required for projects to ad-
tions and Congressional Affairs, this vance into preliminary engineering,
office is the agency’s lead office for final design, and full funding grant
media relations, public affairs, and agreements.
Congressional relations, providing (g) Office of Program Management. Di-
quick response support to the agency, rected by an Associate Administrator
the public, and Members of Congress on for Program Management, this office
a daily basis. The office distributes in- administers a national program of cap-
formation about FTA programs and ital and operating assistance by man-
policies to the public, the transit in- aging financial and technical resources
dustry, and other interested parties and by directing program implementa-
through a variety of media. This office tion. The office coordinates all grantee
also coordinates the Administrator’s directed guidance, in the form of circu-
public appearances and is responsible lars and other communications, devel-
for managing correspondence and other ops and distributes procedures and pro-
information directed to and issued by gram guidance to assist the field staff
the Administrator and Deputy Admin- in grant program administration and
istrator. fosters responsible stewardship of Fed-
(f) Office of Planning and Environment. eral transit resources by facilitating
Directed by an Associate Adminis- and assuring consistent grant develop-
trator for Planning and Development, ment and implementation nationwide
this office administers a national pro- (Statutory, Formula, Discretionary
gram of planning assistance that pro- and Earmarks). This office manages
vides funding, guidance, and technical the oversight program for agency for-
support to State and local transpor- mula grant programs and provides na-
tation agencies. In partnership with tional expertise and direction in the
the Federal Highway Administration areas of capital construction, rolling
(FHWA), this office oversees a national stock, and risk assessment techniques.
program of planning assistance and It also assists the transit industry and
certification of metropolitan and state- State and local authorities in pro-
wide planning organizations, imple- viding high levels of safety and secu-
mented by FTA Regional Offices and rity for transit passengers and employ-
FHWA Divisional Offices. The office ees through technical assistance, train-
provides national guidance and tech- ing, public awareness, drug and alcohol
nical support in emphasis areas includ- testing and state safety oversight.
ing planning capacity building, finan- (h) Office of Research, Demonstration,
cial planning, transit oriented develop- and Innovation. Directed by an Asso-
ment, joint development, project cost ciate Administrator for Research,
estimation, travel demand forecasting, Demonstration and Innovation, this of-
and other technical areas. This office fice provides transit industry leader-
also oversees the Federal environ- ship in delivery of solutions that im-
mental review process as it applies to prove public transportation. The office
transit projects throughout the coun- undertakes research, development, and
try, including implementation of the demonstration projects that help to in-
National Environmental Policy Act crease ridership; improve capital and
(NEPA), the Clean Air Act, and related operating efficiencies; enhance safety
laws and regulations. The office pro- and emergency preparedness; and bet-
vides national guidance and oversight ter protect the environment and pro-
of planning and project development mote energy independence. The office
for proposed major transit capital fixed leads FTA programmatic efforts under
guideway projects, commonly referred the National Research Programs (49
to as the New Starts program. In addi- U.S.C. 5314).
§ 601.4 49 CFR Ch. VI (10–1–07 Edition)
§ 601.4 Responsibilities of the Adminis- (3) Comments received in response to

trator. notices;
The Administrator is responsible for (4) Petitions for rulemaking and re-
the planning, direction and control of consideration;
the activities of FTA and has authority (5) Denials of petitions for rule-
to approve Federal transit grants, making and reconsideration; and
loans, and contracts. The Deputy Ad- (6) Final rules.
ministrator is the ‘‘first assistant’’ for (c) Any person may examine dock-
purposes of the Federal Vacancies Re- eted material, at any time during reg-
form Act of 1998 (Pub. L. 105–277) and ular business hours after the docket is
shall, in the event of the absence or established, and may obtain a copy of
disability of the Administrator, serve such material upon payment of a fee,
as the Acting Administrator, subject to except material ordered withheld from
the limitations in that Act. In the the public under section 552(b) of Title
event of the absence or disability of 5 of the United States Code.
both the Administrator and the Deputy (d) Any person seeking documents
Administrator, officials designated by
not described above may submit a re-
the agency’s internal order on succes-
quest under the Freedom of Informa-
sion shall serve as Acting Deputy Ad-
tion Act (FOIA) by following the proce-
ministrator and shall perform the du-
dures outlined in 49 CFR Part 7.
ties of the Administrator, except for
any non-delegable statutory and/or reg-
ulatory duties. Subpart C—Rulemaking
Procedures
Subpart B—Public Availability of
§ 601.20 Applicability.
Information
This part prescribes rulemaking pro-
§ 601.10 Sources of information. cedures that apply to the issuance,
(a) FTA guidance documents. (1) Circu- amendment and revocation of rules
lars and other guidance/policy informa- under an Act.
tion are available on FTA’s Web site:
http://www.fta.dot.gov. § 601.21 Definitions.
(2) Single copies of any guidance doc- Act means statutes granting the Sec-
ument may be obtained without charge retary authority to regulate public
by calling FTA’s Administrative Serv- transportation.
ices Help Desk, at (202) 366–4865. Administrator means the Federal
(3) Single copies of any guidance doc- Transit Administrator, the Deputy Ad-
ument may also be obtained without ministrator or the delegate of either of
charge upon written request to the As- them.
sociate Administrator for Administra-
tion, Federal Transit Administration, § 601.22 General.
400 7th Street SW., Room 9107, Wash-
ington, DC, 20590, or to any FTA re- (a) Unless the Administrator, for
gional office listed in § 601.2. good cause, finds a notice is imprac-
(b) DOT Docket Management System. tical, unnecessary, or contrary to the
Unless a particular document says oth- public interest, and incorporates such a
erwise, the following rulemaking docu- finding and a brief statement of the
ments in proceedings started after Feb- reasons for it in the rule, a notice of
ruary 1, 1997, are available for public proposed rulemaking must be issued,
review and copying at the Department and interested persons are invited to
of Transportation’s Docket Manage- participate in the rulemaking pro-
ment System, Room PL 401, 400 7th ceedings involving rules under an Act.
Street SW., Washington, DC 20590, or (b) For rules for which the Adminis-
for review and downloading through trator determines that notice is unnec-
the Internet at http://dms.dot.gov: essary because no adverse public com-
(1) Advance notices of proposed rule- ment is anticipated, the direct final
making; rulemaking procedure described in
(2) Notices of proposed rulemaking; § 601.36 of this subpart may be followed.
10
§ 601.23 Initiation of rulemaking. is granted to all persons, and it is pub-

The Administrator initiates rule- lished in the FEDERAL REGISTER.
making on his/her own motion. How- § 601.27 Contents of written comments.
ever, in so doing, he/she may, in his/her
discretion, consider the recommenda- All written comments must be in
tions of his/her staff or other agencies English and submitted in five (5) leg-
of the United States or of other inter- ible copies, unless the number of copies
ested persons. is specified in the notice. Any inter-
ested person must submit as part of
§ 601.24 Contents of notices of pro- his/her written comments all material
posed rulemaking. that he/she considers relevant to any
(a) Each notice of proposed rule- statement of fact made by him/her. In-
making is published in the FEDERAL corporation of material by reference is
REGISTER, unless all persons subject to to be avoided. However, if such incor-
it are named and are personally served poration is necessary, the incorporated
with a copy of it. material shall be identified with re-
(b) Each notice, whether published in spect to document and page.
the FEDERAL REGISTER or personally
served, includes: § 601.28 Consideration of comments re-
ceived.
(1) A statement of the time, place,
and nature of the proposed rulemaking All timely comments are considered
proceeding; before final action is taken on a rule-
(2) A reference to the authority under making proposal. Late filed comments
which it is issued; may be considered so far as prac-
(3) A description of the subjects and ticable.
issues involved or the substance and
terms of the proposed rule; § 601.29 Additional rulemaking pro-
ceedings.
(4) A statement of the time within
which written comments must be sub- The Administrator may initiate any
mitted; and further rulemaking proceedings that
(5) A statement of how and to what he/she finds necessary or desirable. For
extent interested persons may partici- example, interested persons may be in-
pate in the proceeding. vited to make oral arguments, to par-
ticipate in conferences between the Ad-
§ 601.25 Participation by interested ministrator or his/her representative at
persons. which minutes of the conference are
(a) Any interested person may par- kept, to appear at informal hearings
ticipate in rulemaking proceedings by presided over by officials designated by
submitting comments in writing con- the Administrator at which a tran-
taining information, views, or argu- script or minutes are kept, or partici-
ments. pate in any other proceeding to assure
(b) In his/her discretion, the Adminis- informed administrative action and to
trator may invite any interested per- protect the public interest.
son to participate in the rulemaking
procedures described in § 601.29. § 601.30 Hearings.
(a) Sections 556 and 557 of Title 5,
§ 601.26 Petitions for extension of time United States Code, do not apply to
to comment. hearings held under this part. Unless
A petition for extension of the time otherwise specified, hearings held
to submit comments must be received under this part are informal, non-ad-
not later than three (3) days before ex- versary, fact-finding procedures at
piration of the time stated in the no- which there are no formal pleadings or
tice. The filing of the petition does not adverse parties. Any rule issued in a
automatically extend the time for peti- case in which an informal hearing is
tioner’s comments. Such a petition is held is not necessarily based exclu-
granted only if the petitioner shows sively on the record of the hearing.
good cause for the extension, and if the (b) The Administrator designates a
extension is consistent with the public representative to conduct any hearing
interest. If an extension is granted, it held under this part. The Chief Counsel
11
§ 601.31 49 CFR Ch. VI (10–1–07 Edition)
of the Federal Transit Administration § 601.33 Processing of petitions.

designates a member of his/her staff to
(a) Each petition received under
serve as legal officer at the hearing.
§ 601.32 of this part is referred to the
§ 601.31 Adoption of final rules. head of the office responsible for the
subject matter of that petition. Unless
Final rules are prepared by rep- the Administrator otherwise specifies,
resentatives of the office concerned no public hearing, argument or other
and the Office of Chief Counsel. The proceeding is held directly on a peti-
rule is then submitted to the Adminis- tion before its disposition under this
trator for his/her consideration. If the section.
Administrator adopts the rule, it is
(b) Grants. If the Administrator de-
published in the FEDERAL REGISTER,
termines the petition contains ade-
unless all persons subject to it are
quate justification, he/she initiates
named and are personally served a copy
rulemaking action under this Subpart
of it.
C or grants the exemption, as the case
§ 601.32 Petitions for rulemaking or may be.
exemptions. (c) Denials. If the Administrator de-
termines the petition does not justify
(a) Any interested person may peti-
rulemaking or granting the exemption,
tion the Administrator to establish,
he/she denies the petition.
amend, or repeal a rule, or for a perma-
nent or temporary exemption from (d) Notification. Whenever the Admin-
FTA rules as allowed by law. istrator determines that a petition
(b) Each petition filed under this sec- should be granted or denied, the office
tion must: concerned and the Office of Chief Coun-
(1) Be submitted in duplicate to the sel prepare a notice of that grant or de-
Administrator, Federal Transit Admin- nial for issuance to the petitioner, and
istration, 400 Seventh Street, SW., the Administrator issues it to the peti-
Washington, DC 20590; tioner.
(2) State the name, street and mail-
§ 601.34 Petitions for reconsideration.
ing addresses, and telephone number of
the petitioner; if the petitioner is not (a) Any interested person may peti-
an individual, state the name, street tion the Administrator for reconsider-
and mailing addresses and telephone ation of a final rule issued under this
number of an individual designated as part. The petition must be in English
an agent of the petitioner for all pur- and submitted in duplicate to the Ad-
poses related to the petition; ministrator, Federal Transit Adminis-
(3) Set forth the text or substance of tration, 400 Seventh Street, SW., Wash-
the rule or amendment proposed, or of ington, DC, 20590, and received not
the rule from which the exemption is later than thirty (30) days after publi-
sought, or specify the rule that the pe- cation of the final rule in the FEDERAL
titioner seeks to have repealed, as the REGISTER. Petitions filed after that
case may be; time will be considered as petitions
(4) Explain the interest of the peti- filed under § 601.32. The petition must
tioner in the action requested, includ- contain a brief statement of the com-
ing, in the case of a petition for an ex- plaint and an explanation as to why
emption, the nature and extent of the compliance with the final rule is not
relief sought and a description of the practicable, is unreasonable, or is not
persons to be covered by the exemp- in the public interest.
tion; (b) If the petitioner requests the con-
(5) Contain any information and ar- sideration of additional facts, he/she
guments available to the petitioner to must state the reason the facts were
support the action sought; and not presented to the Administrator
(6) In the case of a petition for ex- within the prescribed comment period
emption, except in cases in which good of the rulemaking.
cause is shown, the petition must be (c) The Administrator does not con-
submitted at least 120 days before the sider repetitious petitions.
requested effective date of the exemp- (d) Unless the Administrator other-
tion. wise provides, the filing of a petition
12
under this section does not stay the ef- within the specified time of publication
fectiveness of the final rule. in the FEDERAL REGISTER, FTA will
publish a notice in the FEDERAL REG-
§ 601.35 Proceedings on petitions for ISTER indicating that no adverse com-
reconsideration. ment was received and confirming that
The Administrator may grant or the rule will become effective on the
deny, in whole or in part, any petition date that was indicated in the direct
for reconsideration without further final rule.
proceedings. In the event he/she deter- (d) If FTA receives any written ad-
mines to reconsider any rule, he/she verse comment or written notice of in-
may issue a final decision on reconsid- tent to submit adverse comment with-
eration without further proceedings, or in the specified time of publication in
he/she may provide such opportunity to the FEDERAL REGISTER, a notice with-
submit comment or information and drawing the direct final rule will be
data as he/she deems appropriate. published in the final rule section of
Whenever the Administrator deter- the FEDERAL REGISTER and, if FTA de-
mines that a petition should be granted cides a rulemaking is warranted, a no-
or denied, he/she prepares a notice of tice of proposed rulemaking will be
the grant or denial of a petition for re- published in the proposed rule section
consideration and issues it to the peti- of the FEDERAL REGISTER.
tioner. The Administrator may consoli- (e) An ‘‘adverse’’ comment for the
date petitions relating to the same purpose of this subpart means any
rule. comment that FTA determines is crit-
ical of the rule, suggests that the rule
§ 601.36 Procedures for direct final should not be adopted, or suggests a
rulemaking. change that should be made in the rule.
(a) Rules the Administrator judges to A comment suggesting that the policy
be non-controversial and unlikely to or requirements of the rule should or
result in adverse public comment may should not also be extended to other
be published as direct final rules. These Departmental programs outside the
include non-controversial rules that: scope of the rule is not adverse.
(1) Affect internal procedures of FTA,
such as filing requirements and rules Subpart D—Emergency Proce-
governing inspection and copying of dures for Public Transportation
documents; Systems
(2) Are non-substantive clarifications
or corrections to existing rules;
(3) Update existing forms; AUTHORITY: 49 U.S.C. 5141 and 5334; 49 CFR
1.51.
(4) Make minor changes in the sub-
stantive rule regarding statistics and SOURCE: 72 FR 912, Jan. 9, 2007, unless oth-
reporting requirements; erwise noted.
(5) Make changes to the rule imple-
menting the Privacy Act; and
(6) Adopt technical standards set by This part prescribes procedures that
outside organizations. apply to FTA grantees and subgrantees
(b) The FEDERAL REGISTER document when the President has declared a na-
will state that any adverse comment or tional or regional emergency, when a
notice of intent to submit adverse com- State Governor has declared a state of
ment must be received in writing by emergency, when the Mayor of the Dis-
FTA within the specified time after the trict of Columbia has declared a state
date of publication and that, if no writ- of emergency, or in anticipation of
ten adverse comment or written notice such declarations.
of intent to submit adverse comment is
received, the rule will become effective § 601.41 Petitions for relief.
a specified number of days after the In the case of a national or regional
date of publication. emergency or disaster, or in anticipa-
(c) If no written adverse comment or tion of such a disaster, any FTA grant-
written notice of intent to submit ad- ee or subgrantee may petition the Ad-
verse comment is received by FTA ministrator for temporary relief from
13
§ 601.42 49 CFR Ch. VI (10–1–07 Edition)
the provisions of any policy statement, (b) The docket is publicly accessible
circular, guidance document or rule. and can be accessed 24 hours a day,
seven days a week, via the Internet at
§ 601.42 Emergency relief docket. the docket facility’s Web site at http://
(a) By January 31st of each year, dms.dot.gov. Petitions may also be sub-
FTA shall establish an Emergency Re- mitted by U.S. mail or by hand deliv-
lief Docket in the publicly accessible ery to the DOT Docket Management
DOT Docket Management System Facility, Room PL–401 (Plaza Level),
(DMS) (http://dms.dot.gov). 400 7th Street, SW, Washington, DC
(b) FTA shall publish a notice in the 20590.
FEDERAL REGISTER identifying, by (c) In the event a grantee or sub-
docket number, the Emergency Relief grantee needs to request immediate re-
Docket for that calendar year. A notice lief and does not have access to elec-
shall also be published in the previous tronic means to request that relief, the
year’s Emergency Relief Docket identi- grantee or subgrantee may contact any
fying the new docket number. FTA regional office or FTA head-
(c) If the Administrator, or his/her quarters and request that FTA staff
designee, determines that an emer- submit the petition on their behalf.
gency event has occurred, or in antici- (d) Any grantee or subgrantee sub-
pation of such an event, FTA shall mitting petitions for relief or com-
place a message on its web page (http:// ments to the docket must include the
www.fta.dot.gov) indicating the Emer- agency name (Federal Transit Admin-
gency Relief Docket has been opened istration) and that calendar year’s
and including the docket number. docket number. Grantees and sub-
grantees making submissions by mail
§ 601.43 Opening the docket. or hand delivery should submit two
copies.
(a) The Emergency Relief Docket
shall be opened within two business § 601.45 Required information.
days of an emergency or disaster dec-
laration in which it appears FTA A petition for relief under this sec-
grantees or subgrantees are or will be tion shall:
impacted. (a) Identify the grantee or subgrantee
(b) In cases in which emergencies can and its geographic location;
be anticipated, such as hurricanes, (b) Specifically address how an FTA
FTA shall open the docket and place requirement in a policy statement, cir-
the message on the FTA web page in cular, or agency guidance will limit a
advance of the event. grantee’s or subgrantee’s ability to re-
(c) In the event a grantee or sub- spond to an emergency or disaster;
grantee believes the Emergency Relief (c) Identify the policy statement, cir-
Docket should be opened and it has not cular, guidance document and/or rule
been opened, that grantee or sub- from which the grantee or subgrantee
grantee may submit a petition in dupli- seeks relief; and
cate to the Administrator, via U.S. (d) Specify if the petition for relief is
mail, to: Federal Transit Administra- one-time or ongoing, and if ongoing
tion, 400 Seventh Street, SW., Wash- identify the time period for which the
ington, DC 20590; via telephone, at: relief is requested. The time period
(202) 366–4043; or via fax, at (202) 366– may not exceed three months; however,
3472, requesting opening of the Docket additional time may be requested
for that emergency and including the through a second petition for relief.
information in § 601.45. The Adminis-
trator in his/her sole discretion shall § 601.46 Processing of petitions.
determine the need for opening the (a) A petition for relief will be condi-
Emergency Relief Docket. tionally granted for a period of three
(3) business days from the date it is
§ 601.44 Posting to the docket. submitted to the Emergency Relief
(a) All petitions for relief must be Docket.
posted in the docket in order to receive (b) FTA will review the petition after
consideration by FTA. the expiration of the three business
14
days and review any comments sub- 604.19 Appeals.

mitted thereto. FTA may contact the 604.21 Judicial review.
grantee or subgrantee that submitted APPENDIX A TO PART 604
the request for relief, or any party that AUTHORITY: 49 U.S.C. 5323(d); 23 U.S.C.
submits comments to the docket, to 103(e)(4); 142(a); and 142(c); and 49 CFR 1.51.
obtain more information prior to mak-
SOURCE: 52 FR 11933, Apr. 13, 1987, unless
ing a decision. otherwise noted.
(c) FTA shall then post a decision to
the Emergency Relief Docket. FTA’s
decision will be based on whether the Subpart A—General
petition meets the criteria for use of § 604.1 Purpose.
these emergency procedures, the sub-
stance of the request, and the com- The purpose of this part is to imple-
ments submitted regarding the peti- ment section 3(f) and section 12(c)(6) of
tion. the FT Act.
(d) If FTA fails to post a response to
the request for relief to the docket
within three business days, the grantee This part applies to all applicants
or subgrantee may assume its petition and recipients of Federal financial as-
is granted until and unless FTA states sistance under:
otherwise. (a) Sections 3 (excluding section
16(b)(2)), 5, 9A, 9 or 18 of the FT Act; or
§ 601.47 Review Procedures. (b) Sections 103(e)(4), 142(a), or 142(c)
(a) FTA reserves the right to reopen of Title 23 United States Code which
any docket and reconsider any decision permit the use of Federal-Aid Highway
made pursuant to these emergency pro- funds to purchase buses.
cedures based upon its own initiative,
§ 604.5 Definitions.
based upon information or comments
received subsequent to the three busi- (a) All definitions in the FT Act (at
ness day comment period, or at the re- 49 U.S.C. 1608) are applicable to this
quest of a grantee or subgrantee upon part, except as may otherwise be pro-
denial of a request for relief. FTA shall vided in this section.
notify the grantee or subgrantee if it (b) The Acts means the FT Act and
plans to reconsider a decision. those parts of Title 23 United States
(b) FTA decision letters, either Code, 23 U.S.C. 103(e)(4), 142(a) and
granting or denying a petition, shall be 142(c), that provide for assistance to
posted in the appropriate Emergency public bodies for purchasing buses.
Relief Docket and shall reference the (c) Administrator means the Adminis-
document number of the petition to trator of FTA or his or her designee.
which it relates. (d) Categories of Revenue Vehicle
means bus or van.
PART 604—CHARTER SERVICE (e) Charter Service means transpor-
tation using buses or vans, or facilities
Subpart A—General funded under the Acts of a group of
persons who pursuant to a common
Sec. purpose, under a single contract, at a
604.1 Purpose. fixed charge (in accordance with the
604.3 Applicability. carrier’s tariff) for the vehicle or serv-
604.5 Definitions.
ice, have acquired the exclusive use of
604.7 Charter agreement.
604.9 Charter service. the vehicle or service to travel to-
604.11 Procedures for determining if there gether under an itinerary either speci-
are any willing and able private charter fied in advance or modified after hav-
operators. ing left the place of origin. This defini-
604.13 Reviewing evidence submitted by pri- tion includes the incidental use of FTA
vate charter operators. funded equipment for the exclusive
transportation of school students, per-
Subpart B—Complaint Process sonnel, and equipment.
604.15 Filing a complaint. (f) Chief Counsel means the Chief
604.17 Remedies. Counsel of FTA.
15
§ 604.7 49 CFR Ch. VI (10–1–07 Edition)
(g) Days means calendar days in sub- vide charter service in the area in
part A and Federal working days in which it is proposed to be provided.
subpart B.
(h) Designated Official means the ap- § 604.7 Charter agreement.
plicant’s and recipient’s employee au- (a) Every applicant for financial as-
thorized to file applications on behalf sistance under sections 3 (excluding
of the applicant or to enter into agree- section 16(b)(2)), 5, 9A, 9 or 18 of the FT
ments on behalf of the recipient. Act, or under 23 U.S.C. 103(e)(4), 142(a)
(i) Incidental Charter Service means or 142(c), must include two copies of a
charter service which does not: (1) charter bus agreement signed by the
interfere with or detract from the pro- applicant’s designated official with
vision of the mass transportation serv- each grant application submitted to
ice for which the equipment or facili- FTA after May 13, 1987. For FTA’s
ties were funded under the Acts; or (2) State administered programs, the
does not shorten the mass transpor- State is the applicant.
tation life of the equipment or facili- (b) The text of the agreement must
ties. be as follows:
(j) Interested Party means an indi- I, (name), (title), agree that (name of appli-
vidual, partnership, corporation, asso- cant) and all recipients through (name of ap-
ciation, or public or private organiza- plicant) will provide charter service that
tion that has a financial interest which uses equipment or facilities provided under
is adversely affected by the act or acts the Federal Mass Transit Act of 1964, as
amended (49 U.S.C. 1601 et seq.) or under 23
of a recipient regarding charter serv- U.S.C. 103(e)(4), 142(a) or 142(c) (the Acts)
ice. only to the extent that there are no private
(k) Non-urbanized area means an area charter service operators willing and able to
with a population of less than 50,000 provide the charter service that (name of ap-
people. plicant) and all recipients through (name of
(l) Recipient means one that has re- applicant) desire to provide unless one or
more of the exceptions in 49 CFR 604.9 ap-
ceived or is receiving Federal financial
plies.
assistance under the Acts. The term in- I further agree that (name of applicant)
cludes subrecipients of a recipient, sub- and all recipients through (name of appli-
recipients in FTA’s State administered cant) will comply with the provisions in 49
programs, public bodies that receive CFR part 604 before they provide any charter
assistance that will be passed on to an- service using equipment or facilities pro-
other public or quasi-public body, any vided under the Acts, that the requirements
operator for a recipient, whether pub- of 49 CFR part 604 will apply to any such
charter service that is provided, and that the
licly or privately owned, and may in-
definitions in 49 CFR part 604 apply to this
clude lessees of federally assisted buses agreement.
and other equipment. For any FTA
State administered program, the State Applicant
is the recipient.
llllllllllllllllllllllll
(m) State Administered Program means
any FTA grant program in which the Name
State is the recipient of funds, passes llllllllllllllllllllllll
the funds to subrecipients, and admin-
Title
isters the program for FTA.
(n) FT Act means the Federal Mass llllllllllllllllllllllll
Transit Act of 1964, as amended, 49 Date
U.S.C. 1601 et seq.
(o) FTA means the Federal Transit Federal Transit Administration
Administration. llllllllllllllllllllllll
(p) Willing and able means having the
desire, having the physical capability Name
of providing the categories of revenue llllllllllllllllllllllll
vehicles requested, and possessing the Title
legal authority, including the nec-
essary safety certifications, licenses llllllllllllllllllllllll
and other legal prerequisites, to pro- Date
16
(c) If FTA approves the grant appli- (b) Exceptions. (1) A recipient may
cation, the approving official shall sign provide any and all charter service
the agreement when the grant applica- with FTA funded equipment and facili-
tion is approved. One copy of the ties to the extent that there are no
signed agreement will be retained by willing and able private charter opera-
FTA and the other copy will be re- tors.
turned to the recipient, formerly the (2) A recipient may enter into a con-
applicant. tract with a private charter operator
(d) Once the applicant and FTA enter to provide charter equipment to or
into a charter agreement, the applicant service for the private charter operator
may incorporate that agreement by if:
reference into any subsequent grant (i) The private charter operator is re-
application instead of submitting an quested to provide charter service that
agreement under 49 CFR 604.7(a). exceeds its capacity; or
(e) Each State in FTA’s State admin- (ii) The private charter operator is
istered programs must: unable to provide equipment accessible
(1) Obtain a certification of compli- to elderly and handicapped persons
ance with this part from each of its itself.
current subrecipients within 60 days of (3) A recipient in a non-urbanized
May 13, 1987. The certification shall area may petition FTA for an excep-
state: ‘‘(Name of subrecipient) certifies tion to provide charter service directly
that it shall comply with 49 CFR part to the customer if the charter service
604 in the provision of any charter serv- provided by the willing and able pri-
ice provided with FTA funded equip- vate charter operator or operators
ment or facilities.’’; would create a hardship on the cus-
(2) Retain this certification as long tomer because:
as the subrecipient is a subrecipient; (i) The willing and able private char-
and ter operator or operators impose min-
(3) Assure in each application sub- imum durations pursuant to State reg-
mitted to FTA after May 13, 1987, that ulation and the desired trip length is
all subrecipients have submitted the shorter than the mandatory trip
certification. length; or
(f) If any recipient does not antici- (ii) The willing and able private oper-
pate submitting a grant application to ator or operators are located too far
FTA during Federal fiscal year 1987, from the origin of the charter service.
the recipient must submit two copies (4) Any recipient may petition the
of the agreement set forth in § 604.7(b) Administrator for an exception to pro-
of this part within 60 days of May 13, vide charter service directly to the cus-
1987, to the appropriate FTA regional tomer for special events to the extent
office. FTA will sign the agreement, re- that private charter operators are not
tain one copy of the agreement and re- capable of providing the service.
turn the other to the recipient. (5) A recipient may execute a con-
(Approved by the Office of Management and tract with a government entity or a
Budget under Control No. 2132–0543) private, non-profit organization ex-
empt from taxation under subsection
§ 604.9 Charter service. 501(c)(1), 501(c)(3), 501(c)(4), or 501(c)(19)
(a) If a recipient desires to provide of the Internal Revenue Code to pro-
any charter service using FTA equip- vide charter service upon obtaining a
ment or facilities the recipient must certification from that entity or orga-
first determine if there are any private nization which states that:
charter operators willing and able to (i) [the entity/organization] certifies
provide the charter service which the that it is a government entity or an or-
recipient desires to provide. To the ex- ganization exempt from taxation under
tent that there is at least one such pri- subsection 501(c)(1), 501(c)(3), 501(c)(4),
vate operator, the recipient is prohib- or 501(c)(19) of the Internal Revenue
ited from providing charter service Code; there will be a significant num-
with FTA funded equipment or facili- ber of handicapped persons as pas-
ties unless one or more of the excep- sengers on this charter trip; the re-
tions in § 604.9(b) applies. quested charter trip is consistent with
17
§ 604.9 49 CFR Ch. VI (10–1–07 Edition)
the function and purpose of [the entity/ profit organization exempt from tax-
organization]; and the charter trip will ation under subsection 501(c)(1),
be organized and operated in compli- 501(c)(3), 501(c)(4), or 501(c)(19) of the In-
ance with Title VI of the Civil Rights ternal Revenue Code to provide charter
Act of 1964, as amended; and, section 19 service upon obtaining a certification
of the Federal Mass Transit Act of 1964, from that entity or organization which
as amended, and 49 CFR part 27; or, 45 states that:
CFR part 80; or, [the entity/organization] certifies that it is
(ii) [the entity/organization] certifies a government entity or an organization ex-
that it is a government entity or an or- empt from taxation under subsection
ganization exempt from taxation under 501(c)(1), 501(c)(3), 501(c)(4), or 501(c)(19) of the
subsection 501(c)(1), 501(c)(3), 501(c)(4), Internal Revenue Code; more than 50% of the
or 501(c)(19) of the Internal Revenue passengers on this charter trip will be elder-
Code; [the entity/organization] is a ly; the requested charter trip is consistent
with the function and purpose of [the entity/
qualified social service agency under organization]; and the charter trip will be or-
appendix A of 49 CFR part 604, as a re- ganized and operated in compliance with
cipient of funds, either directly or indi- Title VI of the Civil Rights Act of 1964, as
rectly, under one or more of the Fed- amended; and, Section 19 of the Federal Mass
eral programs listed in appendix A; the Transit Act of 1964, as amended, and 49 CFR
requested charter trip is consistent part 27; or, 45 CFR part 80.
with the function and purpose of [the (7) A recipient may provide charter
entity/organization]; and the charter service directly to the customer where
trip will be organized and operated in a formal agreement has been executed
compliance with Title VI of the Civil between the recipient and all private
Rights Act of 1964, as amended; and, charter operators it has determined to
Section 19 of the Federal Mass Transit be willing and able in accordance with
Act of 1964, as amended, and 49 CFR this part, provided that:
part 27; or, 45 CFR part 80. (i) The agreement specifically allows
(iii) [the entity/organization] cer- the recipient to provide the particular
tifies that it is a government entity or type of charter trip;
organization exempt from taxation (ii) The recipient has provided for
under subsection 501(c)(1), 501(c)(3), such an agreement in its annual public
501(c)(4), or 501(c)(19) of the Internal charter notice published pursuant to
Revenue Code; [the entity/organiza- this part before undertaking any char-
tion] either receives or is eligible to re- ter service pursuant to this exception;
ceive directly or indirectly, from a and
State or local governmental body pub- (iii) If a recipient has received sev-
lic welfare assistance funds for pur- eral responses to its annual public
poses whose implementation may re- charter notice but ceased its review
quire the transportation of a group of process after determining that one pri-
transit-advantaged or transit-depend- vate operator was willing and able, it
ent persons; following a petition pre- must, before concluding a formal char-
sented by the State in which the entity ter agreement under this section, com-
or organization resides, FTA has deter- plete the review process to ensure that
mined in writing that an FTA recipient all the willing and able private opera-
may contract directly with the entity tors are valid parties to the agreement.
or organization for charter services; (8) During the demonstration period
the requested charter trip is consistent described in paragraph (b)(8)(iv) of this
with the functions and purposes of the section, recipients in the FTA-selected
entity or organization; and the charter sites may submit applications to pro-
trip will be organized and operated in vide charter service to an advisory
compliance with Title VI of the Civil panel equally representative of public
Rights Act of 1964, as amended; and transit providers or local business or-
section 19 of the Federal Mass Transit ganizations and local private opera-
Act of 1964, as amended, and 49 CFR tors, and which has either been created
part 27; or, 45 CFR part 80. for such purpose by the grantee, the
(6) A recipient in a non-urbanized State Department of Transportation
area may execute a contract with a (State DOT), or metropolitan planning
government entity or a private, non- organization (MPO), or which is part of
18
the recipient’s existing private sector (c) The process for requesting and
consultation process. granting an exception under 49 CFR
(i) The advisory panel will forward 604.9(b)(3):
these applications to the State DOT or (1) The recipient must provide the
MPO, which will grant those rec- private charter operators that it has
ommended by unanimous vote of the determined are willing and able in ac-
advisory panel. cordance with this part with a written
(ii) If the advisory panel does not notice explaining why it is seeking an
unanimously endorse an application, exception and state that they have at
the State DOT or MPO will make a de- least 30 days to submit written com-
cision to grant or deny the application
ments to the recipient on the request;
based on the following criteria:
(A) Cost evaluation. A recipient may (2) The recipient must send a copy of
provide charter service when it can do the notice, all comments received, and
so at a significantly lower cost than any further information it desires in
can private charter operators. Cost dif- support of its request to the Chief
ferences may be considered significant Counsel.
when there is approximately a twenty (3) The Chief Counsel shall review the
percent difference between the average materials submitted and issue a writ-
charge for service by private operators ten decision denying or granting in
and the recipient’s fully allocated cost whole or in part the request. In making
of providing the service, or when the this decision, the Chief Counsel may
advisory panel determines them to be seek such additional information as
significant. the Chief Counsel determines is needed.
(B) Equipment uniqueness. A recipient (4) Any exception that the Chief
may provide charter service using Counsel grants under 49 CFR 604.9(b)(3)
equipment that is not available from a shall be effective for not longer than 12
private source, when such equipment is months from the date that the Chief
essential to the purpose of the charter Counsel grants it.
trip.
(d) The process for requesting and
(C) Service nature. A recipient may
granting and exception under 49 CFR
provide unscheduled or demand respon-
sive service that could not be provided 604.9(b)(4):
by a private operator without advance (1) The recipient must submit its pe-
notice or at a substantial surcharge to tition for an exception to the Adminis-
the customer. trator at least 90 days prior to the day
(D) Specific local factors. A recipient or days on which it desires to provide
may provide service which responds to charter service.
a clear need that cannot be met by the (2) The petition must describe the
local private sector, and which is im- event, explain how it is special, and ex-
portant to the economic or social plain the amount of charter service
health and vitality of the local area. which private charter operators are not
(iii) The State DOT or MPO may not capable of providing.
grant applications to provide service (3) The Administrator will review the
that would jeopardize the economic vi- materials and issue a written decision
tality of individual private charter op- denying or granting in whole or in part
erators or would seriously detract from the request. In making this decision,
private charter business. the Administrator may seek such addi-
(iv) The service described in this sub- tional information as the Adminis-
section may be provided only during trator determines is needed.
the demonstration program to be con-
(4) Any exception granted by the Ad-
ducted through October 31, 1995, in the
following sites: ministrator under 49 CFR 604.9(b)(4)
(A) Monterey, California; shall be effective solely for the event
(B) Oklahoma City, Oklahoma; for which the recipient requests an ex-
(C) St. Louis, Missouri; ception.
(D) Yolo County, California;
(E) Four sites within the State of
Michigan.
19
§ 604.11 49 CFR Ch. VI (10–1–07 Edition)
(e) Any charter service that a recipi- (4) State the address to which the
ent provides under any of the excep- evidence must be sent.
tions in this part must be incidental (5) Include a statement that the evi-
charter service. dence necessary for the recipient to de-
termine if a private charter operator is
[52 FR 11933, Apr. 13, 1987, as amended at 53
FR 53355, Dec. 30, 1988; 58 FR 36899, July 9, willing and able includes only the fol-
1993; 58 FR 52685, Oct. 12, 1993; 59 FR 51134, lowing:
Oct. 7, 1994] (i) A statement that the private oper-
ator has the desire and the physical ca-
§ 604.11 Procedures for determining if pability to actually provide the cat-
there are any willing and able pri- egories of revenue vehicle specified;
vate charter operators. and
(a) To determine if there is at least (ii) A copy of the documents to show
one private charter operator willing that the private charter operator has
and able to provide the charter service the requisite legal authority to provide
that the recipient desires to provide, the proposed charter service and that
the recipient must complete a public it meets all necessary safety certifi-
participation process: cation, licensing and other legal re-
(1) At least 60 days before it desires quirements to provide the proposed
to begin to provide charter service if it charter service.
is not doing so on May 13, 1987; or (6) Include a statement that the re-
(2) Not more than 90 days after May cipient shall review only that evidence
13, 1987 if the recipient is providing submitted by the deadline, shall com-
charter service on May 13, 1987 and de- plete its review within 30 days of the
sires to continue to provide charter deadline, and within 60 days of the
service. deadline shall inform each private op-
(b) The public participation process erator that submitted evidence what
must at a minimum include: the results of the review are.
(1) Placing a notice in a newspaper, (7) Include a statement that the re-
or newspapers, of general circulation cipient shall not provide any charter
within the proposed geographic charter service using equipment or facilities
service area; funded under the Acts to the extent
(2) Sending a copy of the notice to all that there is at least one willing and
private charter service operators in the able private charter operator unless
proposed geographic charter service the recipient qualifies for one or more
area and to any private charter service of the exceptions in 49 CFR 604.9(b).
operator that requests notice; (d) Any recipient that desires to con-
(3) Sending a copy of the notice to tinue to provide charter service using
the United Bus Owners of America , FTA funded equipment or facilities
1300 L Street, NW., suite 1050, Wash- shall follow the procedures in 49 CFR
ington, DC 20005, and the American Bus 604.11 (b) and (c) annually during the
Association, 1100 New York Avenue, month in which it published its first
NW, Suite 1050, Washington, DC 20005– newspaper notice to redetermine the
3934. extent to which there is at least one
(c) The notice must: willing and able private charter oper-
ator.
(1) State the recipient’s name;
(e) Any recipient, including the State
(2) Describe the charter service that
in State administered programs, may
the recipient proposes to provide lim-
elect to comply with this procedure for
ited to the days, times of day, geo-
all of its subrecipients, or delegate this
graphic area, and categories of revenue
responsibility to the subrecipients, or
vehicle, but not the capacity or the du-
delegate this responsibility to only
ration of the charter service.
some of its subrecipients.
(3) Include a statement providing any
private charter operator desiring to be (Approved by the Office of Management and
considered willing and able with at Budget under Control No. 2132–0543)
least 30 days from the date of the no- [52 FR 11933, Apr. 13, 1987, as amended at 55
tice to submit written evidence to FR 34932, Aug. 27, 1990; 59 FR 43778, Aug. 25,
prove that it is willing and able; 1994]
20
§ 604.13 Reviewing evidence submitted in violation of the requirements of this

by private charter operators. part may submit a written complaint
(a) The recipient shall review the evi- to the FTA Regional Administrator.
dence submitted in response to the no- The complainant shall also send a copy
tice given under 49 CFR 604.11 within 30 of the complaint to the recipient (‘‘re-
days of the deadline for the submission spondent’’).
of evidence. (b) If the Regional Administrator de-
(b) Within 60 days of the deadline for termines that the complaint is not
the submission of evidence, the recipi- without obvious merit and that it
ent shall notify each private charter states grounds on which relief may be
operator that submitted evidence of granted, the Regional Administrator
the recipient’s decision. shall advise the complainant and re-
(c) The recipient must review the evi- spondent to attempt to conciliate the
dence submitted to determine if the dispute. The period for informal concil-
evidence proves that the private char- iation shall last for up to 30 days from
ter operator has: the date of receipt of the Regional Ad-
(1) The desire and the physical capa- ministrator’s order unless an extension
bility to actually provide charter serv- is mutually agreed upon by the parties.
ice using the categories of revenue ve- (c) If the parties are unable to concil-
hicles; and iate the dispute, either party may so
(2) The required legal authority and notify the Regional Administrator in
the necessary safety certifications, li- writing. The Regional Administrator
censes and other legal requirements to shall send a copy of the complaint to
provide charter service. the respondent and provide it with 30
(d) The recipient must determine days from the receipt of the notice to
that a private charter operator which provide written evidence to show that
meets the requirements in 49 CFR no violation has occurred. The respond-
604.13(c) is willing and able. ent shall provide a copy of this infor-
(e) A recipient may look behind the mation to the complainant.
evidence submitted by a private char- (d) After the Regional Administrator
ter operator only if the recipient has receives that respondent’s evidence,
reasonable cause to believe that some the Regional Administrator shall in-
or all of the evidence has been falsified. form the complainant that it has 30
(f) A recipient may, within its discre- days from the receipt of the notice to
tion, stop reviewing the evidence sub- rebut the respondent’s evidence. The
mitted by private charter operators complainant shall provide a copy of its
when the recipient has determined that rebuttal to the respondent.
there is one or more private charter op- (e) The Regional Administrator shall
erators willing and able to provide all review the evidence submitted and pre-
of the charter service that the recipi- pare a written decision. The Regional
ent proposed to provide in its notice. A Administrator shall attempt to trans-
recipient may, however, review the evi- mit the written decision to the parties
dence submitted by all private charter within 30 days of receiving all of the
operators and create a roster of willing evidence.
and able private charter operators.
(f) If the Regional Administrator de-
(g) The entity that complies with the
termines that further investigation is
public participation process under 49
necessary, including the submission of
CFR 604.11(e) shall be responsible for
additional information or the holding
complying with the requirements in 49
of an informal evidentiary hearing, the
CFR 604.13.
Regional Administrator shall so inform
(Approved by the Office of Management and the parties in writing.
Budget under Control No. 2132–0543) (g) Either party may request an in-
formal evidentiary hearing prior to the
Subpart B—Complaint Process transmission of the Regional Adminis-
trator’s decision. The Regional Admin-
§ 604.15 Filing a complaint. istrator may grant or deny the request.
(a) An interested party (‘‘complain- (h) If an informal evidentiary hearing
ant’’) who believes that a recipient is is held, the date and location shall be
21
§ 604.17 49 CFR Ch. VI (10–1–07 Edition)
arranged by the Regional Adminis- from the receipt of the notice to rebut
trator in consultation with the parties. the appellee’s response.
Any new evidence introduced by the (e) The Administrator shall endeavor
parties at the informal evidentiary to make a final determination on the
hearing shall be submitted to the Re- appeal within 10 days of the receipt of
gional Administrator within 10 days the appellant’s rebuttal.
after the hearing. [52 FR 11933, Apr. 13, 1987, as amended at 58
(i) The Regional Administrator may FR 52685, Oct. 12, 1993]
extend the deadlines imposed in this
part for administrative convenience by § 604.21 Judicial review.
notifying all parties in writing of the The Regional Administrator’s deci-
extensions. sion, or the Administrator’s decision
[52 FR 11933, Apr. 13, 1987, as amended at 58 on appeal, shall be final and conclusive
FR 52685, Oct. 12, 1993] on all parties, but it is subject to judi-
cial review pursuant to sections 701–706
§ 604.17 Remedies. of Title 5 of the United States Code.
(a) If the Regional Administrator de- [52 FR 11933, Apr. 13, 1987, as amended at 58
termines that a violation of this part FR 52685, Oct. 12, 1993]
has occurred, the Regional Adminis-
trator may order such remedies as the APPENDIX A TO PART 604
Regional Administrator determines are The following is a list of Federal assistance
appropriate. programs administered under the United
(b) If the Regional Administrator de- States Department of Health and Human
termines that there has been a con- Services (HHS). The financial assistance
tinuing pattern of violation of this under each of these HHS programs includes
part, the Regional Administrator may funding for the transportation needs of the
program beneficiaries.
bar the respondent from the receipt of
further financial assistance for mass Program title Agency
transportation facilities and equip-
Project Grant and Coopera- Public Health Service, HHS.
ment.
tive Agreements for Tuber-
[52 FR 11933, Apr. 13, 1987, as amended at 58 culosis Control Programs.
Mental Health Service for Public Health Service, HHS.
FR 52685, Oct. 12, 1993] Cuban Entrants.
Mental Health Planning and Public Health Service, HHS.
§ 604.19 Appeals. Demonstration Projects.
Alcohol, Drug Abuse Treat- Public Health Service, HHS.
(a) The losing party may appeal the ment and Rehabilitation
Regional Administrator’s decision to Block Grant.
the Administrator within 10 days of re- Family Planning-Services ..... Public Health Service, HHS.
Community Health Centers ... Public Health Service, HHS.
ceipt of the decision. The losing party Indian Health Services— Public Health Service, HHS.
(’’appellant’’) shall include in its ap- Health Management Devel-
peal the basis for the appeal and evi- opment Program.
dence to support the position. The ap- Migrant Health Centers Public Health Service, HHS.
Grants.
pellant shall send a copy of the appeal Childhood Immunization Public Health Service, HHS.
to the prevailing party (’’appellee’’). Grants.
(b) The Administrator will only take Administration for Children, Office of Human Development
Youth and Families Services, HHS.
action on an appeal if the appellant (ACYF)—Head Start.
presents evidence that there are new ACYF Child Welfare Re- Office of Human Development
matters of fact or points of law that search and Demonstration Services, HHS.
were not available or not known during Program.
ACYF Runaway and Home- Office of Human Development
the investigation of the complaint. less Youth. Services, HHS.
(c) If the Administrator takes action ACYF Adoption Opportunities Office of Human Development
on an appeal, the Administrator shall Services, HHS.
ACYF Child Abuse and Ne- Office of Human Development
provide the appellee with 10 days from glect (State Grants). Services, HHS.
the receipt of the notice to respond to ACYF Child Abuse and Ne- Office of Human Development
the evidence contained in the appeal. glect Discretionary. Services, HHS.
Administration for Native Office of Human Development
(d) The Administrator shall send a Americans (ANA) Native Services, HHS.
copy of the appellee’s response to the
American Programs—Fi-
appellant and provide it with 10 days nancial Assistance Grants.
22
Program title Agency Subpart B—School Bus Agreements

ANA Research, Demonstra- Office of Human Development 605.10 Purpose.
tion and Evaluation. Services, HHS. 605.11 Exemptions.
ANA Training and Technical Office of Human Development 605.12 Use of project equipment.
Assistance. Services, HHS. 605.13 Tripper service.
Administration of Develop- Office of Human Development
mental Disabilities (ADD)—
605.14 Agreement.
Services, HHS.
Basic Support and Advo- 605.15 Content of agreement.
cacy Grants. 605.16 Notice.
ADD Special Projects ........... Office of Human Development 605.17 Certification in lieu of notice.
Services, HHS. 605.18 Comments by private school bus oper-
ADD University Affiliated Fa- Office of Human Development ators.
cilities. Services, HHS. 605.19 Approval of school bus operations.
Administration on Aging Office of Human Development
(ADA) Special Programs Services, HHS Title III, Part
for the Aging—Grants for B—
Subpart C—Modification of Prior Agree-
Supportive Services and ments and Amendment of Application
Senior Centers. for Assistance
ADA Title III, Part C, Nutrition Office of Human Development
Services. Services, HHS. 605.20 Modification of prior agreements.
ADA Grants to Indian Tribes Office of Human Development 605.21 Amendment of applications for assist-
Services, HHS. ance.
ADA Training, Research and Office of Human Development
Discretionary Projects and Services, HHS.
Programs.
Subpart D—Complaint Procedures and
Social Service Block Grant ... Office of Human Development Remedies
Services, HHS.
Medical Assistance Program Health Care Financing Med- 605.30 Filing a complaint.
Title XIX. icaid; Administration, HHS. 605.31 Notification to the respondent.
Medicare—Supplemental Health Care Financing Admin- 605.32 Accumulation of evidentiary mate-
Medical Insurance. istration, HHS.0 rial.
Aid to Families with Depend- Family Support Administra- 605.33 Adjudication.
ent Children (AFDC)— tion, HHS. 605.34 Remedy where there has been a viola-
Maintenance Assistance.
tion of the agreement.
Work Incentive Program ....... Family Support Administra-
tion, HHS.
605.35 Judicial review.
Community Service Block Family Support Administra-
Grant (CSBG). tion, HHS. Subpart E—Reporting and Records
CSBG Discretionary Awards Family Support Administra-
tion, HHS. 605.40 Reports and information.
CSBG Discretionary Family Support Administra- APPENDIX A TO PART 605
Awards—Community Food tion, HHS.
and Nutrition. AUTHORITY: Federal Mass Transit Act of
Social Security—Disability In- Social Security Administration, 1964, as amended (49 U.S.C. 1601 et seq.); 23
surance. HHS. U.S.C. 103(e)(4); 23 U.S.C. 142 (a) and (c); and
Supplemental Security In- Social Security Administration, 49 CFR 1.51.
come. HHS.
Home Health Services and Public Health Service, HHS. SOURCE: 41 FR 14128, Apr. 1, 1976, unless
Training. otherwise noted.
Coal Miners Respiratory Im- Public Health Service, HHS.
pairment Treatment Clinics
and Services. Subpart A—General
Preventive Health Services— Public Health Service, HHS.
Sexually Transmitted Dis- § 605.1 Purpose.
eases Control Grants.
Health Programs for Refu- Public Health Service, HHS. (a) The purpose of this part is to pre-
gees. scribe policies and procedures to imple-
ment section 109(a) of the National
[53 FR 53355, Dec. 30, 1988] Mass Transportation Assistance Act of
1974 (Pub. L. 93–503; November 26, 1974;
88 Stat. 1565). Section 109(a) adds a new
PART 605—SCHOOL BUS section 3(g) to the Federal Mass Tran-
OPERATIONS sit Act of 1964, as amended (49 U.S.C.
1602(g)) and differs from section 164(b)
Subpart A—General of the Federal-Aid Highway Act of 1973
Sec. (49 U.S.C. 1602a(b)) in that section 3(g)
605.1 Purpose. applies to all grants for the construc-
605.2 Scope. tion or operation of mass transpor-
605.3 Definitions. tation facilities and equipment under
605.4 Public hearing requirement. the Federal Mass Transit Act, and is
23
§ 605.2 49 CFR Ch. VI (10–1–07 Edition)
not limited to grants for the purchase under the Acts, but does not include re-
of buses as is section 164(b). search, development and demonstra-
(b) By the terms of section 3(g) no tion projects funded under the Acts.
Federal financial assistance may be Grant contract means the contract be-
provided for the construction or oper- tween the Government and the grantee
ation of facilities and equipment for which states the terms and conditions
use in providing public mass transpor- for assistance under the Acts.
tation service to an applicant unless Government means the Government of
the applicant and the Administrator the United States of America.
enter into an agreement that the appli- Grantee means a recipient of assist-
cant will not engage in school bus oper- ance under the Acts.
ations exclusively for the transpor- Incidental means the transportation
tation of students and school per- of school students, personnel and
sonnel, in competition with private equipment in charter bus operations
school bus operators. during off peak hours which does not
interfere with regularly scheduled
§ 605.2 Scope. service to the public (as defined in the
These regulations apply to all recipi- Opinion of the Comptroller General of
ents of financial assistance for the con- the United States, B160204, December 7,
struction or operation of facilities and 1966, which is attached as appendix A of
equipment for use in providing mass this part).
transportation under: (a) The Federal Interested party means an individual,
Mass Transit Act of 1964, as amended partnership, corporation, association
(49 U.S.C. 1601 et seq.); (b) 23 U.S.C. 142 or public or private organization that
(a) and (c); and 23 U.S.C. 103 (e)(4). has a financial interest which is ad-
versely affected by the act or acts of a
§ 605.3 Definitions. grantee with respect to school bus op-
(a) Except as otherwise provided, erations.
terms defined in the Federal Mass Reasonable Rates means rates found
Transit Act of 1964, as amended (49 by the Administration to be fair and
U.S.C. 1604, 1608) are used in this part equitable taking into consideration the
as so defined. local conditions which surround the
(b) For purposes of this part— area where the rate is in question.
The Acts means the Federal Mass School bus operations means transpor-
Transit Act of 1964, as amended (49 tation by bus exclusively for school
U.S.C. 1601 et seq.); 23 U.S.C. 142 (a) and students, personnel and equipment in
(c); and 23 U.S.C. 103(e)(4). Type I and Type II school vehicles as
Administrator means the Federal Mass defined in Highway Safety Program
Transit Administrator or his designee. Standard No. 17.
Adequate transportation means trans- Tripper service means regularly sched-
portation for students and school per- uled mass transportation service which
sonnel which the Administrator deter- is open to the public, and which is de-
mines conforms to applicable safety signed or modified to accommodate the
laws; is on time; poses a minimum of needs of school students and personnel,
discipline problems; is not subject to using various fare collections or sub-
fluctuating rates; and is operated effi- sidy systems. Buses used in tripper
ciently and in harmony with state edu- service must be clearly marked as open
cational goals and programs. to the public and may not carry des-
Agreement means a contractual agree- ignations such as ‘‘school bus’’ or
ment required under section 3(g) of the ‘‘school special’’. These buses may stop
Federal Mass Transit Act of 1964, as only at a grantee or operator’s regular
amended (49 U.S.C. 1602(g)). service stop. All routes traveled by
Applicant means applicant for assist- tripper buses must be within a grant-
ance under the Acts. ee’s or operator’s regular route service
Assistance means Federal financial as indicated in their published route
assistance for the purchase of buses schedules.
and the construction or operation of fa- Urban area means the entire area in
cilities and equipment for use in pro- which a local public body is authorized
viding mass transportation services by appropriate local, State and Federal
24
law to provide regularly scheduled (1) In the case of a grant involving

mass transportation service. This in- the purchase of buses—anytime during
cludes all areas which are either: (a) the 12-month period immediately prior
Within an ‘‘urbanized area’’ as defined to August 13, 1973.
and fixed in accordance with 23 CFR (2) In the case of a grant for con-
part 470, subpart B; or (b) within an struction or operating of facilities and
‘‘urban area’’ or other built-up place as equipment made pursuant to the FT
determined by the Secretary under sec- Act as amended (49 U.S.C. 1601 et seq.),
tion 12(c)(4) of the Federal Mass Tran- anytime during the 12-month period
sit Act of 1964, as amended (49 U.S.C. immediately prior to November 26,
1608(c)(4)).
1974.
§ 605.4 Public hearing requirement.
§ 605.12 Use of project equipment.
Each applicant who engages or wish-
es to engage in school bus operations No grantee or operator of project
shall afford an adequate opportunity equipment shall engage in school bus
for the public to consider such oper- operations using buses, facilities or
ations at the time the applicant con- equipment funded under the Acts. A
ducts public hearings to consider the grantee or operator may, however, use
economic, social or environmental ef- such buses, facilities and equipment for
fects of its requested Federal financial the transportation of school students,
assistance under section 3(d) of the personnel and equipment in incidental
Federal Mass Transit Act of 1964, as charter bus operations. Such use of
amended (49 U.S.C. 1602(d)). project equipment is subject to part 604
of Federal Mass Transit Regulations.
Subpart B—School Bus
§ 605.13 Tripper service.
Agreements
The prohibition against the use of
§ 605.10 Purpose. buses, facilities and equipment funded
The purpose of this subpart is to for- under the Acts shall not apply to trip-
mulate procedures for the development per service.
of an agreement concerning school bus
operations. § 605.14 Agreement.
Except as provided in § 605.11 no as-
§ 605.11 Exemptions.
sistance shall be provided under the
A grantee or applicant may not en- Acts unless the applicant and the Ad-
gage in school bus operations in com- ministrator shall have first entered
petition with private school bus opera- into a written agreement that the ap-
tors unless it demonstrates to the sat- plicant will not engage in school bus
isfaction of the Administrator as fol- operations exclusively for the transpor-
lows: tation of students and school personnel
(a) That it operates a school system in competition with private school bus
in its urban area and also operates a operators.
separate and exclusive school bus pro-
gram for that school system; or § 605.15 Content of agreement.
(b) That private school bus operators
in the urban area are unable to provide (a) Every grantee who is not author-
adequate transportation, at a reason- ized by the Administrator under § 605.11
able rate, and in conformance with ap- of this part to engage in school bus op-
plicable safety standards; or erations shall, as a condition of assist-
(c) That it is a state or local public ance, enter into a written agreement
body or agency thereof (or a direct required by § 605.14 which shall contain
predecessor in interest which has ac- the following provisions:
quired the function of so transporting (1) The grantee and any operator of
schoolchildren and personnel along project equipment agrees that it will
with facilities to be used therefor) who not engage in school bus operations in
was so engaged in school bus oper- competition with private school bus
ations: operators.
25
§ 605.16 49 CFR Ch. VI (10–1–07 Edition)
(2) The grantee agrees that it will not its urban area a notice of its applica-
engage in any practice which con- tion and its proposed or existing school
stitutes a means of avoiding the re- bus operations;
quirements of this agreement, part 605 (b) The notice required by paragraphs
of the Federal Mass Transit Regula- (a) (1) and (2) of this section shall in-
tions, or section 164(b) of the Federal- clude the following information:
Aid Highway Act of 1973 (49 U.S.C. (1) A description of the area to be
1602a(b)). served by the applicant.
(b) Every grantee who obtains au- (2) An estimation of the number of
thorization from the Administrator to each type of bus which will be em-
engage in school bus operations under ployed on the proposed school bus oper-
§ 605.11 of this part shall, as a condition ations, and the number of weekdays
of assistance, enter into a written those buses will be available for school
agreement required by § 605.14 of this bus operations.
part which contains the following pro- (3) A statement of the time, date, and
visions: place of public hearings required under
(1) The grantee agrees that neither it section 3(d) of the Federal Mass Tran-
nor any operator of project equipment sit Act of 1964, as amended (49 U.S.C.
will engage in school bus operations in 1602(d)), to be held on the application
competition with private school bus for assistance.
operators except as provided herein.
(4) A statement setting forth reasons
(2) The grantee, or any operator of
the applicant feels it should be allowed
project equipment, agrees to promptly
to engage in school bus operations
notify the Administrator of any
under § 605.11 of this part.
changes in its operations which might
jeopardize the continuation of an ex- (c) Copies of the application for as-
emption under § 605.11. sistance and notice required by para-
(3) The grantee agrees that it will not graph (a) of this shall be available for
engage in any practice which con- inspection during the regular business
stitutes a means of avoiding the re- hours at the office of the applicant.
quirements of this agreement, part 605
§ 605.17 Certification in lieu of notice.
of the Federal Transit Administration
regulations or section 164(b) of the Fed- If there are no private school bus op-
eral-Aid Highway Act of 1973 (49 U.S.C. erators operating in the applicant’s
1602a(b)). urban area, the applicant may so cer-
(4) The grantee agrees that the tify in its application in lieu of meet-
project facilities and equipment shall ing the requirements of § 605.16. This
be used for the provision of mass trans- certification shall be accompanied by a
portation services within its urban statement that the applicant has pub-
area and that any other use of project lished, in a newspaper of general cir-
facilities and equipment will be inci- culation in its urban area, a notice
dental to and shall not interfere with stating that it has applied for assist-
the use of such facilities and equip- ance as provided under § 605.16(b) and
ment in mass transportation service to that it has certified that there are no
the public. private school bus operators operating
in its urban area. A copy of the notice
§ 605.16 Notice. as published shall be included.
(a) Each applicant who engages or
wishes to engage in school bus oper- § 605.18 Comments by private school
bus operators.
ations shall include the following in its
application: Private school bus operators may file
(1) A statement that it has provided written comments on an applicant’s
written notice to all private school bus proposed or existing school bus oper-
operators operating in the urban area ations at the time of the public hearing
of its application for assistance and its held pursuant to section 3(d) of the
proposed or existing school bus oper- Federal Mass Transit Act of 1964, as
ations; amended (49 U.S.C. 1602(d)). The com-
(2) A statement that it has published ments of private school bus operators
in a newspaper of general circulation in must be submitted by the applicant to
26
the Administrator together with the U.S.C. 1602(a)(b)), or section 3(g) of the
transcript of this public hearing. Federal Mass Transit Act of 1964, as
amended (49 U.S.C. 1602(g)), who en-
§ 605.19 Approval of school bus oper- gages or wishes to engage in school bus
ations. operations in competition with private
(a) The Administrator will consider school bus operators, shall seek modi-
the comments filed by private school fication of that agreement in accord-
bus operators prior to making any find- ance with paragraphs (b) through (d) of
ings regarding the applicant’s proposed this section.
or existing school bus operations. (b) The grantee shall develop a state-
(b) After a showing by the applicant ment setting forth in detail the reasons
that it has complied with the require- it feels it should be allowed to engage
ments of 49 U.S.C. 1602(d) and this sub- in school bus operations under § 605.11
part, the Administrator may approve of this part. A copy of the statement
its school bus operations. should be provided private school bus
(c) If the Administrator finds that operators who provide service in the
the applicant has not complied with grantee’s urban area.
the notice requirement of this part or (c) The grantee shall allow 30 days
otherwise finds that the applicant’s for persons receiving notice under this
proposed or existing school bus oper- section to respond with written com-
ations are unacceptable, he will so no- ments concerning its proposed or exist-
tify the applicant in writing, stating ing school bus operations.
the reasons for his findings. (d) After receiving written com-
(d) Within 20 days after receiving no- ments, the grantee shall send his pro-
tice of adverse findings from the Ad- posal with written comments thereon
ministrator, an applicant may file to the Administrator for his review
written objections to the Administra- under § 605.17.
tor’s findings or submit a revised pro-
posal for its school bus operations. If § 605.21 Amendment of applications
an applicant revises its proposed or ex- for assistance.
isting school bus operations, it shall Pending applications for assistance
mail a copy of these revisions along upon which public hearings have been
with the findings of the administrator held pursuant to section 3(d) of the
to private school bus operators re- Federal Mass Transit Act of 1964, as
quired to be notified under § 605.16. amended (49 U.S.C. 1602(d)), and appli-
(e) Private school bus operators who cations which have been approved by
receive notice under paragraph (d) of the Administrator but for which no
this section may within 20 days after grant contract has been executed, shall
receipt of notice file written comments be amended by the applicant to con-
on the proposed revisions with the Ad- form to this part by following the pro-
ministrator. The Administrator will cedures of § 605.20(b) through (d).
consider these comments prior to his
approval of a proposed revision by the Subpart D—Complaint Procedures
applicant. and Remedies
(f) Upon receipt of notice of approval
of its school bus operations, the appli- § 605.30 Filing a complaint.
cant may enter into an agreement with Any interested party may file a com-
the Administrator under § 605.14. plaint with the Administrator alleging
a violation or violations of terms of an
Subpart C—Modification of Prior agreement entered into pursuant to
Agreements and Amendment § 605.14. A complaint must be in writ-
of Application for Assistance ing, must specify in detail the action
claimed to violate the agreement, and
§ 605.20 Modification of prior agree- must be accompanied by evidence suffi-
ments. cient to enable the Administrator to
(a) Any grantee which, prior to the make a preliminary determination as
adoption of this part, entered into an to whether probable cause exists to be-
agreement required by section 164(b) of lieve that a violation of the agreement
the Federal-Aid Highway Act of 1973 (49 has taken place.
27
§ 605.31 49 CFR Ch. VI (10–1–07 Edition)
§ 605.31 Notification to the respondent. § 605.35 Judicial review.

On receipt of any complaint under The determination of the Adminis-
§ 605.30, or on his own motion if at any trator pursuant to this subpart shall be
time he shall have reason to believe final and conclusive on all parties, but
that a violation may have occurred, shall be subject to judicial review pur-
the Administrator will provide written suant to title 5 U.S.C. 701–706.
notification to the grantee concerned
(hereinafter called ‘‘the respondent’’) Subpart E—Reporting and Records
that a violation has probably occurred.
The Administrator will inform the re- § 605.40 Reports and information.
spondent of the conduct which con- The Administrator may order any
stitutes a probable violation of the grantee or operator for the grantee, to
agreement. file special or separate reports setting
forth information relating to any
§ 605.32 Accumulation of evidentiary transportation service rendered by
material. such grantee or operator, in addition to
The Administrator will allow the re- any other reports required by this part.
spondent not more than 30 days to APPENDIX A TO PART 605
show cause, by submission of evidence,
why no violation should be deemed to COMPTROLLER GENERAL OF THE
have occurred. A like period shall be UNITED STATES,
Washington, DC, December 7, 1966.
allowed to the complainant, if any,
DEAR MR. WILSON: The enclosure with your
during which he may submit evidence letter of October 4, 1966, concerns the legal-
to rebut the evidence offered by the re- ity of providing a grant under the Federal
spondent. The Administrator may un- Mass Transit Act of 1964 to the City of San
dertake such further investigation, as Diego, (City), California. The problem in-
he may deem necessary, including, in volved arises in connection with the defini-
his discretion, the holding of an evi- tion in subsection 9(d)(5) of the Act, 49 U.S.C.
dentiary hearing or hearings. 1608(d)(5), excluding charter or sightseeing
service from the term ‘‘mass transpor-
tation.’’
§ 605.33 Adjudication. It appears from the enclosure with your
(a) After reviewing the results of letter that the City originally included in its
such investigation, including hearing grant application a request for funds to pur-
transcripts, if any, and all evidence chase 8 buses designed for charter service.
Subsequently the City amended its applica-
submitted by the parties, the Adminis- tion by deleting a request for a portion of
trator will make a written determina- the funds attributable to the charter bus
tion as to whether the respondent has coaches. However, in addition to the 8 spe-
engaged in school bus operations in cially designed charter buses initially ap-
violation of the terms of the agree- plied for, the City allegedly uses about 40 of
ment. its transit type buses to a substantial extent
for charter-type services. In light of these
(b) If the Administrator determines
factors surrounding the application by the
that there has been a violation of the City, the enclosure requests our opinion with
agreement, he will order such remedial regard to the legality of grants under the
measures as he may deem appropriate. Act as it applies to certain matters (in effect
(c) The determination by the Admin- questions), which are numbered and quoted
istrator will include an analysis and below and answered in the order presented.
explanation of his findings. Number one:
‘‘The grant of funds to a City to purchase
buses and equipment which are intended for
§ 605.34 Remedy where there has been substantial use in the general charter bus
a violation of the agreement. business as well as in the Mass Transpor-
If the Administrator determines, pur- tation type business.’’
suant to this subpart, that there has The Federal Mass Transit Act of 1964 does
not authorize grants to assist in the pur-
been a violation of the terms of the
chase of buses or other equipment for any
agreement, he may bar a grantee or op- service other than urban mass transpor-
erator from the receipt of further fi- tation service. Section 3(a) of the Act limits
nancial assistance for mass transpor- the range of eligible facilities and equipment
tation facilities and equipment. to ‘‘* * * buses and other rolling stock, and
28
Federal Transit Admin., DOT Pt. 605, App. A
other real or personal property needed for an ‘‘Whether a grant of such funds is proper if
efficient and coordinated mass transpor- charter bus use is incidental to mass public
tation system.’’ In turn, ‘‘mass transpor- transportation operations. If so, what is the
tation’’ is defined, in section 9(d)(5) of the definition of incidental use.’’
Act, specifically to exclude charter service. We are advised by HUD that under its leg-
We are advised by the Department of Hous- islative authority, it cannot and does not
ing and Urban Development (HUD) that take charter service requirements into con-
under these provisions, the Department has sideration in any way in evaluating the
limited its grants to the purchase of buses of needs of a local mass transportation system
types suitable to meet the needs of the par- for buses or other equipment.
ticular kind of urban mass transportation HUD further advises that:
proposed to be furnished by the applicant.’’ ‘‘However, as indicated above, we are of
HUD further advises that: the opinion that any lawful use of project
‘‘One of the basic facts of urban mass equipment which does not detract from or
transportation operations is that the need interfere with the urban mass transportation
for rolling stock is far greater during the service for which the equipment is needed
morning and evening rush hours on week- would be deemed an incidental use of such
days than at any other time. For that rea- equipment, and that such use of project
son, any system which has sufficient rolling equipment is entirely permissible under our
stock to meet the weekday rush-hour needs legislation. What uses are in fact incidental,
of its customers must have a substantial under this test, can be determined only on a
amount of equipment standing idle at other case-by-case basis.’’
times, as well as drivers and other personnel In view of what we stated above in answer
being paid when there is little for them to to the first question, the first part of ques-
do. To relieve this inefficient and uneco- tion two is answered in the affirmative.
nomical situation, quite a number of cities As to the second part of the question, in
have offered incidental charter service using Security National Insurance Co. v. Secuoyah
this idle equipment and personnel during the Marina, 246F.2d 830, ‘‘incident’’ is defined as
hours when the same are not needed for reg- meaning ‘‘that which appertains to some-
ularly scheduled runs. Among the cities so thing else which is primary.’’ Thus, we can-
doing are Cleveland, Pittsburgh, Alameda, not say HUD’s definition of incidental use as
Tacoma, Detroit and Dallas. set forth above is unreasonable. Under the
‘‘Such service contributes to the success of Act involved grants may be made to pur-
urban mass transportation operations by chase buses only if the buses are needed for
bringing in additional revenues and pro- an efficient and coordinated mass transpor-
viding full employment to drivers and other tation system. It would appear that if buses
employees. It may in some cases even reduce are purchased in order to meet this need, and
the need for Federal capital grant assistance. are, in fact, used to meet such need, the use
‘‘We do not consider that there is any vio- of such buses for charter service when not
lation of either the letter or the spirit of the needed for mass transportation services
Act as a result of such incidental use f buses would, in effect, be an ‘‘incidental use,’’ inso-
in charter service. To guard against abuses, far as pertinent here. In our opinion such in-
every capital facilities grant contract made cidental use would not violate the provisions
by this Department contains the following of the 1964 Act.
provisions: Number three:
‘‘ ‘Sec. 4. Use of Project Facilities and Equip- ‘‘The grant of funds for mass public trans-
ment—The Public Body agrees that the portation purposes to a City which has ex-
Project facilities and equipment will be used pressed an intent to engage in the general
for the provision of mass transportation charter bus business when such funds would
service within its urban area for the period in effect constitute a subsidy to the City of
of the useful life of such facilities and equip- its intended charter bus operations; i.e. free-
ment. . . . The Public Body further agrees ing Municipal funds with which to purchase
that during the useful life of the Project fa- charter bus equipment.’’
cilities and equipment it will submit to HUD Section 4(a) of the 1954 Act (49 U.S.C.
such financial statements and other data as 1603(a)) provides, in part, as follows:
may be deemed necessary to assure compli- ‘‘* * * The Administrator (now Secretary),
ance with this Section.’ ’’ on the basis of engineering studies, studies of
It is our view that grants may be made to economic feasibility, and data showing the
a city under section 3(a) of the Act to pur- nature and extent of expected utilization of
chase buses needed by the city for an effi- the facilities and equipment, shall estimate
cient and coordinated mass transportation what portion of the cost of a project to be as-
system, even though the city may intend to sisted under section 1602 of this title cannot
use such buses for charter use when the be reasonably financed from revenues—
buses are not needed on regularly scheduled which portion shall hereinafter be called ‘net
runs (i.e. for mass transportation purposes) project cost’. The Federal grant for such a
project shall not exceed two-thirds of the net
and would otherwise be idle.

Number two: project cost. The remainder of the net
29
Pt. 609 49 CFR Ch. VI (10–1–07 Edition)
project cost shall be provided, in cash, from service. However, in view of the purposes of
sources other than Federal funds * * *.’’ the Act involved it is our opinion that a city
It is clear from the legislative history of which has purchased with grant funds buses
the Act involved that the ‘‘revenues’’ to be needed for an efficient mass transportation
considered are mass transportation system system, is not precluded by the act from
revenues including any revenues from inci- using such buses for charter service during
dental charter operations. There is nothing idle or off-peak periods when the buses are
in the language of the Act which requires not needed for regularly scheduled runs. As
HUD to take into account the status of the indicated above, such a use would appear to
general funds of an applicant city in deter- be an incidental use.
mining how much capital grant assistance to The fourth question is answered accord-
extend to that city. ingly.
It should be noted that in a sense nearly As requested, the correspondence enclosed
every capital grant to a city constitutes a with your letter is returned herewith.
partial subsidy of every activity of the city Sincerely yours,
which is supported by tax revenues, since it
frees tax revenues for such other uses. FRANK H. WEITZEL,
Number four: Assistant Comptroller General
‘‘With specific reference to the application of the United States.
of the City of San Diego for funds under its Enclosures:
application to the Department of Housing The Honorable Bob Wilson, House of Rep-
and Urban Development dated June 2, 1966, resentatives.
whether the Act permits a grant to purchase
equipment wherein 25 percent of such equip- MARCH 29, 1976.
ment will be used either exclusively or sub-
stantially in the operation of charter bus INFLATIONARY IMPACT STATEMENT
services.’’
FINAL REGULATIONS ON SCHOOL BUS
As to the City of San Diego’s grant appli-
OPERATIONS
cation, we have been advised by HUD as fol-
lows: I certify that, in accordance with Execu-
‘‘As explained above, the Act authorizes tive Order 11821, dated November 27, 1974, and
assistance only for facilities to be used in Departmental implementing instructions, an
mass transportation service. We could not, Inflationary Impact Statement is not re-
therefore, assist San Diego in purchasing quired for final regulations on School Bus
any equipment to be used ‘exclusively’ in the Operations.
operation of charter bus service. Further-
more, as also explained above, assisted mass ROBERT E. PATRICELLI,
transportation equipment can be used only Federal Mass Transit
incidentally for such charter services. Administrator.
‘‘Whether equipment used ‘substantially’
in such service qualifies under this rule can
be answered only in the light of the specifics
PART 609—TRANSPORTATION FOR
of the San Diego situation. * * * we have al- ELDERLY AND HANDICAPPED
ready, during our preliminary review of the PERSONS
City’s application, disallowed about $150,000
of the proposed project cost which was allo- Sec.
cated to the purchase of eight charter-type 609.1 Purpose.
buses. 609.3 Definitions.
‘‘The final application of the City of San 609.5 Applicability.
Diego is presently under active consideration
609.23 Reduced fare.
by this Department. In particular, we have
requested the City to furnish additional in- APPENDIX A TO PART 609—ELDERLY AND
formation as to the nature and extent of the HANDICAPPED
proposed use, if any, of project facilities and AUTHORITY: 49 U.S.C. 5307(d) and 5308(b); 23
equipment in charter service, so that we can U.S.C. 134, 135 and 142; 29 U.S.C. 794; 49 CFR
further evaluate the application under the 1.51.
criteria above set forth. We have also re-
quested similar information from Mr. SOURCE: 41 FR 18239, Apr. 30, 1976, unless
Fredrick J. Ruane, who has filed a tax- otherwise noted.
payers’ suit (Superior Court for San Diego
County Civil #297329) against the City, con- § 609.1 Purpose.
testing its authority to engage in charter
The purpose of this part is to estab-
bus operations.’’
As indicated above, it is clear that under lish formally the requirements of the
the Act in question grants may not legally Federal Transit Administration (FTA)
be made to purchase buses to be used ‘‘ex- on transportation for elderly and
clusively’’ in the operation of charter bus handicapped persons.
30
§ 609.3 Definitions. hours for transportation utilizing or

As used herein: involving the facilities and equipment
Elderly and handicapped persons of the project financed with assistance
means those individuals who, by reason under this section will not exceed one-
of illness, injury, age, congenital mal- half of the rates generally applicable to
function, or other permanent or tem- other persons at peak hours, whether
porary incapacity or disability, includ- the operation of such facilities and
ing those who are nonambulatory equipment is by the applicant or is by
wheelchair-bound and those with semi- another entity under lease or other-
ambulatory capabilities, are unable wise.
without special facilities or special [41 FR 18239, Apr. 30, 1976, as amended at 61
planning or design to utilize mass FR 19562, May 2, 1996]
transportation facilities and services
as effectively as persons who are not so APPENDIX A TO PART 609—ELDERLY AND
affected. HANDICAPPED
§ 609.5 Applicability. The definitions of the term elderly and
handicapped as applied under FTA’s elderly
This part, which applies to projects and handicapped half-fare program (49 CFR
approved by the Federal Transit Ad- part 609) shall apply to this rule. This per-
ministrator on or after May 31, 1976, mits a broader class of handicapped persons
applies to all planning, capital, and op- to take advantage of the exception than
erating assistance projects receiving would be permitted under the more restric-
Federal financial assistance under sec- tive definition applied to the non-discrimina-
tions 5307 or 5308 of the Federal transit tion provisions of the Department’s section
laws (49 U.S.C. Chapter 53), and non- 504 program (49 CFR 27.5), which includes
highway public mass transportation only handicapped persons otherwise unable
to use the recipient’s bus service for the gen-
projects receiving Federal financial as-
eral public.
sistance under: (1) Subsection (a) or (c) Accordingly, for the purposes of this part,
of section 142 of title 23, United States the definition of elderly persons may be deter-
Code; and (2) paragraph (4) of sub- mined by the FTA recipient but must, at a
section (e) of section 103, title 23, minimum, include all persons 65 years of age
United States Code. However, under or over.
certain circumstances evident in Similarly, the definition of handicapped
§§ 609.13 through 609.21, the latter sec- persons is derived from the existing regula-
tions apply to fixed facilities and vehi- tions at 49 CFR 609.3 which provide that
cles included in projects approved be- Handicapped persons means those individuals
who, by reason of illness, injury, age, con-
fore May 31, 1976. Sections in this part
genital malfunction, or other permanent or
on capital assistance applications, temporary incapacity or disability, includ-
fixed facilities, and vehicles apply ex- ing those who are nonambulatory wheel-
pressly to capital assistance projects chair-bound and those with semi-ambulatory
receiving Federal financial assistance capabilities, are unable without special fa-
under any of the above statutes. cilities or special planning or design to uti-
lize mass transportation facilities and serv-
[41 FR 18239, Apr. 30, 1976, as amended at 61 ices as effectively as persons who are not so
FR 19562, May 2, 1996] affected.
To assist in understanding how the defini-
§ 609.23 Reduced fare.
tions might be applied to administration of
Applicants for financial assistance the charter rule, the following questions and
under section 5307 of the Federal tran- answers previously published by FTA for the
sit laws (49 U.S.C. Chapter 53), must, as half-fare program in FTA C 9060.1, April 20,
a condition to receiving such assist- 1978, are reproduced:
ance, give satisfactory assurances, in 1. Question: Can the definition of elderly or
such manner and form as may be re- handicapped be restricted on the basis of
residency, citizenship, income, employment
quired by the Federal Transit Adminis- status, or the ability to operate an auto-
trator and in accordance with such mobile?
terms and conditions as the Federal Answer: No. Section 5(m) is applicable to
Transit Administrator may prescribe, elderly and handicapped persons. It is FTA’s
that the rates charged elderly and policy that such categorical exceptions are
handicapped persons during non-peak not permitted under the Act.
31
2. Question: Can the eligibility of temporary temporary handicaps may not be recognized
handicaps be restricted on the basis of their as handicapped by social service agencies.
duration? 9. Question: Can the operator require that
Answer: Handicaps of less than 90 days du- elderly and handicapped persons come to a
ration may be excluded. Handicaps of more central office to register for an off-peak half-
than 90 days duration must be included. fare program?
3. Question: Can the definition of handicap Answer: FTA strongly encourages opera-
be limited in any way? tors to develop procedures which maximize
Answer: FTA has allowed applicants to ex- the availability of off-peak half-fares to eli-
clude some conditions which appear to meet gible individuals. Requiring individuals to
the functional definition of handicap pro- travel to a single office which may be incon-
vided in section 5302(a)(5) of the Federal veniently located is not consistent with this
transit laws (49 U.S.C. Chapter 53). These in- policy, although it is not strictly prohibited.
clude pregnancy, obesity, drug or alcohol ad- FTA reserves the right to review such local
diction, and certain conditions which do not requirements on a case-by-case basis.
fall under the statutory definition (e.g., loss 10. Question: Must ID cards issued by one
of a finger, some chronic heart or lung condi- operator be transferable to another?
tions, controlled epilepsy, etc.). Individuals
Answer: No. However, FTA encourages con-
may also be excluded whose handicap in-
sistency among off-peak procedures and the
volves a contagious disease or poses a danger
maximizing of availability to eligible indi-
to the individual or other passengers. Other
viduals, especially among operators within a
exceptions should be reviewed on a case-by-
single urban area. Nevertheless, each oper-
case basis.
ator is permitted to require its own certifi-
4. Question: Is blindness considered a handi-
cation of individuals using its service.
cap under Section 5(m)?
Answer: Yes. 11. Question: Can an operator require an el-
5. Question: Is deafness considered a handi- derly or handicapped person to submit to a
cap under section 5(m)? procedure certifying their eligibility before
Answer: As a rule, no, because deafness, es- they can receive half-fare? For example, if
pecially on buses, is not considered a dis- an operator requires eligible individuals to
ability which requires special planning, fa- have a special ID card, can the half-fare be
cilities, or design. However, deafness is rec- denied to an individual who can otherwise
ognized as a handicap in the Department of give proof of age, etc, but does not have an
Transportation’s ADA regulation, and appli- ID card?
cants for Section 5 assistance are encouraged Answer: Yes, although FTA does not en-
to include the deaf as eligible for off-peak dorse this practice.
half-fares. [53 FR 53356, Dec. 30, 1988. Redesignated and
6. Question: Is mental illness considered a amended at 61 FR 19562, May 2, 1996]
handicap under section 5(m)?
Answer: As a rule, no, because of the dif-
ficulty in establishing criteria or guidelines PART 611—MAJOR CAPITAL
for defining eligibility. However, FTA en- INVESTMENT PROJECTS
courages applicants to provide the broadest
possible coverage in defining eligible handi-
Sec.
caps, including mental illness.
611.1 Purpose and contents.
7. Question: Can operators delegate the re-
611.3 Applicability.
sponsibility for certifying individuals as eli-
gible to other agencies? 611.5 Definitions.
Answer: Yes, provided that such agencies 611.7 Relation to planning and project de-
administer the certification of individuals in velopment processes.
an acceptable manner and are reasonably ac- 611.9 Project justification criteria for
cessible to the elderly and handicapped. grants and loans for fixed guideway sys-
Many operators currently make extensive tems.
use of social service agencies (both public 611.11 Local financial commitment criteria.
and private) to identify and certify eligible 611.13 Overall project ratings.
individuals. APPENDIX A TO PART 611—DESCRIPTION OF
8. Question: Can operators require elderly MEASURES FOR PROJECT EVALUATION.
and handicapped individuals to be recognized
by any existing agency (e.g., require that AUTHORITY: 49 U.S.C. 5309; 49 CFR 1.51
handicapped persons be receiving Social SOURCE: 65 FR 76880, Dec. 7, 2000, unless
Service or Veterans’ Administration bene- otherwise noted.
fits)?
Answer: Recognition by such agencies is § 611.1 Purpose and contents.
commonly used to certify eligible individ-
uals. However, such recognition should not (a) This part prescribes the process
be a mandatory prerequisite for eligibility. that applicants must follow to be con-
For example, many persons with eligible sidered eligible for capital investment
32
grants and loans for new fixed guide- aged to submit data for project evalua-
way systems or extensions to existing tion as described in this part.
systems (‘‘new starts’’). Also, this part (2) Such projects are still subject to
prescribes the procedures used by FTA the requirements of 23 CFR part 450
to evaluate proposed new starts and 23 CFR part 771.
projects as required by 49 U.S.C. (3) This part does not apply to
5309(e), and the scheduling of project projects for which a Full Funding
reviews required by 49 U.S.C. 5328(a). Grant Agreement (FFGA) has already
(b) This part defines how the results been executed.
of the evaluation described in para- (c) Consistent with 49 U.S.C.
graph (a) of this section will be used to: 5309(e)(8)(B), FTA will make project ap-
(1) Approve entry into preliminary proval decisions on proposed projects
engineering and final design, as re- using expedited procedures as appro-
quired by 49 U.S.C. 309(e)(6); priate, for proposed projects that are:
(2) Rate projects as ‘‘highly rec- (1) Located in a nonattainment area;
ommended,’’ ‘‘recommended,’’ or ‘‘not (2) Transportation control measures
recommended,’’ as required by 49 as defined by the Clean Air Act (42
U.S.C. 5309(e)(6); U.S.C. 7401 et seq.); and
(3) Assign individual ratings for each
(3) Required to carry out a State Im-
of the project justification criteria
plementation Plan.
specified in 49 U.S.C. 5309(e)(1)(B) and
(C); § 611.5 Definitions.
(4) Determine project eligibility for
Federal funding commitments, in the The definitions established by Titles
form of Full Funding Grant Agree- 12 and 49 of the United States Code, the
ments; Council on Environmental Quality’s
(5) Support funding recommendations regulation at 40 CFR parts 1500–1508,
for this program for the Administra- and FHWA–FTA regulations at 23 CFR
tion’s annual budget request; and parts 450 and 771 are applicable. In ad-
(6) Fulfill the reporting requirements dition, the following definitions apply:
under 49 U.S.C. 5309(o)(1), Funding Lev- Alternatives analysis is a corridor
els and Allocations of Funds, Annual level analysis which evaluates all rea-
Report, and 5309(o)(2), Supplemental sonable mode and alignment alter-
Report on New Starts. natives for addressing a transportation
(c) The information collected and problem, and results in the adoption of
ratings developed under this part will a locally preferred alternative by the
form the basis for the annual reports to appropriate State and local agencies
Congress, required by 49 U.S.C. and official boards through a public
5309(o)(1) and (2). process.
Baseline alternative is the alternative
§ 611.3 Applicability. against which the proposed new starts
(a) This part applies to all proposals project is compared to develop project
for Federal capital investment funds justification measures. Relative to the
under 49 U.S.C. 5309 for new transit no build alternative, it should include
fixed guideway systems and extensions transit improvements lower in cost
to existing systems. than the new start which result in a
(b) Projects described in paragraph better ratio of measures of transit mo-
(a) of this section are not subject to bility compared to cost than the no
evaluation under this part if the total build alternative.
amount of funding from 49 U.S.C. 5309 BRT means bus rapid transit.
will be less than $25 million, or if such Bus Rapid Transit refers to coordi-
projects are otherwise exempt from nated improvements in a transit sys-
evaluation by statute. tem’s infrastructure, equipment, oper-
(1) Exempt projects must still be ations, and technology that give pref-
rated by FTA for purposes of entering erential treatment to buses on fixed
into a Federal funding commitment as guideways and urban roadways. The in-
required by 49 U.S.C. 5309(e)(7). Spon- tention of Bus Rapid Transit is to re-
sors who believe their projects to be ex- duce bus travel time, improve service
empt are nonetheless strongly encour- reliability, increase the convenience of
33
§ 611.7 49 CFR Ch. VI (10–1–07 Edition)
users, and ultimately, increase bus rid- project costs, benefits and impacts are
ership. refined, NEPA requirements are com-
Extension to existing fixed-guideway pleted, project management plans and
system means a project to extend an ex- fleet management plans are further de-
isting fixed guideway system. veloped, and local funding commit-
FFGA means a Full Funding Grant ments are put in place.
Agreement. Secretary means the Secretary of
Final Design is the final phase of Transportation.
project development, and includes (but TEA–21 means the Transportation
is not limited to) the preparation of Equity Act for the 21st Century.
final construction plans (including con-
struction management plans), detailed § 611.7 Relation to planning and
specifications, construction cost esti- project development processes.
mates, and bid documents. All new start projects proposed for
Fixed guideway system means a mass
funding assistance under 49 USC 5309
transportation facility which utilizes
must emerge from the metropolitan
and occupies a separate right-of-way,
and Statewide planning process, con-
or rail line, for the exclusive use of
sistent with 23 CFR part 450. To be eli-
mass transportation and other high oc-
gible for FTA capital investment fund-
cupancy vehicles, or uses a fixed cat-
ing, a proposed project must be based
enary system and a right of way usable
on the results of alternatives analysis
by other forms of transportation. This
and preliminary engineering.
includes, but is not limited to, rapid
rail, light rail, commuter rail, auto- (a) Alternatives Analysis. (1) To be eli-
mated guideway transit, people mov- gible for FTA capital investment fund-
ers, ferry boat service, and fixed-guide- ing for a major fixed guideway transit
way facilities for buses (such as bus project, local project sponsors must
rapid transit) and other high occu- perform an alternatives analysis.
pancy vehicles. A new fixed guideway (2) The alternatives analysis develops
system means a newly-constructed fixed information on the benefits, costs, and
guideway system in a corridor or align- impacts of alternative strategies to ad-
ment where no such system exists. dress a transportation problem in a
FTA means the Federal Transit Ad- given corridor, leading to the adoption
ministration. of a locally preferred alternative.
Full Funding Grant Agreement means (3) The alternative strategies evalu-
an instrument that defines the scope of ated in an alternatives analysis must
a project, the Federal financial con- include a no-build alternative, a base-
tribution, and other terms and condi- line alternative, and an appropriate
tions. number of build alternatives. Where
Major transit investment means any project sponsors believe the no-build
project that involves the construction alternative fulfills the requirements
of a new fixed guideway system or ex- for a baseline alternative, FTA will de-
tension of an existing fixed guideway termine whether to require a separate
system for use by mass transit vehi- baseline alternative on a case-by-case
cles. basis.
NEPA process means those procedures (4) The locally preferred alternative
necessary to meet the requirements of must be selected from among the eval-
the National Environmental Policy Act uated alternative strategies and for-
of 1969, as amended (NEPA), at 23 CFR mally adopted and included in the met-
part 771; the NEPA process is com- ropolitan planning organization’s fi-
pleted when a Record of Decision nancially-constrained long-range re-
(ROD) or Finding of No Significant Im- gional transportation plan.
pact (FONSI) is issued. (b) Preliminary Engineering. Con-
New start means a new fixed guideway sistent with 49 USC 5309(e)(6) and
system, or an extension to an existing 5328(a)(2), FTA will approve/disapprove
fixed guideway system. entry of a proposed project into pre-
Preliminary Engineering is the process liminary engineering within 30 days of
by which the scope of the proposed receipt of a formal request from the
project is finalized, estimates of project sponsor(s).
34
(1) A proposed project can be consid- (2) FTA’s approval will be based on
ered for advancement into preliminary the results of its evaluation as de-
engineering only if: scribed in Parts §§ 611.9–611.13 of this
(i) Alternatives analysis has been Rule.
completed (3) At a minimum, a proposed project
(ii) The proposed project is adopted must receive an overall rating of ‘‘rec-
as the locally preferred alternative by ommended’’ to be approved for entry
the Metropolitan Planning Organiza- into final design.
tion into its financially constrained (4) Consistent with the Government
metropolitan transportation plan; Performance and Results Act of 1993,
(iii) Project sponsors have dem- project sponsors seeking FFGAs shall
onstrated adequate technical capa- submit a complete plan for collection
bility to carry out preliminary engi- and analysis of information to identify
neering for the proposed project; and the impacts of the new start project
(iv) All other applicable Federal and and the accuracy of the forecasts pre-
FTA program requirements have been pared during development of the
met. project.
(2) FTA’s approval will be based on (i) The plan shall provide for: Collec-
the results of its evaluation as de- tion of ‘‘before’’ data on the current
scribed in §§ 611.9–611.13. transit system; documentation of the
(3) At a minimum, a proposed project ‘‘predicted’’ scope, service levels, cap-
must receive an overall rating of ‘‘rec- ital costs, operating costs, and rider-
ommended’’ to be approved for entry ship of the project; collection of
into preliminary engineering. ‘‘after’’ data on the transit system two
(4) This part does not in any way re- years after opening of the new start
voke prior FTA approvals to enter pre- project; and analysis of the consistency
liminary engineering made prior to of ‘‘predicted’’ project characteristics
February 5, 2001. with the ‘‘after’’ data.
(5) Projects approved to advance into (ii) The ‘‘before’’ data collection
preliminary engineering receive blan- shall obtain information on transit
ket pre-award authority to incur service levels and ridership patterns,
project costs for preliminary engineer- including origins and destinations, ac-
ing activities prior to grant approval. cess modes, trip purposes, and rider
(i) This pre-award authority does not characteristics. The ‘‘after’’ data col-
constitute a commitment by FTA that lection shall obtain analogous informa-
future Federal funds will be approved tion on transit service levels and rider-
for this project. ship patterns, plus information on the
(ii) All Federal requirements must be as-built scope and capital costs of the
met prior to incurring costs in order to new start project.
retain eligibility of the costs for future (iii) The analysis of this information
FTA grant assistance. shall describe the impacts of the new
(c) Final Design. Consistent with 49 start project on transit services and
USC 5309(e)(6) and 5328(a)(3), FTA will transit ridership, evaluate the consist-
approve/disapprove entry of a proposed ency of ‘‘predicted’’ and actual project
project into final design within 120 characteristics and performance, and
days of receipt of a formal request from identify sources of differences between
the project sponsor(s). ‘‘predicted’’ and actual outcomes.
(1) A proposed project can be consid- (iv) For funding purposes, prepara-
ered for advancement into final design tion of the plan for collection and anal-
only if: ysis of data is an eligible part of the
(i) The NEPA process has been com- proposed project.
pleted; (5) Project sponsors shall collect data
(ii) Project sponsors have dem- on the current system, according to
onstrated adequate technical capa- the plan required under § 611.7(c)(4) as
bility to carry out final design for the approved by FTA, prior to the begin-
proposed project; and ning of construction of the proposed
(iii) All other applicable Federal and new start. Collection of this data is an
FTA program requirements have been eligible part of the proposed project for
met. funding purposes.
35
§ 611.7 49 CFR Ch. VI (10–1–07 Edition)
(6) This part does not in any way re- as defined, to the point of initiation of
voke prior FTA approvals to enter final revenue operations, and to absorb any
design that were made prior to Feb- additional costs incurred or neces-
ruary 5, 2001. sitated;
(7) Projects approved to advance into (iii) FTA and the grantee will estab-
final design receive blanket pre-award lish a schedule for anticipating Federal
authority to incur project costs for contributions during the final design
final design activities prior to grant and construction period; and
approval. (iv) Specific annual contributions
(i) This pre-award authority does not
under the FFGA will be subject to the
extend to right of way acquisition or
availability of budget authority and
construction, nor does it constitute a
commitment by FTA that future Fed- the ability of the grantee to use the
eral funds will be approved for this funds effectively.
project. (5) The total amount of Federal obli-
(ii) All Federal requirements must be gations under Full Funding Grant
met prior to incurring costs in order to Agreements and potential obligations
retain eligibility of the costs for future under Letters of Intent will not exceed
FTA grant assistance. the amount authorized for new starts
(d) Full funding grant agreements. (1) under 49 U.S.C. § 5309.
FTA will determine whether to execute (6) FTA may also make a ‘‘contin-
an FFGA based on: gent commitment,’’ which is subject to
(i) The evaluations and ratings estab- future congressional authorizations
lished by this rule; and appropriations, pursuant to 49
(ii) The technical capability of U.S.C. 5309(g), 5338(b), and 5338(h).
project sponsors to complete the pro- (7) Consistent with the Government
posed new starts project; and Performance and Results Act of 1993
(iii) A determination by FTA that no (GPRA), the FFGA will require imple-
outstanding issues exist that could mentation of the data collection plan
interfere with successful implementa-
prepared in accordance with
tion of the proposed new starts project.
§ 611.7(c)(4):
(2) An FFGA shall not be executed
for a project that is not authorized for (i) Prior to the beginning of construc-
final design and construction by Fed- tion activities the grantee shall collect
eral law. the ‘‘before’’ data on the existing sys-
(3) FFGAs will be executed only for tem, if such data has not already been
those projects which: collected as part of final design, and
(i) Are rated as ‘‘recommended’’ or document the predicted characteristics
‘‘highly recommended;’’ and performance of the project.
(ii) Have completed the appropriate (ii) Two years after the project opens
steps in the project development proc- for revenue service, the grantee shall
ess; collect the ‘‘after’’ data on the transit
(iii) Meet all applicable Federal and system and the new start project, de-
FTA program requirements; and termine the impacts of the project,
(iv) Are ready to utilize Federal new analyze the consistency of the ‘‘pre-
starts funds, consistent with available dicted’’ performance of the project
program authorization. with the ‘‘after’’ data, and report the
(4) In any instance in which FTA de- findings and supporting data to FTA.
cides to provide financial assistance (iii) For funding purposes, collection
under section 5309 for construction of a of the ‘‘before’’ data, collection of the
new start project, FTA will negotiate
‘‘after’’ data, and the development and
an FFGA with the grantee during final
reporting of findings are eligible parts
design of that project. Pursuant to the
terms and conditions of the FFGA: of the proposed project.
(i) A maximum level of Federal fi- (8) This part does not in any way
nancial contribution under the section alter, revoke, or require re-evaluation
5309 new starts program will be fixed; of existing FFGAs that were issued
(ii) The grantee will be required to prior to February 5, 2001.
complete construction of the project,
36
§ 611.9 Project justification criteria for (c) In evaluating proposed new starts
grants and loans for fixed guideway projects under these criteria:
systems. (1) As a candidate project proceeds
In order to approve a grant or loan through preliminary engineering and
for a proposed new starts project under final design, a greater degree of cer-
49 U.S.C. 5309, and to approve entry tainty is expected with respect to the
into preliminary engineering and final scope of the project and a greater level
design as required by section 5309(e)(6), of commitment is expected with re-
FTA must find that the proposed spect to land use.
project is justified as described in sec- (2) For the criteria under § 611.9(b)(1)–
tion 5309(e)(1)(B). (4), the proposed new start will be com-
(a) To make the statutory evalua- pared to the baseline alternative.
tions and assign ratings for project jus- (d) In evaluating proposed new starts
tification, FTA will evaluate informa- projects under these criteria, the fol-
tion developed locally through alter- lowing factors shall be considered:
natives analyses and refined through (1) The direct and indirect costs of
preliminary engineering and final de- relevant alternatives;
sign. (2) Factors such as congestion relief,
(1) The method used to make this de- improved mobility, air pollution, noise
termination will be a multiple measure pollution, energy consumption, and all
approach in which the merits of can- associated ancillary and mitigation
didate projects will be evaluated in costs necessary to carry out each alter-
terms of each of the criteria specified native analyzed, and recognize reduc-
by this section. tions in local infrastructure costs
(2) The measures for these criteria achieved through compact land use de-
are specified in Appendix A to this velopment;
rule. (3) Existing land use, mass transpor-
(3) The measures will be applied to tation supportive land use policies, and
the project as it has been proposed to future patterns;
FTA for new starts funding under 49 (4) The degree to which the project
U.S.C. 5309. increases the mobility of the mass
(4) The ratings for each of the cri- transportation dependent population or
teria will be expressed in terms of de- promotes economic development;
scriptive indicators, as follows: ‘‘high,’’ (5) Population density and current
‘‘medium-high,’’ ‘‘medium,’’ ‘‘low-me- transit ridership in the corridor;
dium,’’ or ‘‘low.’’ (6) The technical capability of the
(b) The criteria are as follows: grant recipient to construct the
(1) Mobility Improvements. project;
(2) Environmental Benefits. (7) Differences in local land, con-
(3) Operating Efficiencies. struction, and operating costs; and
(4) Transportation System User Ben- (8) Other factors as appropriate.
efits (Cost-Effectiveness). (e) FTA may amend the measures for
(5) Existing land use, transit sup- these criteria, pending the results of
portive land use policies, and future ongoing studies regarding transit ben-
patterns. efit evaluation methods.
(6) Other factors. Additional factors, (f) The individual ratings for each of
including but not limited to: the criteria described in this section
(i) The degree to which the programs will be combined into a summary rat-
and policies (e.g., parking policies, ing of ‘‘high,’’ ‘‘medium-high,’’ ‘‘me-
etc.) are in place as assumed in the dium,’’ ‘‘low-medium,’’ or ‘‘low’’ for
forecasts, project justification. ‘‘Other factors’’
(ii) Project management capability, will be considered as appropriate.
including the technical capability of
the grant recipient to construct the § 611.11 Local financial commitment
project, and criteria.
(iii) Additional factors relevant to In order to approve a grant or loan
local and national priorities and rel- under 49 U.S.C. 5309, FTA must find
evant to the success of the project. that the proposed project is supported
37
§ 611.13 49 CFR Ch. VI (10–1–07 Edition)
by an acceptable degree of local finan- section 5309(o)(1), and as required for

cial commitment, as required by sec- FTA approvals to enter into prelimi-
tion 5309(e)(1)(C). The local financial nary engineering, final design, or
commitment to a proposed project will FFGAs.
be evaluated according to the following (c) These ratings will be used to:
measures: (1) approve advancement of a pro-
(a) The proposed share of project cap- posed project into preliminary engi-
ital costs to be met using funds from neering and final design;
sources other than the section 5309 new (2) Approve projects for FFGAs;
starts program, including both the (3) Support annual funding rec-
non-Federal match required by Federal ommendations to Congress in the an-
law and any additional capital funding nual report on funding levels and allo-
(‘‘overmatch’’), and the degree to cations of funds required by 49 U.S.C.
which planning and preliminary engi- 5309(o)(1); and
neering activities have been carried (4) For purposes of the supplemental
out without funding from the section report on new starts, as required under
5309 new starts program; section 5309(o)(2).
(b) The stability and reliability of (d) FTA will assign overall ratings
the proposed capital financing plan for for proposed new starts projects based
the new starts project; and on the following conditions:
(c) The stability and reliability of (1) Projects will be rated as ‘‘rec-
the proposed operating financing plan ommended’’ if they receive a summary
to fund operation of the entire transit rating of at least ‘‘medium’’ for both
system as planned over a 20-year plan- project justification (§ 611.9) and local
ning horizon. financial commitment (§ 611.11);
(d) For each proposed project, ratings (2) Projects will be rated as ‘‘highly
for paragraphs (b) and (c) of this sec- recommended’’ if they receive a sum-
tion will be reported in terms of de- mary rating higher than ‘‘medium’’ for
scriptive indicators, as follows: ‘‘high,’’ both local financial commitment and
‘‘medium-high,’’ ‘‘medium,’’ ‘‘low-me- project justification.
dium,’’ or ‘‘low.’’ For paragraph (a) of (3) Projects will be rated as ‘‘not rec-
this section, the percentage of Federal ommended’’ if they do not receive a
funding sought from 49 U.S.C. § 5309 summary rating of at least ‘‘medium’’
will be reported. for both project justification and local
(e) The summary ratings for each financial commitment.
measure described in this section will
be combined into a summary rating of APPENDIX A TO PART 611—DESCRIPTION
‘‘high,’’ ‘‘medium-high,’’ ‘‘medium,’’ OF MEASURES USED FOR PROJECT
‘‘low-medium,’’ or ‘‘low’’ for local fi- EVALUATION.
nancial commitment.
PROJECT JUSTIFICATION
§ 611.13 Overall project ratings. FTA will use several measures to evaluate
(a) The summary ratings developed candidate new starts projects according to
for project justification local financial the criteria established by 49 U.S.C.
commitment (§ § 611.9 and 611.11) will 5309(e)(1)(B). These measures have been de-
form the basis for the overall rating for veloped according to the considerations iden-
tified at 49 U.S.C. 5309(e)(3) (‘‘Project Jus-
each project. tification’’), consistent with Executive Order
(b) FTA will assign overall ratings of 12893. From time to time, FTA has published
‘‘highly recommended,’’ ‘‘rec- technical guidance on the application of
ommended,’’ and ‘‘not recommended,’’ these measures, and the agency expects it
as required by 49 U.S.C. 5309(e)(6), to will continue to do so. Moreover, FTA may
each proposed project. well choose to amend these measures, pend-
(1) These ratings will indicate the ing the results of ongoing studies regarding
overall merit of a proposed new starts transit benefit evaluation methods. The first
four criteria listed below assess the benefits
project at the time of evaluation. of a proposed new start project by comparing
(2) Ratings for individual projects the project to the baseline alternative.
will be updated annually for purposes Therefore, the baseline alternative must be
of the annual report on funding levels defined so that comparisons with the new
and allocations of funds required by start project isolate the costs and benefits of
38
the major transit investment. At a min- times faced by all users of the transportation
imum, the baseline alternative must include system.
in the project corridor all reasonable cost-ef- (2) The absolute number of existing low in-
fective transit improvements short of invest- come households located within 1⁄2-mile of
ment in the new start project. Depending on boarding points associated with the proposed
the circumstances and through prior agree- system increment.
ment with FTA, the baseline alternative can (3) The absolute number of existing jobs
be defined appropriately in one of three within 1⁄2-mile of boarding points associated
ways. First, where the adopted financially with the proposed system increment.
constrained regional transportation plan in- (b) Environmental Benefits.
cludes within the corridor all reasonable
(1) The forecast change in criteria pollut-
cost-effective transit improvements short of
ant emissions and in greenhouse gas emis-
the new start project, a no-build alternative
sions, ascribable to the proposed new invest-
that includes those improvements may serve
ment, calculated in terms of annual tons for
as the baseline. Second, where additional
each criteria pollutant or gas (forecast year),
cost-effective transit improvements can be
compared to the baseline alternative;
made beyond those provided by the adopted
plan, the baseline will add those cost-effec- (2) The forecast net change per year (fore-
tive transit improvements. Third, where the cast year) in the regional consumption of en-
proposed new start project is part of a ergy, ascribable to the proposed new invest-
multimodal alternative that includes major ment, expressed in British Thermal Units
highway components, the baseline alter- (BTU), compared to the baseline alternative;
native will be the preferred multimodal al- and
ternative without the new start project and (3) Current Environmental Protection
associated transit services. Prior to sub- Agency designations for the region’s compli-
mittal of a request to enter preliminary en- ance with National Ambient Air Quality
gineering for the new start project, grantees Standards.
must obtain FTA approval of the definition (c) Operating Efficiencies. The forecast
of the baseline alternative. Consistent with change in operating cost per passenger-mile
the requirement that differences between the (forecast year), for the entire transit system.
new start project and the baseline alter- The new start will be compared to the base-
native measure only the benefits and costs of line alternative.
the project itself, planning factors external (d) Transportation System User Benefits
to the new start project and its supporting (Cost-Effectiveness).
bus service must be the same for both the (1) The cost effectiveness of a proposed
baseline and new start project alternatives. project shall be evaluated according to a
Consequently, the highway and transit net- measure of transportation system user bene-
works defined for the analysis must be the fits, based on a multimodal measure of per-
same outside the corridor for which the new ceived travel times faced by all users of the
start project is proposed. Further, policies transportation system, for the forecast year,
affecting travel demand and travel costs, divided by the incremental cost of the pro-
such as land use, transit fares and parking posed project. Incremental costs and benefits
costs, must be applied consistently to both will be calculated as the differences between
the baseline alternative and the new start the proposed new start and the baseline al-
project alternative. The fifth criterion, ‘‘ex- ternative.
isting land use, transit supportive land use (2) Until the effective date of the transpor-
policies, and future patterns,’’ reflects the tation system user benefits measure of cost
importance of transit-supportive local land effectiveness, cost effectiveness will be com-
use and related conditions and policies as an puted as the incremental costs of the pro-
indicator of ultimate project success. posed project divided by its incremental
(a) Mobility Improvements. transit ridership, as compared to the base-
(1) The aggregate travel time savings in line alternative.
the forecast year anticipated from the new (i) Costs include the forecast annualized
start project compared to the baseline alter- capital and annual operating costs of the en-
native. This measure sums the travel time tire transit system.
savings accruing to travelers projected to (ii) Ridership includes forecast total an-
use transit in the baseline alternative, trav- nual ridership on the entire transit system,
elers projected to shift to transit because of excluding transfers.
the new start project, and non-transit users (e) Existing land use, transit supportive
in the new start project who would benefit land use policies, and future patterns. Exist-
from reduced traffic congestion. ing land use, transit-supportive land use
(i) After September 1, 2001, FTA will em- policies, and future patterns shall be rated
ploy a revised measure of travel benefits ac- by evaluating existing conditions in the cor-
cruing to travelers. ridor and the degree to which local land use
(ii) The revised measure will be based on a policies are likely to foster transit sup-
multi-modal measure of perceived travel portive land use, measured in terms of the
39
kinds of policies in place, and the commit- taken fixed guideway systems and extensions
ment to these policies. The following factors that are related to the proposed project
will form the basis for this evaluation: under review, from sources other than the
(1) Existing land use; section 5309 new starts program (FTA’s in-
(2) Impact of proposed new starts project tent is to recognize that a region’s local fi-
on land use; nancial commitment to fixed guideway sys-
(3) Growth-management policies; tems and extensions may not be limited to a
(4) Transit-supportive corridor policies; single project).
(5) Supportive zoning regulations near (b) The stability and reliability of the pro-
transit stations; posed capital financing plan, according to:
(6) Tools to implement land use policies; (i) The stability, reliability, and level of
(7) The performance of land use policies; commitment of each proposed source of local
and match, including inter-governmental grants,
(8) Existing and planned pedestrian facili- tax sources, and debt obligations, with an
ties, including access for persons with dis- emphasis on availability within the project
abilities. development timetable;
(f) Other factors. Other factors that will be (ii) Whether adequate provisions have been
considered when evaluating projects for made to cover unanticipated cost overruns
funding commitments include, but are not and funding shortfalls; and
limited to: (iii) Whether adequate provisions have
(1) Multimodal emphasis of the locally pre- been made to fund the capital needs of the
ferred investment strategy, including the entire transit system as planned, including
proposed new start as one element; key station plans as required under 49 CFR
(2) Environmental justice considerations 37.47 and 37.51, over a 20-year planning hori-
and equity issues, zon period.
(3) Opportunities for increased access to (c) The stability and reliability of the pro-
employment for low income persons, and posed operating financing plan to fund oper-
Welfare-to-Work initiatives; ation of the entire transit system as planned
(4) Livable Communities initiatives and over a 20-year planning horizon.
local economic activities;
(5) Consideration of alternative land use
development scenarios in local evaluation PART 613—PLANNING ASSISTANCE
and decision making for the locally preferred AND STANDARDS
transit investment decision;
(6) Consideration of innovative financing, Subpart A—Metropolitan Transportation
procurement, and construction techniques,
including design-build turnkey applications; Planning and Programming
and Sec.
(7) Additional factors relevant to local and 613.100 Metropolitan transportation plan-
national priorities and to the success of the ning and programming.
project, such as Empowerment Zones,
Brownfields, and FTA’s Bus Rapid Transit Subpart B—Statewide Transportation
Demonstration Program.
Planning and Programming
LOCAL FINANCIAL COMMITMENT
613.200 Statewide transportation planning
FTA will use the following measures to and programming.
evaluate the local financial commitment to
a proposed project: Subpart C—Coordination of Federal and
(a) The proposed share of project capital Federally Assisted Programs and Projects
costs to be met using funds from sources
other than the 49 U.S.C. 5309 new starts pro- 613.300 Coordination of Federal and feder-
gram, including both the local match re- ally assisted programs and projects.
quired by Federal law and any additional AUTHORITY: 23 U.S.C. 134, 135, and 217(g); 42
capital funding (‘‘overmatch’’). Consider- U.S.C. 3334, 4233, 4332, 7410 et seq; 49 U.S.C.
ation will be given to: 5303–5306, 5323(k); and 49 CFR 1.48(b), 1.51(f)
(i) The use of innovative financing tech- and 21.7(a).
niques, as described in the May 9, 1995, FED-
ERAL REGISTER notice on FTA’s Innovative Fi-
nancing Initiative (60 FR 24682); Subpart A—Metropolitan Transpor-
(ii) The use of ‘‘flexible funds’’ as provided tation Planning and Program-
under the CMAQ and STP programs; ming
(iii) The degree to which alternatives anal-
ysis and preliminary engineering activities § 613.100 Metropolitan transportation
were carried out without funding from the planning and programming.
§ 5309 new starts program; and
(iv) The actual percentage of the cost of re- The regulations in 23 CFR 450, sub-
cently-completed or simultaneously under- part C, shall be followed in complying
40
with the requirements of this subpart. transportation facilities and equip-

The definitions in 23 CFR 450, subpart ment.
A, shall apply.
[72 FR 7285, Feb. 14, 2007] PART 622—ENVIRONMENTAL IM-
PACT AND RELATED PROCE-
Subpart B—Statewide Transpor- DURES
tation Planning and Program- Subpart A—Environmental Procedures
ming
Sec.
§ 613.200 Statewide transportation 622.101 Cross-reference to procedures.
planning and programming.
Subpart B [Reserved]
The regulations in 23 CFR 450, sub-
part B, shall be followed in complying Subpart C—Requirements for Energy
with the requirements of this subpart. Assessments
The definitions in 23 CFR 450, subpart
622.301 Buildings.
A, shall apply.
[72 FR 7285, Feb. 14, 2007] Subpart A—Environmental
Procedures
Subpart C—Coordination of Fed-
eral and Federally Assisted AUTHORITY: 42 U.S.C. 4321 et seq.; 49 U.S.C.
Programs and Projects 303(c), 5301(e), 5323, and 5324; 40 CFR 1.51.
§ 613.300 Coordination of Federal and § 622.101 Cross-reference to proce-

federally assisted programs and dures.
projects. The procedures for complying with
The coordination of Federal and fed- the National Environmental Policy Act
erally assisted programs and projects of 1969, as amended (42 U.S.C. 4321 et
implementing OMB revised Circular seq.), and related statutes, regulations,
No. A–95, which are set forth in 23 CFR and orders are set forth in part 771 of
part 420, subpart C, are incorporated title 23 of the Code of Federal Regula-
into this subpart. tions.
[41 FR 33443, Aug. 9, 1976] [52 FR 32660, Aug. 28, 1987]
PART 614—TRANSPORTATION Subpart B [Reserved]

INFRASTRUCTURE MANAGEMENT
Subpart C—Requirements for
Energy Assessments
AUTHORITY: 23 U.S.C. 303; 49 U.S.C. 5303–
5305; and 49 CFR 1.48 and 1.51.
AUTHORITY: Sec. 403(b), Pub. L. 95–620; E.O.
SOURCE: 61 FR 67175, Dec. 19, 1996, unless 12185.
otherwise noted.
§ 622.301 Buildings.
§ 614.101 Cross-reference to manage- (a) FTA assistance for the construc-
ment systems.
tion, reconstruction, or modification of
The regulations in 23 CFR Part 500, buildings for which applications are
subparts A and B shall be followed in submitted to FTA after October 1, 1980,
complying with the requirements of will be approved only after the comple-
this part. Part 500, subparts A and B tion of an energy assessment. An en-
implement 23 U.S.C. 303 for State de- ergy assessment shall consist of an
velopment, establishment, and imple- analysis of the total energy require-
mentation of systems for managing ments of a building, within the scope of
traffic congestion (CMS), public trans- the proposed construction activity and
portation facilities and equipment at a level of detail appropriate to that
(PTMS), intermodal transportation fa- scope, which considers:
cilities and systems (IMS), and traffic (1) Overall design of the facility or
monitoring for highways and public modification, and alternative designs;
41
(2) Materials and techniques used in (1) A designated recipient (designated

construction or rehabilitation; recipient has the same meaning as in 49
(3) Special or innovative conserva- U.S.C. 5307(a)(2)); or
tion features that may be used; (2) A recipient for an urbanized area
(4) Fuel requirements for heating, with a population of less than 200,000
cooling, and operations essential to the (smaller urbanized area). The State in
function of the structure, projected which the smaller urbanized area is lo-
over the life of the facility and includ- cated shall act as the recipient.
ing projected costs of this fuel; and (b) An eligible applicant, as defined
(5) Kind of energy to be used, includ- in paragraph (a) of this section, shall
ing: operate in an area that is either:
(i) Consideration of opportunities for (1) An ozone or carbon monoxide non-
using fuels other than petroleum and attainment area as specified under sec-
natural gas, and tion 107(d) of the Clean Air Act (42
(ii) Consideration of using alter- U.S.C. 7407(d)); or
(2) A maintenance area for ozone or
native, renewable energy sources.
carbon monoxide.
(b) Compliance with the require-
ments of paragraph (a) of this section [72 FR 15052, Mar. 30, 2007]
shall be documented as part of the En-
vironmental Assessment or Environ- § 624.3 Eligible activities.
mental Impact Statement for projects (a) Eligible activities include pur-
which are subject to a requirement for chasing or leasing clean fuel buses and
one. Projects for which there is no en- constructing new or improving existing
vironmental assessment or EIS shall public transportation facilities to ac-
document compliance by submission of commodate clean fuel buses.
appropriate material with the applica- (b) The term ‘‘clean fuel vehicle’’
tion for FTA assistance for actual con- means a vehicle that—
struction. (1) Is powered by—
(c) The cost of undertaking and docu- (i) Compressed natural gas;
menting an energy assessment may be (ii) Liquefied natural gas;
eligible for FTA participation if the re- (iii) Biodiesel fuels;
quirements of Federal Management (iv) Batteries;
Circular 74–4 (A–87) are met. (v) Alcohol-based fuels;
(d) This requirement shall not apply (vi) Hybrid electric;
to projects for which the final project (vii) Fuel cells;
application or environmental assess- (viii) Clean diesel, to the extent al-
ment have been submitted to FTA lowed under this section; or
prior to October 1, 1980. (ix) Other low or zero emissions tech-
nology; and
[45 FR 58038, Aug. 29, 1980] (2) The Administrator of the Environ-
mental Protection Agency has certified
PART 624—CLEAN FUELS GRANT sufficiently reduces harmful emissions.
PROGRAM (c) Eligible projects are the fol-
lowing:
(1) Purchasing or leasing clean fuel
Sec.
624.1 Eligible applicant.
buses, including buses that employ a
624.3 Eligible activities. lightweight composite primary struc-
624.5 Application process. ture, and vans for use in revenue serv-
624.7 Certification. ice. The purchase or lease of non-rev-
624.9 Grant requirements. enue vehicles is not an eligible project.
624.11 Reporting. (2) Constructing or leasing clean fuel
bus facilities or electrical recharging
AUTHORITY: 49 U.S.C. 5308; 49 U.S.C. 5334(a);
facilities and related equipment. Fa-
49 CFR 1.51.
cilities and related equipment for clean
SOURCE: 67 FR 40104, June 11, 2002, unless diesel buses are not eligible.
otherwise noted. (3) At the discretion of the Adminis-
trator, projects relating to clean fuel,
§ 624.1 Eligible applicant. biodiesel, hybrid electric, or zero emis-
(a) An eligible applicant is: sions technology buses that exhibit
42
equivalent or superior emissions reduc- (4) The applicant’s ability to imple-

tions to existing clean fuel or hybrid ment the project and facilities to
electric technologies. maintain and fuel the proposed vehi-
(4) The Federal share for eligible ac- cles;
tivities undertaken for the purpose of (5) The applicant’s coordination of
complying with or maintaining compli- the proposed project with other public
ance with the Clean Air Act under this transportation entities or other related
program shall be limited to 90 percent projects within the applicant’s Metro-
of the net (incremental) cost of the ac- politan Planning Organization or the
tivity. geographic region within which the
(i) The Administrator may exercise proposed project will operate.
discretion and determine the percent- (6) The proposed project’s ability to
age of the Federal share for eligible ac- support emerging clean fuels tech-
tivities to be less than 90 percent. nologies or advanced technologies for
(ii) An administrative determination transit buses.
per this subsection will be published in [72 FR 15053, Mar. 30, 2007]
accordance with § 624.5(a).
(5) Funding for clean diesel buses § 624.7 Certification.
shall be limited to not more than 25
percent of the amount made available The applicant must use the certifi-
each fiscal year to carry out the pro- cation contained in the Annual Notice
of Assurances and Certifications pub-
gram.
(6) Any amount made available for lished in the FEDERAL REGISTER each
October.
this section shall remain available to
an eligible activity for two years after § 624.9 Grant requirements.
the fiscal year for which the amount is
provided. Any amount that remains A grant under this section shall be
unobligated at the end of the three- subject to the following requirements
year-period shall be added to the of 49 U.S.C. 5307(d):
amount made available to carry out (a) General. All recipients shall main-
the program in the following fiscal tain and report financial and operating
information on an annual basis, as pre-
year.
scribed in 49 CFR part 630, and the
[67 FR 40104, June 11, 2002, as amended at 72 most recent National Transit Database
FR 15053, Mar. 30, 2007] Reporting Manual.
(b) Labor standards. As a condition of
§ 624.5 Application process. financial assistance under 49 U.S.C.
(a) FTA shall publish a Notice of 5308, the interests of employees af-
Funding Availability in the FEDERAL fected by the assistance shall be pro-
REGISTER each fiscal year that funding tected under arrangements that the
is made available for the Clean Fuels Secretary of Labor concludes are fair
program. The notice shall provide the and equitable.
criteria by which the eligible projects (c) Satisfactory continuing control. An
will be evaluated for selection and the FTA grantee shall:
Administrator’s determination of the (1) Maintain control over federally
net Federal share for projects funded funded property;
under this Part. (i) Ensure that it is used in transit
(b) The Administrator shall deter- service; and
mine the criteria for selecting proposed (ii) Dispose of it in accordance with
projects for funding, which may in- Federal requirements.
clude, but are not limited to the fol- (2) Under this paragraph (c), if the
lowing factors: grantee leases federally funded prop-
(1) Whether the proposed project is a erty to another party, the lease must
transportation control measure in an provide the grantee satisfactory con-
approved State Implementation Plan; tinuing control over the use of that
(2) The benefits of the proposed property as determined in two areas:
project in reducing transportation-re- real property (land) and facilities; and
lated pollutants; personal property (equipment and roll-
(3) Consistency with the recipient’s ing stock, both revenue and non-rev-
fleet management plan; enue).
43
§ 624.11 49 CFR Ch. VI (10–1–07 Edition)
(d) Maintenance. The grant applicant § 624.11 Reporting.

shall certify annually that pursuant to (a) Recipients of financial assistance
49 U.S.C. 5307(d)(1)(C), it will maintain under 49 U.S.C. 5308 who purchase or
(federally funded) facilities and equip- lease hybrid electric, battery electric
ment. In addition, the grantee shall and fuel cell vehicles shall report semi-
keep equipment and facilities acquired annually the following information to
with Federal assistance in good oper- the appropriate FTA Regional Office
ating order, which includes mainte- for the first three years of the useful
nance of rolling stock (revenue and life of the vehicle:
non-revenue), machinery and equip- (1) Vehicle miles traveled;
ment, and facilities. (2) Fuel/energy costs;
(e) Rates charged elderly and persons (3) Vehicle fuel/energy consumption
with disabilities during nonpeak hours. In and oil consumption;
accordance with 49 U.S.C. 5307(d)(1)(D), (4) Number of road calls or break-
the grant applicant shall certify that downs resulting from clean fuel and ad-
the rates charged the elderly and per- vanced propulsion technology systems,
sons with disabilities during nonpeak and
hours for fixed-route transportation (5) Maintenance costs associated with
using facilities and equipment financed the clean fuels or advanced propulsion
with Federal assistance from FTA will system.
not exceed one-half of the rates gen- (b) Recipients of financial assistance
erally applicable to other persons at under 49 U.S.C. 5308 who purchase or
peak hours, whether the operation is lease compressed natural gas (CNG),
liquefied natural gas (LNG), and lique-
by the applicant or by another entity
fied petroleum gas (LPG) vehicles may
under lease or otherwise.
report the information described in
(f) Use of competitive procurements. paragraph (a) of this section, but this
Pursuant to 49 U.S.C. 5307(d)(1)(E), the reporting is voluntary.
grant applicant shall certify that it (c) Recipients of financial assistance
will use competitive procurements and under 49 U.S.C. 5308 that purchase or
will not use procurements employing lease clean diesel vehicles are not re-
exclusionary or discriminatory speci- quired to report information beyond
fications. FTA grant reporting requirements for
(g) Compliance with Buy America provi- capital projects.
sions. The grant applicant shall certify
[67 FR 40104, June 11, 2002, as amended at 72
that in carrying out a procurement au- FR 15053, Mar. 30, 2007]
thorized for this program, the appli-
cant will comply with applicable Buy
America laws.
PART 630—UNIFORM SYSTEM OF
(h) Certification that local funds are
ACCOUNTS AND RECORDS AND
available for the project. The grant ap- REPORTING SYSTEM
plicant shall certify that the local
Sec.
funds are or will be available to carry
630.1 Purpose.
out the project. 630.2 Scope.
(i) Compliance with national policy 630.3 Definitions.
concerning elderly persons and individ- 630.4 Requirements.
uals with disabilities. The grant appli- 630.5 Failure to report data.
cant shall certify that it will comply 630.6 Late and incomplete reports.
with the requirements of 49 U.S.C. 630.7 Failure to respond to questions.
630.8 Questionable data items.
5301(d) concerning the rights of elderly 630.9 Notice of FTA action.
persons and persons with disabilities. 630.10 Waiver of reporting requirements.
(j) FTA Master Agreement. The grant 630.11 Data adjustments.
applicant shall comply with applicable 630.12 Display of OMB control numbers.
provisions of the FTA Master Agree- APPENDIX A TO PART 630—OVERVIEW AND EX-
ment which is incorporated by ref- PLANATION OF THE URBAN MASS TRANS-
erence in the grant agreement. PORTATION INDUSTRY UNIFORM SYSTEM OF
ACCOUNTS AND RECORDS AND REPORTING
[72 FR 15053, Mar. 30, 2007] SYSTEM
44
AUTHORITY: Sec. 111, Pub. L. 93–503, 88 Stat. tem of Accounts and Records and the
1573 (49 U.S.C. 1611); Secs. 303(a) and 304(c), Reporting Manual means the most re-
Public Law 97–424, 96 Stat. 2141 (49 U.S.C. cently issued edition of the reference
1607); and 49 CFR 1.51.
documents.
SOURCE: 58 FR 4888, Jan. 15, 1993, unless Days mean calendar days.
otherwise noted. The Federal Transit Act means the
Federal Transit Act, as amended (49
§ 630.1 Purpose. U.S.C. 1601a et seq.)
The purpose of this part is to pre- Mass Transportation Agency or transit
scribe requirements and procedures agency means an agency authorized to
necessary for compliance with the Uni- transport people by bus, rail, or other
form System of Accounts and Records conveyance, either publicly or pri-
and Reporting System mandated by vately owned, and which provides to
section 15 of the Federal Transit Act, the public general or special service
as amended, 49 U.S.C. 1611, and to set (but not including school, charter, or
forth the procedures for addressing a sightseeing service) on a regular and
reporting agency’s failure to comply continuing, scheduled or unscheduled,
with these requirements. basis. Transit agencies are classified
according to the mode of transit serv-
§ 630.2 Scope. ice operated. A multi-mode transit
This part applies to all applicants agency operates two or more modes,
and beneficiaries of Federal financial which are defined in the current edi-
assistance under section 9 of the Fed- tions of the Urban Mass Transpor-
eral Transit Act, as amended (49 U.S.C. tation Industry Uniform System of Ac-
1607a). counts and Records and the Reporting
Manual.
§ 630.3 Definitions. Reference Document(s) means the cur-
(a) Except as otherwise provided, rent editions of the Urban Mass Trans-
terms defined in the Federal Transit portation Industry Uniform System of
Act, as amended (49 U.S.C. 1601 et seq.), Accounts and Records, and the Report-
are used in this part as so defined. ing Manual. These documents are sub-
(b) Terms defined in the current edi- ject to periodic revision. Beneficiaries
tions of the Urban Mass Transpor- and applicants are responsible for using
tation Industry Uniform System of Ac- the current editions of the reference
counts and Records and the annual Re- documents.
porting Manual, are used in this part Reporting agency means the agency
as so defined. required to submit a report under sec-
(c) For purposes of this part: tion 15.
Administrator means the Federal
Transit Administrator or the Adminis- § 630.4 Requirements.
trator’s designee. (a) Uniform system of accounts and
Applicant means an applicant for as- records. Each applicant for and direct
sistance under section 9 of the Federal beneficiary of Federal financial assist-
Transit Act, as amended. ance under section 9 of the Federal
Assistance means Federal financial Transit Act must comply with the ap-
assistance for the acquisition, con- plicable requirements of the section 15
struction, or operation of public mass Uniform System of Accounts and
transportation services. Records, as set forth in the current edi-
Beneficiary means any organization tion of the ‘‘Urban Mass Transpor-
operating and delivering urban transit tation Industry Uniform System of Ac-
services that directly receives benefits counts and Records’’; the ‘‘Reporting
from assistance under section 9 of the Manual’’; Circulars; and other ref-
Federal Transit Act, as amended. erence documentation.
Chief Executive Officer (CEO) means (b) Reporting system. Each applicant
the principal executive in charge of for, and direct beneficiary of, Federal
and responsible for the reporting agen- financial assistance under section 9 of
cy. the Federal Transit Act must comply
Current edition of the Urban Mass with the applicable requirements of the
Transportation Industry Uniform Sys- section 15 Reporting System, as set
45
§ 630.5 49 CFR Ch. VI (10–1–07 Edition)
forth in the current edition of the port data under § 630.05 provided that
‘‘Urban Mass Transportation Industry the reporting agency has exhausted all
Uniform System of Accounts and possibilities for obtaining this informa-
Records’’; the ‘‘Reporting Manual’’; tion.
Circulars; and other reference docu-
mentation. § 630.7 Failure to respond to questions.
(c) Copies. Copies of these referenced The FTA will review each section 15
documents are available from the Fed- report to verify the reasonableness of
eral Transit Administration, Office of the data submitted. If any of the data
Grants Management, Audit Review and do not appear reasonable, the FTA will
Analysis Division, P.O. Box 61126, notify the reporting agency of this fact
Washington, DC 20039–1126. These ref- and request written justification to
erence documents are subject to peri- document the accuracy of the ques-
odic revision. Revisions of these docu- tioned data. Failure of a reporting
ments will be mailed to all persons re- agency to make a good faith written
quired to comply and a notice of any response to this request will be treated
significant changes in these reference under § 630.5 as failure to report data.
documents will be published in FED-
ERAL REGISTER. § 630.8 Questionable data items.
The FTA may enter a zero or adjust
§ 630.5 Failure to report data. any questionable data item(s) in a re-
Failure to report data in accordance porting agency’s section 15 report used
with this part will result in the report- in computing the section 9 apportion-
ing agency being ineligible to receive ment. These adjustments may be made
any section 9 grants directly or indi- if any data appear inaccurate or have
rectly (e.g., a public agency receiving not been collected and reported in ac-
The FTA funds through another public cordance with the FTA’s definitions
agency rather than directly from the and/or confidence and precision levels,
FTA). This ineligibility applies to all or if there is lack of adequate docu-
reporting agencies without regard to mentation or a reliable recordkeeping
the size of the urbanized area served by system.
the reporting agency.
§ 630.9 Notice of FTA action.
§ 630.6 Late and incomplete reports. Before taking final action under
(a) Late reports. Each reporting agen- § 630.5, § 630.6, § 630.7 or § 630.8, the FTA
cy shall ensure that its report is re- will transmit a written request to the
ceived by the FTA on due dates pre- reporting agencies to provide the nec-
scribed in the annual Reporting Man- essary information within a specified
ual. A reporting agency may request an reasonable period of time. The FTA
extension of 30 days after the due date. will advise the reporting agency of its
The FTA will treat a failure to submit final decision in this regard.
the required report by the due date as
failure to report data under § 630.05. § 630.10 Waiver of reporting require-
(b) Incomplete reports. The FTA will ments.
treat any report or submission which Waivers of one or more sections of
does not contain all the necessary re- the reporting requirements may be
porting forms, data, or certifications granted at the discretion of the Admin-
for services directly operated by the re- istrator on a written showing that the
porting agency in substantial conform- party seeking the waiver cannot fur-
ance with the definitions, procedures, nish the required data without unrea-
and format requirements set out in the sonable expense and inconvenience.
section 15 Uniform System of Accounts Each waiver will be for a specified pe-
and Records and Reporting System as riod of time.
failure to report data under § 630.05.
The FTA will treat the submission of a § 630.11 Data adjustments.
report with incomplete data or missing Errors in the data used in making
forms for services provided under con- the apportionment may be discovered
tract to the reporting agency by pri- after any particular year’s apportion-
vate or public carriers as failure to re- ment is completed. If so, the FTA shall
46
make adjustments to correct these er- chased service during the maximum service
rors in a subsequent year’s apportion- period.
ment to the extent feasible.
B. Purpose of This Appendix
§ 630.12 Display of OMB control num- This appendix presents a general introduc-
bers. tion to the structure and operation of the
All of the information collection re- two Systems. It is not a detailed set of in-
quests in this part have been approved structions for completion of a Section 15 re-
by the Office of Management and Budg- port or establishment of a System of Ac-
counts and Records. Persons in need of more
et under control number 2132–0008.
information should refer to the current edi-
APPENDIX A TO PART 630—OVERVIEW tions of the Urban Mass Transportation In-
AND EXPLANATION OF THE URBAN
dustry Uniform System of Accounts and
Records and the Reporting Manual, available
MASS TRANSPORTATION INDUSTRY
from: Federal Transit Administration, Audit
UNIFORM SYSTEM OF ACCOUNTS AND Review and Analysis Division, Office of Cap-
RECORDS AND REPORTING SYSTEM ital and Formula Assistance, P.O. Box 61126,
A. Introduction Washington, DC 20039–1126.
The FTA periodically updates these ref-
Section 15 of the Federal Transit Act, as erence documents or supplements them to
amended, provides for establishment of two revise or clarify section 15 definitions, re-
information-gathering analytic systems: A
porting forms and instructions. Section 630.4
Uniform System of Accounts and Records,
makes clear that reporting agencies must
and a Reporting System for the collection
and dissemination of public mass transpor- use the most recent edition of reference doc-
tation financial and operating data by uni- uments and reporting forms to comply with
form categories. The purpose of these two the section 15 requirements. The FTA there-
Systems is to provide information on which fore encourages local officials to check with
to base public transportation planning and the FTA before completing a Section 15 re-
public sector investment decisions. The sec- port to avoid unnecessary efforts and delays.
tion 15 system is administered by the Fed-
eral Transit Administration (FTA). C. Special (Reduced) Reporting Requirements
The Uniform System of Accounts and Records Certain information collection and record-
consists of: ing requirements were tailored to accommo-
• Various categories of accounts and date the unique characteristics of certain
records for classifying financial and oper-
transportation modes. Reduced requirements
ating data;
were permitted during limited time periods
• Precise definitions as to what data ele-
ments are to be included in these categories; to ease transition to complete reporting for
and these modes. Reduced reporting require-
• Definitions of practices for systematic ments for commuter rail systems and van-
colloection and recording of such informa- pool services ended in the 1987 report year. In
tion. addition, the reduced reporting requirements
• While a specific accounting system is for private subscription and private noncon-
recommended for this recordkeeping, it is tract conventional bus service is eliminated
possible to make a translation from most ex- for the 1992 report year.
isting accounting systems to comply with
the Section 15 Reporting System, which con- D. A Single Required Level of Section 15
sists of forms and procedures: Reporting and Recordkeeping
• For transmitting data from transit agen- The FTA has developed a single required
cies to the FTA; reporting format for use by all transit agen-
• For editing and storing the data; and
cies. The single required level accommodates
• For the FTA to report information to
variations in size, local laws, and modes of
various groups.
Under the terms of section 15 of the Fed- transport.
eral Transit Act, as amended, all applicants The Uniform Systems also contain a lim-
for, and beneficiaries of, Federal assistance ited amount of additional more detailed fi-
under section 9 of the Act (under the formula nancial and operational data that can be
grant programs) must comply with the Re- submitted at the reporting agency’s option.
porting System and the Uniform System of Because the optional subcategories of data
Accounts and Records in order to be eligible can be aggregated to the required level,
for Federal grants. It should be noted that these subcategories define the more aggre-
separate and complete Section 15 reports gated data. The definitions for data reported
must be submitted by or for each purchased at the required level are consistent with, and
transportation service provider that operates summarized from, those for the more de-
100 or more revenue vehicles for the pur- tailed optional data.
47
Pt. 630, App. A 49 CFR Ch. VI (10–1–07 Edition)
E. The Uniform System of Accounts and Records Operating expenses can be identified either
in function or object class categories, or
The Uniform System of Accounts and
cross-classified, allowing identification using
Records (USOA) consists of a financial ac-
both categories. The Uniform System also
counting and operational recordkeeping sys-
tem designed for mass transportation man- categorizes expenditures by four basic func-
agers and planners. Its uniformity permits tions submitted by all reporting agencies. A
more thorough and accurate comparisons limited number of additional details are op-
and analyses of different transit agencies’ tional. All reporting agencies are required to
operating costs and efficiencies than if each use a single set of object class categories.
had a unique recordkeeping and accounting The Uniform System has a single set of
system. The System establishes various cat- revenue object classes to be used by all re-
egories of accounts and records for porting agencies, and provides a limited
classifying mass transportation operating number of additional details that are op-
and financial data, and includes precise defi- tional.
nitions of transportation terminology to en- The Uniform System provides a classifica-
sure that all users share a common under- tion for sources and uses of capital to be sub-
standing of how to use and interpret the col- mitted by all reporting agencies. These clas-
lected data. sifications replace capital information pre-
viously required on the balance sheet and
(1) Use of the Accounts and Records System capital subsidiary schedule.
Beneficiaries of, and applicants for, Fed- The Uniform System of Accounts and
eral assistance are not required to use the Records also includes collecting and record-
Uniform System of Accounts and Records in ing of certain operating data elements.
keeping their own records. If an applicant or Details and definitions of the expense ob-
beneficiary chooses not to use the System, ject classes, functions, revenue object class-
however, it must nevertheless be able to es, sources and uses of capital, and operating
translate its accounts and records system to data elements are contained in the current
the accounts prescribed in the System. The edition of the ‘‘Reporting Manual,’’ which is
accounting system that the reporting agency updated annually, and the USOA reference
uses must permit preparation of financial documents.
and operating data that conform to the Uni-
F. The Reporting System
form System directly from its records at the
end of the fiscal year, and must be consistent (1) The Section 15 Reporting System con-
with the following: sists of forms and procedures for transmit-
(i) The data must have been developed ting data from transit agencies to the FTA.
using the accrual method of accounting. All beneficiaries of Federal financial assist-
Those transit systems that use cash-basis ac- ance must submit the required forms and in-
counting, in whole or in part, must make formation in order to allow the FTA to: (1)
work sheet adjustments in their account Store and generate information on the Na-
books to record the data on the accrual tion’s mass transportation systems; and (2)
basis. calculate apportionment allocations for the
(ii) Reporting agencies must follow or be section 9 formula grant program (for urban-
able to directly translate their system to the ized areas of 200,000 or more inhabitants).
accounting treatment specified in the publi- Agencies submitting Section 15 reports may
cation ‘‘Uniform System of Accounts and only submit data for transit services which
Records.’’ they directly operate and purchase under
(iii) The reporting agency’s accounting contract from public agencies and/or private
categories (chart of accounts) must be cor- carriers.
rectly related, using a clear audit trail, to Separate and complete Section 15 reports
the accounting categories prescribed in the must be submitted by or for each purchased
Uniform System of Accounts and Records. transportation service provider that operates
100 or more revenue vehicles for the pur-
(2) General Structure of Uniform System of chased service during the maximum service
Accounts and Records period. The reporting requirements include
In the Section 15 Uniform System of Ac- the following major segments, which are
counts and Records, operating expenses in- based on information assembled through the
curred by the transit system are classified Uniform System of Accounts and Records:
by transit mode. The FTA developed expense 1. Capital report.
classifications in two dimensions for uni- 2. Revenue report.
formity and to enhance the usefulness of the 3. Expense report.
data collected under section 15. The classi- 4. Nonfinancial operating data reports.
fications are typical of those of most transit 5. Miscellaneous auxiliary questionnaires
accounting systems. The two dimensions are: and subsidiary schedules.
(i) The type of expenditure (expense object 6. Data declarations.
(2) The Section 15 Reporting System in-
class); and
(ii) The function or activity performed. cludes two data declarations.
48
Federal Transit Admin., DOT Pt. 633
(a) The Chief Executive Officer (CEO) Cer- Condition II. The reporting agency (1) uses
tification. an internal accounting system other than
The CEO of each reporting agency is re- the accounting system prescribed by the
quired to submit a certification with each USOA, (2) uses the accrual basis of account-
annual Section 15 report. The certification ing, (3) directly translates the system and
must attest: accounting categories, using a clear audit
• To the accuracy of all data contained in trail, to the accounting treatment and cat-
the Section 15 report; egories specified by the USOA, and (4) has
• That all data submitted in the Section 15 previously submitted a Section 15 report
report are in accord with Section 15 defini- that was compiled using the same internal
tions; accounting system and translation to the
• If applicable, that the reporting agency’s USOA and was reviewed by an independent
accounting system used to derive all data auditor.
submitted in the Section 15 report is the sec- For agencies that have received a waiver,
tion 15 Uniform System of Accounts and the CEO annual Certification must verify
Records and that a Section 15 report using that the financial data meet one of the above
this system was certified by an independent two conditions.
auditor in a previous report year; Additionally, all reporting agencies that
• If applicable, the fact that the reporting are in or serve urbanized areas with popu-
agency’s internal accounting system is other lations of 200,000 or more and whose report
than the Uniform System of Accounts and covers 100 or more vehicles in annual max-
Records, and that its: (i) accounting system imum service across all modes and types of
uses the accrual basis of accounting, (ii) ac- service must have an independent auditor re-
counting system is directly translated, using view all section 15 data used in the section 9
a clear audit trail, to the accounting treat- formula allocation. The statement should
ment and categories specified by the section discuss, by mode and type of service: direc-
15 Uniform System of Accounts and Records, tional route miles, vehicle revenue miles,
and (iii) accounting system and direct trans- passenger miles, and operating cost, and in-
lation to the Uniform System of Accounts clude both directly operated and purchased
and Records are the same as those certified service. The independent, certified public ac-
by an independent auditor in a previous re-
countant shall perform the verification in
porting year; and
accordance with the ‘‘Statements on Stand-
• That a 100% count of passenger mile data
ards for Attestation Engagements’’ issued by
was conducted or that the sampling method
the American Institute of Certified Public
used to collect passenger mile data for each
Accountants. The specific procedures to be
mode/type of service meets the FTA require-
reviewed are described in the most recent
ments.
Section 15 Reporting Manual.
(b) Auditor Statement on Section 15 Finan-
cial Data Reporting Forms and Section 9
Data. PART 633—PROJECT
Reporting agencies must submit with their MANAGEMENT OVERSIGHT
Section 15 report a statement signed by an
independent public accountant or other re-
sponsible independent entity such as a state Subpart A—General Provisions
audit agency. This statement must express Sec.
an opinion on whether the financial data re- 633.1 Purpose.
porting forms in the Section 15 report 633.3 Scope.
present fairly, in all material respects, the 633.5 Definitions.
information required to be set forth therein
in accordance with the Uniform System of Subpart B—Project Management Oversight
Accounts and Records. The statement shall
Services
also indicate whether any of the reporting
forms or data elements do not conform to 633.11 Covered projects.
the section 15 requirements, and describe the 633.13 Initiation of PMO services.
discrepancies. The statement must consider 633.15 Access to information.
both required and optional data entries. 633.17 PMO contractor eligibility.
Each agency is required to file an Auditor 633.19 Financing the PMO program.
Statement unless it received a written waiv-
er from the FTA. The criteria in either Con- Subpart C—Project Management Plans
dition I or Condition II for granting a finan-
cial data waiver are: 633.21 Basic requirement.
Condition I. The reporting agency (1) has 633.23 FTA review of PMP.
adopted the Industry Uniform System of Ac- 633.25 Contents of a project management
counts and Records (USOA) and (2) has pre- plan.
viously submitted a Section 15 report that 633.27 Implementation of a project manage-
was compiled using the USOA and was re- ment plan.
viewed by an independent auditor; or 633.29 PMP waivers.
49
§ 633.1 49 CFR Ch. VI (10–1–07 Edition)
AUTHORITY: 49 U.S.C. 1601 et. seq., 1619. ment’s participation in a project; sets
SOURCE: 54 FR 36711, Sept. 1, 1989, unless forth the scope of a project; and sets
otherwise noted. forth the mutual understanding, terms,
and conditions relating to the con-
Subpart A—General Provisions struction and management of a project.
Major capital project means a project
§ 633.1 Purpose. that:
This part implements section 324 of (1) Involves the construction of a new
the Surface Transportation and Uni- fixed guideway or extension of an exist-
form Relocation Assistance Act of 1987 ing fixed guideway;
(Pub. L. 100–17), which added section 23 (2) Involves the rehabilitation or
to the FT Act. The part provides for a modernization of an existing fixed
two-part program for major capital guideway with a total project cost in
projects receiving assistance from the excess of $100 million; or
agency. First, subpart B discusses
(3) The Administrator determines is a
project management oversight, de-
signed primarily to aid FTA in its role major capital project because the
of ensuring successful implementation project management oversight pro-
of federally-funded projects. Second, gram will benefit specifically the agen-
subpart C discusses the project man- cy or the recipient. Typically, this
agement plan (PMP) required of all means a project that:
major capital projects. The PMP is de- (i) Generally is expected to have a
signed to enhance the recipient’s plan- total project cost in excess of $100 mil-
ning and implementation efforts and to lion or more to construct;
assist FTA’s grant application analysis (ii) Is not exclusively for the routine
efforts. acquisition, maintenance, or rehabili-
tation of vehicles or other rolling
§ 633.3 Scope.
stock;
This rule applies to a recipient of (iii) Involves new technology;
Federal financial assistance under- (iv) Is of a unique nature for the re-
taking a major capital project using
cipient; or
funds made available under:
(a) Sections 3, 9, or 18 of the Federal (v) Involves a recipient whose past
Mass Transit Act of 1964, as amended; experience indicates to the agency the
(b) 23 U.S.C. 103(e)(4); or appropriateness of the extension of this
(c) Section 14(b) of the National Cap- program.
ital Transportation Amendments of Project management oversight means
1979 (93 Stat. 1320, Pub. L. 96–184). the monitoring of a major capital
project’s progress to determine wheth-
§ 633.5 Definitions. er a project is on time, within budget,
As used in this part: in conformance with design criteria,
Administrator means the Adminis- constructed to approved plans and
trator of the Federal Transit Adminis- specifications and is efficiently and ef-
tration or the Administrator’s des- fectively implemented.
ignee. Project management plan means a
Days means calendar days. written document prepared by a recipi-
Fixed guideway means any public ent that explicitly defines all tasks
transportation facility which utilizes
necessary to implement a major cap-
and occupies a separate right-of-way or
ital project.
rails. This includes, but is not limited
to, rapid rail, light rail, commuter rail, Recipient means a direct recipient of
automated guideway transit, people Federal financial assistance from FTA.
movers, and exclusive facilities for FT Act means the Federal Mass Tran-
buses and other high occupancy vehi- sit Act of 1964, as amended.
cles. FTA means the Federal Transit Ad-
Full funding agreement means a writ- ministration.
ten agreement between FTA and a re-
cipient that establishes a financial
ceiling with respect to the Govern-
50
Subpart B—Project Management § 633.19 Financing the PMO program.

Oversight Services (a) FTA is authorized to expend up to
1⁄2 of 1 percent of the funds made avail-
§ 633.11 Covered projects. able each fiscal year under sections 3,
The Administrator may contract for 9, or 18 of the FT Act, 23 U.S.C.
project management oversight services 103(e)(4), or section 14(b) of the Na-
when the following two conditions tional Capital Transportation Amend-
apply: ments of 1979 (93 Stat. 1320) to contract
(a) The recipient is using funds made with any person or entity to provide a
available under section 3, 9, or 18 of the project management oversight service
Federal Mass Transit Act of 1964, as in connection with a major capital
amended; 23 U.S.C. 103(e)(4); or section project as defined in this part.
14(b) of the National Capital Transpor- (b) A contract entered into between
tation Amendments of 1979; and FTA and a person or entity for project
(b) The project is a ‘‘major capital management oversight services under
project’’. this part will provide for the payment
by FTA of 100 percent of the cost of
§ 633.13 Initiation of PMO services. carrying out the contract.
PMO services will be initiated as
soon as it is practicable, once the agen- Subpart C—Project Management
cy determines this part applies. In Plans
most cases, this means that PMO will
begin during the preliminary engineer- § 633.21 Basic requirement.
ing phase of the project. However, con-
(a) If a project meets the definition
sistent with other provisions in this
of major capital project, the recipient
part, the Administrator may determine
shall submit a project management
that a project is a ‘‘major capital
plan prepared in accordance with
project’’ at any point during its imple-
§ 633.25 of this part, as a condition of
mentation. Should this occur, PMO
Federal financial assistance. As a gen-
will begin as soon as practicable after
eral rule, the PMP must be submitted
this agency determination.
during the grant review process and is
§ 633.15 Access to information. part of FTA’s grant application review.
This section applies if:
A recipient of FTA funds for a major (1) The project fails under one of the
capital project shall provide the Ad-
automatic major capital investment
ministrator and the PMO contractor
project categories (§ 633.5(1) or (2) of
chosen under this part access to its
this part); or
records and construction sites, as rea-
(2) FTA makes a determination that
sonably may be required.
a project is a major capital project,
§ 633.17 PMO contractor eligibility. consistent with the definition of major
capital project in § 633.5. This deter-
(a) Any person or entity may provide mination normally will be made during
project management oversight services
the grant review process. However,
in connection with a major capital
FTA may make such determination
project, with the following exceptions:
after grant approval.
(1) An entity may not provide PMO
(b)(1) FTA will notify the recipient
services for its own project; and
when it must submit the PMP. Nor-
(2) An entity may not provide PMO
mally, FTA will notify the recipient
services for a project if there exists a
sometime during the grant review
conflict of interest.
process. If FTA determines the project
(b) In choosing private sector persons
is major under its discretionary au-
or entities to provide project manage-
thority after the grant has been ap-
ment oversight services, FTA uses the
proved, FTA will inform the recipient
procurement requirements in the gov-
of its determination as soon as pos-
ernment-wide procurement regula-
sible.
tions, found at 48 CFR CH I.
51
§ 633.23 49 CFR Ch. VI (10–1–07 Edition)
(2) Once FTA has notified the recipi- (j) Criteria and procedures to be used
ent that it must submit a plan, the re- for testing the operational system or
cipient will have a minimum of 90 days its major components;
to submit the plan.
§ 633.27 Implementation of a project
§ 633.23 FTA review of PMP. management plan.
Within 60 days of receipt of a project (a) Upon approval of a project man-
management plan, the Administrator agement plan by the Administrator the
will notify the recipient that: recipient shall begin implementing the
plan.
(a) The plan is approved; (b) If a recipient must modify an ap-
(b) The plan is disapproved, including proved project management plan, the
the reasons for the disapproval; recipient shall submit the proposed
(c) The plan will require modifica- changes to the Administrator along
tion, as specified, before approval; or with an explanation of the need for the
(d) The Administrator has not yet changes.
completed review of the plan, and state (c) A recipient shall submit periodic
when it will be reviewed. updates of the project management
plan to the Administrator. Such up-
§ 633.25 Contents of a project manage- dates shall include, but not be limited
ment plan. to:
At a minimum, a recipient’s project (1) Project budget;
management plan shall include— (2) Project schedule;
(a) A description of adequate recipi- (3) Financing, both capital and oper-
ent staff organization, complete with ating;
well-defined reporting relationships, (4) Ridership estimates, including op-
statements of functional responsibil- erating plan; and
ities, job descriptions, and job quali- (5) Where applicable, the status of
fications; local efforts to enhance ridership when
estimates are contingent, in part, upon
(b) A budget covering the project
the success of such efforts.
management organization, appropriate
(d) A recipient shall submit current
consultants, property acquisition, util-
data on a major capital project’s budg-
ity relocation, systems demonstration
et and schedule to the Administrator
staff, audits, and such miscellaneous
on a monthly basis.
costs as the recipient may be prepared
to justify; § 633.29 PMP waivers.
(c) A construction schedule; A waiver will be considered upon ini-
(d) A document control procedure tiation by the grantee or by the agency
and recordkeeping system; itself. The Administrator may, on a
(e) A change order procedure which case-by-case basis, waive:
includes a documented, systematic ap- (a) Any of the PMP elements in
proach to the handling of construction § 633.25 of this part if the Administrator
change orders; determines the element is not nec-
(f) A description of organizational essary for a particular plan; or
structures, management skills, and (b) The requirement of having a new
staffing levels required throughout the project management plan submitted
construction phase; for a major capital project if a recipi-
(g) Quality control and quality assur- ent seeks to manage the major capital
ance programs which define functions, project under a previously-approved
procedures, and responsibilities for project management plan.
construction and for system installa-
tion and integration of system compo- PART 639—CAPITAL LEASES
nents;
(h) Material testing policies and pro- Subpart A—General
cedures;
Sec.
(i) Plan for internal reporting re- 639.1 General overview of this part.
quirements including cost and schedule
639.3 Purpose of this part.

control procedures; and 639.5 Scope of this part.
52
639.7 Definitions. equipment on the condition that the
leasing arrangements are more cost ef-
Subpart B—Requirements fective than purchase or construction.
639.11 Lease qualification requirements. [63 FR 68367, Dec. 10, 1998]
639.13 Eligible types of leases.
639.15 Eligible forms of grant.
639.17 Eligible lease costs.
§ 639.5 Scope of this part.
639.19 Other Federal requirements. This part applies to all requests for
capital assistance under Chapter 53 of
Subpart C—Cost-Effectiveness Title 49 of the United States Code
639.21 Determination of cost-effectiveness. where the proposed method of obtain-
639.23 Calculation of purchase or construc- ing a capital asset is by lease rather
tion cost. than purchase or construction.
639.25 Calculation of lease cost.
639.27 Minimum criteria. [63 FR 68367, Dec. 10, 1998]
Subpart D—Lease Management § 639.7 Definitions.

639.31 Early lease termination or modifica- In this part:
tion. Applicant is included in the term
639.33 Management of leased assets. ‘‘recipient’’.
AUTHORITY: 49 U.S.C. 5302; 49 CFR 1.51. Capital asset means facilities or
SOURCE: 56 FR 51794, Oct. 15, 1991, unless equipment with a useful life of at least
otherwise noted. one year, which are eligible for capital
assistance.
Subpart A—General Capital assistance means Federal fi-
nancial assistance for capital projects
§ 639.1 General overview of this part. under section 9 of the FT Act.
This part contains the requirements Capital lease means any transaction
to qualify for capital assistance when whereby the recipient acquires the
leasing facilities or equipment under right to use a capital asset without ob-
the Federal transit laws. This part is taining full ownership regardless of the
set out in four subparts, with subpart A tax status of the transaction.
containing general information on Equipment means non-expendable per-
scope and definitions. Subpart B con- sonal property.
tains the principal requirements of this Facilities means real property, includ-
part, including eligibility require- ing land, improvements and fixtures.
ments, the self-certification system Interest rate means the most advan-
used, and identification of the various tageous interest rate actually avail-
forms of leases and grants that are eli- able to the recipient in the market.
gible under the program. Subpart B Present value means the value at the
also contains a section on other Fed- time of calculation of a future pay-
eral requirements that may apply. Sub- ment, or series of future payments dis-
part C includes the actual calculations counted by the time value of money as
that each recipient should undertake represented by an interest rate or simi-
before certifying that a lease is cost-ef- lar cost of funds.
fective. Finally, subpart D contains re- Recipient means an entity that re-
quirements on early lease termination ceives Federal financial assistance
and project management in general. from FTA, including an entity that re-
[63 FR 68366, Dec. 10, 1998] ceives Federal financial assistance
from FTA through a State or other
§ 639.3 Purpose of this part. public body. In this part, a recipient in-
This rule implements section 3003 of cludes an applicant for Federal finan-
the Transportation Equity Act for the cial assistance.
21st Century (Pub. L. 105–178). Section FT Act means the Federal Mass Tran-
3003 amended section 5302 of Chapter 53 sit Act of 1964, as amended, 49 U.S.C.
of Title 49 of the United States Code to 1601 et seq.
allow a recipient to use capital funds FTA means the Federal Transit Ad-
to finance the leasing of facilities and ministration.
53
§ 639.11 49 CFR Ch. VI (10–1–07 Edition)
Subpart B—Requirements November 14, 1991 may be eligible for

capital assistance for costs incurred
§ 639.11 Lease qualification require- after approval of such a lease by FTA
ments. under this part, if
(a) A lease may qualify for capital as- (1) The lease is otherwise eligible
sistance if it meets the following cri- under this part;
teria: (2) The recipient can demonstrate
(1) The capital asset to be acquired that the lease, when entered into, was
by lease is otherwise eligible for cap- more cost effective than purchase or
ital assistance; construction; and
(2) There is or will be no existing (3) The procurement of the asset by
Federal interest in the capital asset as lease was in accordance with Federal
of the date the lease will take effect requirements that applied at the time
unless as determined pursuant to the procurement tool place.
§ 639.13(b); and
(3) Lease of the capital asset is more [56 FR 51794, Oct. 15, 1991, as amended at 63
cost-effective than purchase or con- FR 68367, Dec. 10, 1998]
struction of the asset, as determined
under subpart C of this part. § 639.15 Eligible forms of grant.
(b) Once a lease has been qualified for A recipient may choose to receive
capital assistance, it need not be re- capital assistance for a capital lease
qualified absent an affirmative act or approved under this part—
omission by the recipient that vitiates (a) In a single grant under which
the cost-effectiveness determination. lease payments may be drawn down pe-
§ 639.13 Eligible types of leases. riodically for the life of the lease; or
(b) In increments that are obligated
(a) General. Any leasing arrangement, by FTA periodically (usually in annual
the terms of which provide for the re- section 9 grants). In this case, a recipi-
cipient’s use of a capital asset, poten- ent—
tially is eligible as a capital project
(1) Must certify to FTA that it has
under Chapter 53 of Title 49 of the
the financial capacity to meet its fu-
United States Code, regardless of the
ture obligations under the lease in the
classification of the leasing arrange-
event Federal funds are not available
ment for tax purposes.
for capital assistance in subsequent
(b) Special circumstances. A recipient
years; and
may request FTA to determine the eli-
gibility of a certain financial arrange- (2) May incur costs under its lease be-
ment if the recipient believes it might fore FTA’s obligation of future incre-
not meet the requirements of this part. ments of funding for such a lease.
(c) Lump sum lease. A recipient that These costs are reimbursable in future
wishes to enter into a lease which re- grants, so long as the terms of the
quires the draw down of a single lump lease do not substantially change.
sum payment at the inception of the
lease (or payments in advance of the § 639.17 Eligible lease costs.
incurrence of costs) rather than peri- (a) All costs directly attributable to
odic payments during the life of the making a capital asset available to the
lease must notify FTA prior to execu- lessee are eligible for capital assist-
tion of the lease concerning how it will ance, including, but not limited to—
ensure satisfactory continuing control (1) Finance charges, including inter-
of the asset for the duration of the est;
lease. FTA has the right to disapprove (2) Ancillary costs such as delivery
any arrangements where it has not and installation charges; and
been demonstrated that the recipient (3) Maintenance costs.
will have control over the asset. FTA (b) Any asset leased under this part
may require the recipient to submit its must be eligible for capital assistance
cost-effectiveness comparison for re- under a traditional purchase or con-
view. struction grant.
(d) Pre-existing lease. A lease entered
into before grant approval, or before [61 FR 25090, May 17, 1996]
54
§ 639.19 Other Federal requirements. plicant in its proposal to obtain the

(a) A recipient of capital assistance capital asset.
for a capital lease is subject to the (b) The estimated cost to purchase or
same statutory and administrative reconstruct must be—
quirements as a recipient who pur- (1) Reasonable;
chases or constructs a capital asset. (2) Based on realistic current market
(b) A lessor of a capital lease is sub- conditions; and
ject to the same statutory and admin- (3) Based on the expected useful life
istrative requirements as a direct sell- of the asset in mass transportation
er of the same capital asset would be service, as indicated in paragraph (c) of
when the lessor— this section.
(1) Purchases or constructs a capital (c) For purposes of this part, the ex-
asset in contemplation of leasing it to pected useful life of a revenue vehicle
a recipient; or is the useful life which is established
(2) Modifies an existing capital asset by FTA for recipients of Federal assist-
in contemplation of leasing it to a re- ance under FTA’s Circulars for section
cipient. 9 recipients. For assets other than rev-
enue vehicles, the applicant is respon-
Subpart C—Cost-Effectiveness sible for establishing a reasonable ex-
pected useful life. If the recipient does
§ 639.21 Determination of cost-effec-
tiveness. not intend to use the capital asset it is
proposing to obtain by lease in mass
(a) To qualify a lease for capital as- transportation service for its entire ex-
sistance, a recipient must— pected useful life, when calculating the
(1) Make a written comparison of the
purchase cost, the recipient must cal-
cost of leasing the asset with the cost
culate the fair market value of the
of purchasing or constructing it; and
asset as of the date the lease will ter-
(2) Certify to FTA before entering
into the lease or before receiving a cap- minate pursuant to Guidelines found in
ital grant for the asset, whichever is section 108(b) of part II Standard
later, that obtaining the asset by lease Terms and Conditions for valuation of
is more cost-effective than purchase or property withdrawn from transit use
construction of such asset. before the end of its useful life and sub-
(b) For purposes of this part, obtain- tract that amount from the purchase
ing the asset by lease is more cost-ef- price. The resulting amount is the pur-
fective than purchase or construction chase price for purposes of this rule.
when the lease cost calculated under
§ 639.25 of this part is less than the pur- § 639.25 Calculation of lease cost.
chase cost calculated under § 639.23 of (a) For purposes of this part, the
this part. lease cost of a capital asset is—
(c) If a recipient is unable to perform (1) The cost to lease the asset for the
the prescribed cost-effectiveness com- same use and same time period speci-
parison as described in this subpart, it fied in the recipient’s proposal to ob-
may ask FTA to approve an alternate tain the asset by purchase or construc-
form of cost-effectiveness evaluation. tion; plus
§ 639.23 Calculation of purchase or (2) Ancillary costs such as delivery
construction cost. and installation; plus
(a) For purposes of this subpart, the (3) The net present value of the esti-
purchase or construction cost of a cap- mated future cost to provide any other
ital asset is— service or benefit requested by the ap-
(1) The estimated cost to purchase or plicant in its proposal to obtain the
construct the asset; plus capital asset.
(2) Ancillary costs such as delivery (b) The estimated lease costs must be
and installation; plus reasonable, based on realistic market
(3) The net present value of the esti- conditions applicable to the recipient
mated future cost to provide any other and must be expressed in present value
service or benefit requested by the ap- terms.
55
§ 639.27 49 CFR Ch. VI (10–1–07 Edition)
§ 639.27 Minimum criteria. § 639.33 Management of leased assets.

In making the comparison between Each recipient must maintain an in-
leasing and purchasing or constructing ventory of capital assets acquired by
an asset, recipients should ascribe a re- standard FTA project management
alistic dollar value to any non-finan- guidelines.
cial factors that are considered by
using performance-based specifications PART 640—CREDIT ASSISTANCE
in the comparison. In addition to fac- FOR SURFACE TRANSPORTATION
tors unique to each recipient, the fol- PROJECTS
lowing factors are to be used where
possible and appropriate:
(a) Operation costs; AUTHORITY: Secs. 1501 et seq., Pub. L. 105–
(b) Reliability of service; 178, 112 Stat. 107, 241, as amended; 23 U.S.C.
(c) Maintenance costs; 181–189 and 315; 49 CFR 1.51.
(d) Difference in warranties;
§ 640.1 Cross-reference to credit assist-
(e) Passenger comfort; ance.
(f) Insurance costs;
(g) Costs/savings related to timing of The regulations in 49 CFR part 80
acquisition of asset. shall be followed in complying with the
(h) Value of asset at expiration of the requirements of this part. Title 49,
lease. CFR, part 80 implements the Transpor-
tation Infrastructure Finance and In-
Subpart D—Lease Management novation Act of 1998, secs. 1501 et seq.,
Pub. L. 105–178, 112 Stat. 107, 241.
§ 639.31 Early lease termination or [64 FR 29753, June 2, 1999]
modification.
(a) Except as provided in paragraph PART 655—PREVENTION OF ALCO-
(c) of this section, if a capital lease HOL MISUSE AND PROHIBITED
under this part is terminated or its
terms substantially modified before
DRUG USE IN TRANSIT OPER-
the end of the period used in the cost- ATIONS
effectiveness evaluation, or if the re-
cipient by an affirmative act or omis- Subpart A—General
sion vitiates the cost-effectiveness de- Sec.
termination of the lease, future lease 655.1 Purpose.
costs will no longer qualify as eligible 655.2 Overview.
capital expenses. In addition, the re- 655.3 Applicability.
cipient must reimburse the project— 655.4 Definitions.
655.5 Stand-down waivers for drug testing.
(1) Any Federal funds paid for the 655.6 Preemption of state and local laws.
portion of the lease term eliminated by 655.7 Starting date for testing programs.
early termination; and
(2) The Federal share of the excess, if Subpart B—Program Requirements
any, of the present value of lease costs,
which exceeds the purchase costs as 655.11 Requirement to establish an anti-
drug use and alcohol misuse program.
calculated under subpart C of this part 655.12 Required elements of an anti-drug use
for the period of the lease up to the and alcohol misuse program.
point of termination. 655.13 [Reserved]
(b) Penalties resulting from early 655.14 Education and training programs.
termination of a capital lease under 655.15 Policy statement contents.
this part are not eligible for Federal fi- 655.16 Requirement to disseminate policy.
nancial assistance. 655.17 Notice requirement.
655.18–655.20 [Reserved]
(c) Paragraph (a) of this section does
not apply if a lessor defaults on or oth- Subpart C—Prohibited Drug Use
erwise does not meet its obligations
under the capital lease and the recipi- 655.21 Drug testing.
ent takes appropriate action to ensure 655.22–655.30 [Reserved]
that the procurement continues to be
Subpart D—Prohibited Alcohol Use
cost-effective. FTA shall be notified of
any such event. 655.31 Alcohol testing.
56
655.32 On duty use. Subpart A—General
655.33 Pre-duty use.
655.34 Use following an accident. § 655.1 Purpose.
655.35 Other alcohol-related conduct.
655.36–655.40 [Reserved] The purpose of this part is to estab-
lish programs to be implemented by
Subpart E—Types of Testing employers that receive financial assist-
ance from the Federal Transit Admin-
655.41 Pre-employment drug testing. istration (FTA) and by contractors of
655.42 Pre-employment alcohol testing. those employers, that are designed to
655.43 Reasonable suspicion testing. help prevent accidents, injuries, and fa-
655.44 Post-accident testing.
talities resulting from the misuse of al-
655.45 Random testing.
cohol and use of prohibited drugs by
655.46 Return to duty following refusal to
employees who perform safety-sen-
submit to a test, verified positive drug
test result and/or breath alcohol test re- sitive functions.
sult of 0.04 or greater.
655.47 Follow-up testing after returning to
§ 655.2 Overview.
duty. (a) This part includes nine subparts.
655.48 Retesting of covered employees with Subpart A of this part covers the gen-
an alcohol concentration of 0.02 or great- eral requirements of FTA’s drug and
er but less than 0.04. alcohol testing programs. Subpart B of
655.49 Refusal to submit to a drug or alcohol this part specifies the basic require-
test. ments of each employer’s alcohol mis-
655.50 [Reserved]
use and prohibited drug use program,
including the elements required to be
Subpart F—Drug and Alcohol Testing
Procedures in each employer’s testing program.
Subpart C of this part describes prohib-
655.51 Compliance with testing procedures ited drug use. Subpart D of this part
requirements. describes prohibited alcohol use. Sub-
655.52 Substance abuse professional (SAP). part E of this part describes the types
655.53 Supervisor acting as collection site of alcohol and drug tests to be con-
personnel. ducted. Subpart F of this part address-
655.54–655.60 [Reserved] es the testing procedural requirements
mandated by the Omnibus Transpor-
Subpart G—Consequences tation Employee Testing Act of 1991,
655.61 Action when an employee has a and as required in 49 CFR Part 40. Sub-
verified positive drug test result or has a part G of this part lists the con-
confirmed alcohol test result of 0.04 or sequences for covered employees who
greater, or refuses to submit to a test. engage in alcohol misuse or prohibited
655.62 Referral, evaluation, and treatment. drug use. Subpart H of this part con-
655.63–655.70 [Reserved] tains administrative matters, such as
reports and recordkeeping require-
Subpart H—Administrative Requirements ments. Subpart I of this part specifies
how a recipient certifies compliance
655.71 Retention of records.
655.72 Reporting of results in a management
with the rule.
information system. (b) This part must be read in con-
655.73 Access to facilities and records. junction with 49 CFR Part 40, Proce-
655.74–655.80 [Reserved] dures for Transportation Workplace
Drug and Alcohol Testing Programs.
Subpart I—Certifying Compliance
655.81 Grantee oversight responsibility.
655.82 Compliance as a condition of finan- (a) Except as specifically excluded in
cial assistance. paragraphs (b), and (c) of this section,
655.83 Requirement to certify compliance. this part applies to:
(1) Each recipient and subrecipient
AUTHORITY: 49 U.S.C. 5331; 49 CFR 1.51.
receiving Federal assistance under:
SOURCE: 66 FR 42002, Aug. 9, 2001, unless (i) 49 U.S.C. 5307, 5309, or 5311; or
otherwise noted. (ii) 23 U.S.C. 103(e)(4); and
57
§ 655.4 49 CFR Ch. VI (10–1–07 Edition)
(2) Any contractor of a recipient or Anti-drug program means a program

subrecipient of Federal assistance to detect and deter the use of prohib-
under: ited drugs as required by this part.
(i) 49 U.S.C. 5307, 5309, or 5311; or Certification means a recipient’s writ-
(ii) 23 U.S.C. 103(e)(4). ten statement, authorized by the orga-
(b) A recipient operating a railroad nization’s governing board or other au-
regulated by the Federal Railroad Ad- thorizing official that the recipient has
ministration (FRA) shall follow 49 CFR complied with the provisions of this
Part 219 and § 655.83 for its railroad op- part. (See § 655.82 and § 655.83 for certifi-
erations, and shall follow this part for cation requirements.)
its non-railroad operations, if any. Contractor means a person or organi-
(c) A recipient operating a ferryboat zation that provides a safety-sensitive
service for a recipient, subrecipient,
regulated by the United States Coast
employer, or operator consistent with
Guard (USCG) that satisfactorily com-
a specific understanding or arrange-
plies with the testing requirements of
ment. The understanding can be a writ-
46 CFR Parts 4 and 16, and 33 CFR Part
ten contract or an informal arrange-
95 shall be in concurrent compliance
ment that reflects an ongoing relation-
with the testing requirements of this
ship between the parties.
part. This exception shall not apply to
Covered employee means a person, in-
the provisions of section 655.45, or sub-
cluding an applicant or transferee, who
parts G, or H of this part.
performs or will perform a safety-sen-
[66 FR 42002, Aug. 9, 2001, as amended at 71 sitive function for an entity subject to
FR 69198, Nov. 30, 2006] this part. A volunteer is a covered em-
ployee if:
§ 655.4 Definitions. (1) The volunteer is required to hold
For this part, the terms listed in this a commercial driver’s license to oper-
section have the following definitions. ate the vehicle; or
The definitions of additional terms (2) The volunteer performs a safety-
used in this part but not listed in this sensitive function for an entity subject
section can be found in 49 CFR Part 40. to this part and receives remuneration
Accident means an occurrence associ- in excess of his or her actual expenses
ated with the operation of a vehicle, if incurred while engaged in the volun-
as a result: teer activity.
Disabling damage means damage that
(1) An individual dies; or
precludes departure of a motor vehicle
(2) An individual suffers bodily injury from the scene of the accident in its
and immediately receives medical usual manner in daylight after simple
treatment away from the scene of the repairs.
accident; or (1) Inclusion. Damage to a motor ve-
(3) With respect to an occurrence in hicle, where the vehicle could have
which the mass transit vehicle in- been driven, but would have been fur-
volved is a bus, electric bus, van, or ther damaged if so driven.
automobile, one or more vehicles (in- (2) Exclusions. (i) Damage that can be
cluding non-FTA funded vehicles) in- remedied temporarily at the scene of
curs disabling damage as the result of the accident without special tools or
the occurrence and such vehicle or ve- parts.
hicles are transported away from the (ii) Tire disablement without other
scene by a tow truck or other vehicle; damage even if no spare tire is avail-
or able.
(4) With respect to an occurrence in (iii) Headlamp or tail light damage.
which the mass transit vehicle in- (iv) Damage to turn signals, horn, or
volved is a rail car, trolley car, trolley windshield wipers, which makes the ve-
bus, or vessel, the mass transit vehicle hicle inoperable.
is removed from operation. DOT or The Department means the
Administrator means the Adminis- United States Department of Transpor-
trator of the Federal Transit Adminis- tation.
tration or the Administrator’s des- DOT agency means an agency (or
ignee. ‘‘operating administration’’) of the
58
United States Department of Transpor- Safety-sensitive function means any of

tation administering regulations re- the following duties, when performed
quiring drug and alcohol testing. See 14 by employees of recipients, subrecipi-
CFR part 121, appendices I and J; 33 ents, operators, or contractors:
CFR part 95; 46 CFR parts 4, 5, and 16; (1) Operating a revenue service vehi-
and 49 CFR parts 199, 219, 382, and 655. cle, including when not in revenue
Employer means a recipient or other service;
entity that provides mass transpor- (2) Operating a nonrevenue service
tation service or which performs a safe- vehicle, when required to be operated
ty-sensitive function for such recipient by a holder of a Commercial Driver’s
or other entity. This term includes License;
subrecipients, operators, and contrac- (3) Controlling dispatch or movement
tors. of a revenue service vehicle;
FTA means the Federal Transit Ad- (4) Maintaining (including repairs,
ministration, an agency of the U.S. De- overhaul and rebuilding) a revenue
partment of Transportation. service vehicle or equipment used in
Performing (a safety-sensitive function) revenue service. This section does not
means a covered employee is consid- apply to the following: an employer
ered to be performing a safety-sen- who receives funding under 49 U.S.C.
sitive function and includes any period 5307 or 5309, is in an area less than
in which he or she is actually per- 200,000 in population, and contracts out
forming, ready to perform, or imme- such services; or an employer who re-
diately available to perform such func- ceives funding under 49 U.S.C. 5311 and
tions. contracts out such services;
Positive rate for random drug testing (5) Carrying a firearm for security
means the number of verified positive purposes.
results for random drug tests con- Vehicle means a bus, electric bus,
ducted under this part plus the number van, automobile, rail car, trolley car,
of refusals of random drug tests re- trolley bus, or vessel. A mass transit
quired by this part, divided by the vehicle is a vehicle used for mass
total number of random drug tests re- transportation or for ancillary serv-
sults (i.e., positive, negative, and refus- ices.
als) under this part. Violation rate for random alcohol test-
Railroad means: ing means the number of 0.04 and above
(1) All forms of non-highway ground random alcohol confirmation test re-
transportation that run on rails or sults conducted under this part plus
electromagnetic guideways, including: the number of refusals of random alco-
(i) Commuter or other short-haul rail hol tests required by this part, divided
passenger service in a metropolitan or by the total number of alcohol random
suburban area, as well as any com- screening tests (including refusals)
muter rail service that was operated by conducted under this part.
the Consolidated Rail Corporation as of [66 FR 42002, Aug. 9, 2001, as amended at 68
January 1, 1979; and FR 75462, Dec. 31, 2003]
(ii) High speed ground transportation
systems that connect metropolitan § 655.5 Stand-down waivers for drug
areas, without regard to whether they testing.
use new technologies not associated (a) An employer subject to this part
with traditional railroads. may petition the FTA for a waiver al-
(2) Such term does not include rapid lowing the employer to stand down, per
transit operations within an urban 49 CFR Part 40, an employee following
area that are not connected to the gen- a report of a laboratory confirmed posi-
eral railroad system of transportation. tive drug test or refusal, pending the
Recipient means an entity receiving outcome of the verification process.
Federal financial assistance under 49 (b) Each petition for a waiver must
U.S.C. 5307, 5309, or 5311; or under 23 be in writing and include facts and jus-
U.S.C. 103(e)(4). tification to support the waiver. Each
Refuse to submit means any cir- petition must satisfy the requirements
cumstance outlined in 49 CFR 40.191 for obtaining a waiver, as provided in
and 40.261. 49 CFR 40.21.
59
§ 655.6 49 CFR Ch. VI (10–1–07 Edition)
(c) Each petition for a waiver must misuse. This policy statement shall in-
be submitted to the Office of Safety clude all of the elements specified in
and Security, Federal Transit Adminis- § 655.15. Each employer shall dissemi-
tration, U.S. Department of Transpor- nate the policy consistent with the
tation, 400 Seventh Street, SW. Wash- provisions of § 655.16.
ington, DC 20590. (b) An education and training pro-
(d) The Administrator may grant a gram which meets the requirements of
waiver subject to 49 CFR 40.21(d). § 655.14.
(c) A testing program, as described in
§ 655.6 Preemption of state and local Subparts C and D of this part, which
laws. meets the requirements of this part
(a) Except as provided in paragraph and 49 CFR Part 40.
(b) of this section, this part preempts (d) Procedures for referring a covered
any state or local law, rule, regulation, employee who has a verified positive
or order to the extent that: drug test result or an alcohol con-
(1) Compliance with both the state or centration of 0.04 or greater to a Sub-
local requirement and any requirement stance Abuse Professional, consistent
in this part is not possible; or with 49 CFR Part 40.
(2) Compliance with the state or local
requirement is an obstacle to the ac- § 655.13 [Reserved]
complishment and execution of any re-
quirement in this part. § 655.14 Education and training pro-
grams.
(b) This part shall not be construed
to preempt provisions of state criminal Each employer shall establish an em-
laws that impose sanctions for reckless ployee education and training program
conduct attributed to prohibited drug for all covered employees, including:
use or alcohol misuse leading to actual (a) Education. The education compo-
loss of life, injury, or damage to prop- nent shall include display and distribu-
erty, whether the provisions apply spe- tion to every covered employee of: in-
cifically to transportation employees formational material and a community
or employers or to the general public. service hot-line telephone number for
employee assistance, if available.
§ 655.7 Starting date for testing pro- (b) Training—(1) Covered employees.
grams. Covered employees must receive at
An employer must have an anti-drug least 60 minutes of training on the ef-
and alcohol misuse testing program in fects and consequences of prohibited
place by the date the employer begins drug use on personal health, safety,
operations. and the work environment, and on the
signs and symptoms that may indicate
Subpart B—Program Requirements prohibited drug use.
(2) Supervisors. Supervisors and/or
§ 655.11 Requirement to establish an other company officers authorized by
anti-drug use and alcohol misuse the employer to make reasonable sus-
program. picion determinations shall receive at
Each employer shall establish an least 60 minutes of training on the
anti-drug use and alcohol misuse pro- physical, behavioral, and performance
gram consistent with the requirements indicators of probable drug use and at
of this part. least 60 minutes of training on the
physical, behavioral, speech, and per-
§ 655.12 Required elements of an anti- formance indicators of probable alco-
drug use and alcohol misuse pro- hol misuse.
gram.
An anti-drug use and alcohol misuse § 655.15 Policy statement contents.
program shall include the following: The local governing board of the em-
(a) A statement describing the employer or operator shall adopt an anti-
ployer’s policy on prohibited drug use drug and alcohol misuse policy state-
and alcohol misuse in the workplace, ment. The statement must be made
including the consequences associated available to each covered employee,
with prohibited drug use and alcohol and shall include the following:
60
(a) The identity of the person, office, § 655.16 Requirement to disseminate

branch and/or position designated by policy.
the employer to answer employee ques- Each employer shall provide written
tions about the employer’s anti-drug notice to every covered employee and
use and alcohol misuse programs.
to representatives of employee organi-
(b) The categories of employees who zations of the employer’s anti-drug and
are subject to the provisions of this alcohol misuse policies and procedures.
part.
(c) Specific information concerning § 655.17 Notice requirement.
the behavior and conduct prohibited by
this part. Before performing a drug or alcohol
test under this part, each employer
(d) The specific circumstances under
shall notify a covered employee that
which a covered employee will be test-
the test is required by this part. No
ed for prohibited drugs or alcohol mis-
employer shall falsely represent that a
use under this part.
test is administered under this part.
(e) The procedures that will be used
to test for the presence of illegal drugs §§ 655.18–655.20 [Reserved]
or alcohol misuse, protect the em-
ployee and the integrity of the drug
and alcohol testing process, safeguard Subpart C—Prohibited Drug Use
the validity of the test results, and en- § 655.21 Drug testing.
sure the test results are attributed to
the correct covered employee. (a) An employer shall establish a pro-
(f) The requirement that a covered gram that provides testing for prohib-
employee submit to drug and alcohol ited drugs and drug metabolites in the
testing administered in accordance following circumstances: pre-employ-
with this part. ment, post-accident, reasonable sus-
(g) A description of the kind of be- picion, random, and return to duty/fol-
havior that constitutes a refusal to low-up.
take a drug or alcohol test, and a (b) When administering a drug test,
statement that such a refusal con- an employer shall ensure that the fol-
stitutes a violation of the employer’s lowing drugs are tested for:
policy. (1) Marijuana;
(h) The consequences for a covered (2) Cocaine;
employee who has a verified positive (3) Opiates;
drug or a confirmed alcohol test result (4) Amphetamines; and
with an alcohol concentration of 0.04 or (5) Phencyclidine.
greater, or who refuses to submit to a (c) Consumption of these products is
test under this part, including the prohibited at all times.
mandatory requirements that the cov-
ered employee be removed immediately §§ 655.22–655.30 [Reserved]
from his or her safety-sensitive func-
tion and be evaluated by a substance
abuse professional, as required by 49 Subpart D—Prohibited Alcohol Use
CFR Part 40. § 655.31 Alcohol testing.
(i) The consequences, as set forth in
§ 655.35 of subpart D, for a covered em- (a) An employer shall establish a pro-
ployee who is found to have an alcohol gram that provides for testing for alco-
concentration of 0.02 or greater but less hol in the following circumstances:
than 0.04. post-accident, reasonable suspicion,
(j) The employer shall inform each random, and return to duty/follow-up.
covered employee if it implements ele- An employer may also conduct pre-em-
ments of an anti-drug use or alcohol ployment alcohol testing.
misuse program that are not required (b) Each employer shall prohibit a
by this part. An employer may not im- covered employee, while having an al-
pose requirements that are incon- cohol concentration of 0.04 or greater,
sistent with, contrary to, or frustrate from performing or continuing to per-
the provisions of this part. form a safety-sensitive function.
61
§ 655.32 49 CFR Ch. VI (10–1–07 Edition)
§ 655.32 On duty use. (1) The employee’s alcohol concentra-

tion measures less than 0.02; or
Each employer shall prohibit a cov-
(2) The start of the employee’s next
ered employee from using alcohol while
regularly scheduled duty period, but
performing safety-sensitive functions. not less than eight hours following ad-
No employer having actual knowledge ministration of the test.
that a covered employee is using alco- (b) Except as provided in paragraph
hol while performing safety-sensitive (a) of this section, no employer shall
functions shall permit the employee to take any action under this part against
perform or continue to perform safety- an employee based solely on test re-
sensitive functions. sults showing an alcohol concentration
less than 0.04. This does not prohibit an
§ 655.33 Pre-duty use.
employer with authority independent
(a) General. Each employer shall proof this part from taking any action
hibit a covered employee from using al- otherwise consistent with law.
cohol within 4 hours prior to per-
forming safety-sensitive functions. No §§ 655.36–655.40 [Reserved]
employer having actual knowledge
that a covered employee has used alco- Subpart E—Types of Testing
hol within four hours of performing a
safety-sensitive function shall permit § 655.41 Pre-employment drug testing.
the employee to perform or continue to (a)(1) Before allowing a covered em-
perform safety-sensitive functions. ployee or applicant to perform a safe-
(b) On-call employees. An employer ty-sensitive function for the first time,
shall prohibit the consumption of alco- the employer must ensure that the em-
hol for the specified on-call hours of ployee takes a pre-employment drug
each covered employee who is on-call. test administered under this part with
The procedure shall include: a verified negative result. An employer
(1) The opportunity for the covered may not allow a covered employee, in-
employee to acknowledge the use of al- cluding an applicant, to perform a safe-
cohol at the time he or she is called to ty-sensitive function unless the em-
report to duty and the inability to per- ployee takes a drug test administered
form his or her safety-sensitive func- under this part with a verified negative
tion. result.
(2) The requirement that the covered (2) When a covered employee or appli-
employee take an alcohol test, if the cant has previously failed or refused a
covered employee has acknowledged pre-employment drug test adminis-
the use of alcohol, but claims ability to tered under this part, the employee
perform his or her safety-sensitive must provide the employer proof of
function. having successfully completed a refer-
ral, evaluation and treatment plan as
§ 655.34 Use following an accident. described in § 655.62.
(b) An employer may not transfer an
Each employer shall prohibit alcohol employee from a nonsafety-sensitive
use by any covered employee required function to a safety-sensitive function
to take a post-accident alcohol test until the employee takes a pre-employ-
under § 655.44 for eight hours following ment drug test administered under this
the accident or until he or she under- part with a verified negative result.
goes a post-accident alcohol test, (c) If a pre-employment drug test is
whichever occurs first. canceled, the employer shall require
the covered employee or applicant to
§ 655.35 Other alcohol-related conduct. take another pre-employment drug test
(a) No employer shall permit a cov- administered under this part with a
ered employee tested under the provi- verified negative result.
sions of subpart E of this part who is (d) When a covered employee or ap-
found to have an alcohol concentration plicant has not performed a safety-sen-
of 0.02 or greater but less than 0.04 to sitive function for 90 consecutive cal-
perform or continue to perform safety- endar days regardless of the reason,
sensitive functions, until: and the employee has not been in the
62
employer’s random selection pool dur- signs and symptoms of drug use and al-
ing that time, the employer shall en- cohol misuse must make the required
sure that the employee takes a pre-em- observations.
ployment drug test with a verified neg- (c) Alcohol testing is authorized
ative result. under this section only if the observa-
tions required by paragraph (b) of this
§ 655.42 Pre-employment alcohol test- section are made during, just pre-
ing. ceding, or just after the period of the
An employer may, but is not required workday that the covered employee is
to, conduct pre-employment alcohol required to be in compliance with this
testing under this part. If an employer part. An employer may direct a cov-
chooses to conduct pre-employment al- ered employee to undergo reasonable
cohol testing, the employer must com- suspicion testing for alcohol only while
ply with the following requirements: the employee is performing safety-sen-
(a) The employer must conduct a pre- sitive functions; just before the em-
employment alcohol test before the ployee is to perform safety-sensitive
first performance of safety-sensitive functions; or just after the employee
functions by every covered employee has ceased performing such functions.
(whether a new employee or someone (d) If an alcohol test required by this
who has transferred to a position in- section is not administered within two
volving the performance of safety-sen- hours following the determination
sitive functions). under paragraph (b) of this section, the
(b) The employer must treat all cov- employer shall prepare and maintain
ered employees performing safety-sen- on file a record stating the reasons the
sitive functions the same for the pur- alcohol test was not promptly adminis-
pose of pre-employment alcohol testing tered. If an alcohol test required by
(i.e., you must not test some covered this section is not administered within
employees and not others). eight hours following the determina-
(c) The employer must conduct the tion under paragraph (b) of this sec-
pre-employment tests after making a tion, the employer shall cease attempts
contingent offer of employment or to administer an alcohol test and shall
transfer, subject to the employee pass- state in the record the reasons for not
ing the pre-employment alcohol test. administering the test.
(d) The employer must conduct all
pre-employment alcohol tests using the § 655.44 Post-accident testing.
alcohol testing procedures set forth in (a) Accidents. (1) Fatal accidents. (i)
49 CFR Part 40. As soon as practicable following an ac-
(e) The employer must not allow a cident involving the loss of human life,
covered employee to begin performing an employer shall conduct drug and al-
safety-sensitive functions unless the cohol tests on each surviving covered
result of the employee’s test indicates employee operating the mass transit
an alcohol concentration of less than vehicle at the time of the accident.
0.02. Post-accident drug and alcohol testing
of the operator is not required under
§ 655.43 Reasonable suspicion testing. this section if the covered employee is
(a) An employer shall conduct a drug tested under the fatal accident testing
and/or alcohol test when the employer requirements of the Federal Motor Car-
has reasonable suspicion to believe rier Safety Administration rule 49 CFR
that the covered employee has used a 389.303(a)(1) or (b)(1).
prohibited drug and/or engaged in alco- (ii) The employer shall also drug and
hol misuse. alcohol test any other covered em-
(b) An employer’s determination that ployee whose performance could have
reasonable suspicion exists shall be contributed to the accident, as deter-
based on specific, contemporaneous, mined by the employer using the best
articulable observations concerning information available at the time of
the appearance, behavior, speech, or the decision.
body odors of the covered employee. A (2) Nonfatal accidents. (i) As soon as
supervisor(s), or other company offi- practicable following an accident not
cial(s) who is trained in detecting the involving the loss of human life in
63
§ 655.45 49 CFR Ch. VI (10–1–07 Edition)
which a mass transit vehicle is in- essary medical attention for the in-
volved, the employer shall drug and al- jured following an accident or to pro-
cohol test each covered employee oper- hibit a covered employee from leaving
ating the mass transit vehicle at the the scene of an accident for the period
time of the accident unless the em- necessary to obtain assistance in re-
ployer determines, using the best infor- sponding to the accident or to obtain
mation available at the time of the de- necessary emergency medical care.
cision, that the covered employee’s (f) The results of a blood, urine, or
performance can be completely dis- breath test for the use of prohibited
counted as a contributing factor to the drugs or alcohol misuse, conducted by
accident. The employer shall also drug Federal, State, or local officials having
and alcohol test any other covered em- independent authority for the test,
ployee whose performance could have shall be considered to meet the re-
contributed to the accident, as deter- quirements of this section provided
mined by the employer using the best such test conforms to the applicable
information available at the time of Federal, State, or local testing require-
the decision. ments, and that the test results are ob-
(ii) If an alcohol test required by this tained by the employer. Such test re-
section is not administered within two sults may be used only when the em-
hours following the accident, the employer is unable to perform a post-acci-
ployer shall prepare and maintain on dent test within the required period
file a record stating the reasons the al- noted in paragraphs (a) and (b) of this
cohol test was not promptly adminis- section.
tered. If an alcohol test required by
this section is not administered within § 655.45 Random testing.
eight hours following the accident, the
employer shall cease attempts to ad- (a) Except as provided in paragraphs
minister an alcohol test and maintain (b) through (d) of this section, the min-
the record. Records shall be submitted imum annual percentage rate for ran-
to FTA upon request of the Adminis- dom drug testing shall be 50 percent of
trator. covered employees; the random alcohol
(b) An employer shall ensure that a testing rate shall be 10 percent. As pro-
covered employee required to be drug vided in paragraph (b) of this section,
tested under this section is tested as this rate is subject to annual review by
soon as practicable but within 32 hours the Administrator.
of the accident. (b) The Administrator’s decision to
(c) A covered employee who is sub- increase or decrease the minimum an-
ject to post-accident testing who fails nual percentage rate for random drug
to remain readily available for such and alcohol testing is based, respec-
testing, including notifying the em- tively, on the reported positive drug
ployer or the employer representative and alcohol violation rates for the en-
of his or her location if he or she leaves tire industry. All information used for
the scene of the accident prior to sub- this determination is drawn from the
mission to such test, may be deemed by drug and alcohol Management Informa-
the employer to have refused to submit tion System (MIS) reports required by
to testing. this part. In order to ensure reliability
(d) The decision not to administer a of the data, the Administrator shall
drug and/or alcohol test under this sec- consider the quality and completeness
tion shall be based on the employer’s of the reported data, may obtain addi-
determination, using the best available tional information or reports from em-
information at the time of the deter- ployers, and may make appropriate
mination that the employee’s perform- modifications in calculating the indus-
ance could not have contributed to the try’s verified positive results and viola-
accident. Such a decision must be doc- tion rates. Each year, the Adminis-
umented in detail, including the deci- trator will publish in the FEDERAL
sion-making process used to reach the REGISTER the minimum annual per-
decision not to test. centage rates for random drug and al-
(e) Nothing in this section shall be cohol testing of covered employees.
construed to require the delay of nec- The new minimum annual percentage
64
rate for random drug and alcohol test- (ii) When the minimum annual per-
ing will be applicable starting January centage rate for random alcohol test-
1 of the calendar year following publi- ing is 25 percent or less, and the data
cation. received under the reporting require-
(c) Rates for drug testing. (1) When ments of § 655.72 for that calendar year
the minimum annual percentage rate indicate that the violation rate is
for random drug testing is 50 percent, equal to or greater than 1.0 percent,
the Administrator may lower this rate the Administrator will increase the
to 25 percent of all covered employees minimum annual percentage rate for
if the Administrator determines that random alcohol testing to 50 percent of
the data received under the reporting all covered employees.
requirements of § 655.72 for the two pre- (e) The selection of employees for
ceding consecutive calendar years indi- random drug and alcohol testing shall
cate that the reported positive rate is be made by a scientifically valid meth-
less than 1.0 percent. od, such as a random number table or a
(2) When the minimum annual per- computer-based random number gener-
centage rate for random drug testing is ator that is matched with employees’
25 percent, and the data received under Social Security numbers, payroll iden-
the reporting requirements of § 655.72 tification numbers, or other com-
for the calendar year indicate that the parable identifying numbers. Under the
reported positive rate is equal to or selection process used, each covered
greater than 1.0 percent, the Adminis- employee shall have an equal chance of
trator will increase the minimum an- being tested each time selections are
nual percentage rate for random drug made.
or random alcohol testing to 50 percent (f) The employer shall randomly se-
of all covered employees. lect a sufficient number of covered em-
(d) Rates for alcohol testing. (1)(i) ployees for testing during each cal-
When the minimum annual percentage endar year to equal an annual rate not
rate for random alcohol testing is 25 less than the minimum annual percent-
percent or more, the Administrator age rates for random drug and alcohol
may lower this rate to 10 percent of all testing determined by the Adminis-
covered employees if the Adminis- trator. If the employer conducts ran-
trator determines that the data re- dom drug and alcohol testing through a
ceived under the reporting require- consortium, the number of employees
ments of § 655.72 for two consecutive to be tested may be calculated for each
calendar years indicate that the viola- individual employer or may be based
tion rate is less than 0.5 percent. on the total number of covered employ-
(ii) When the minimum annual per- ees covered by the consortium who are
centage rate for random alcohol test- subject to random drug and alcohol
ing is 50 percent, the Administrator testing at the same minimum annual
may lower this rate to 25 percent of all percentage rate under this part.
covered employees if the Adminis- (g) Each employer shall ensure that
trator determines that the data re- random drug and alcohol tests con-
ceived under the reporting require- ducted under this part are unan-
ments of § 655.72 for two consecutive nounced and unpredictable, and that
calendar years indicate that the viola- the dates for administering random
tion rate is less than 1.0 percent but tests are spread reasonably throughout
equal to or greater than 0.5 percent. the calendar year. Random testing
(2)(i) When the minimum annual per- must be conducted at all times of day
centage rate for random alcohol test- when safety-sensitive functions are
ing is 10 percent, and the data received performed.
under the reporting requirements of (h) Each employer shall require that
§ 655.72 for that calendar year indicate each covered employee who is notified
that the violation rate is equal to or of selection for random drug or random
greater than 0.5 percent, but less than alcohol testing proceed to the test site
1.0 percent, the Administrator will in- immediately. If the employee is per-
crease the minimum annual percentage forming a safety-sensitive function at
rate for random alcohol testing to 25 the time of the notification, the em-
percent of all covered employees. ployer shall instead ensure that the
65
§ 655.46 49 CFR Ch. VI (10–1–07 Edition)
employee ceases to perform the safety- § 655.48 Retesting of covered employ-

sensitive function and proceeds to the ees with an alcohol concentration
testing site immediately. of 0.02 or greater but less than 0.04.
(i) A covered employee shall only be If an employer chooses to permit a
randomly tested for alcohol misuse covered employee to perform a safety-
while the employee is performing safe- sensitive function within 8 hours of an
ty-sensitive functions; just before the alcohol test indicating an alcohol con-
employee is to perform safety-sensitive centration of 0.02 or greater but less
functions; or just after the employee than 0.04, the employer shall retest the
has ceased performing such functions. covered employee to ensure compliance
A covered employee may be randomly with the provisions of § 655.35. The cov-
tested for prohibited drug use anytime ered employee may not perform safety-
while on duty. sensitive functions unless the con-
(j) If a given covered employee is sub- firmation alcohol test result is less
ject to random drug and alcohol test- than 0.02.
ing under the testing rules of more
than one DOT agency for the same em- § 655.49 Refusal to submit to a drug or
ployer, the employee shall be subject alcohol test.
to random drug and alcohol testing at (a) Each employer shall require a
the percentage rate established for the covered employee to submit to a post-
calendar year by the DOT agency regu- accident drug and alcohol test required
lating more than 50 percent of the em- under § 655.44, a random drug and alco-
ployee’s function. hol test required under § 655.45, a rea-
(k) If an employer is required to con- sonable suspicion drug and alcohol test
duct random drug and alcohol testing required under § 655.43, or a follow-up
under the drug and alcohol testing drug and alcohol test required under
rules of more than one DOT agency, § 655.47. No employer shall permit an
the employer may— employee who refuses to submit to
(1) Establish separate pools for ran- such a test to perform or continue to
dom selection, with each pool con- perform safety-sensitive functions.
taining the covered employees who are (b) When an employee refuses to sub-
subject to testing at the same required mit to a drug or alcohol test, the em-
rate; or ployer shall follow the procedures out-
(2) Randomly select such employees lined in 49 CFR Part 40.
for testing at the highest percentage
rate established for the calendar year § 655.50 [Reserved]
by any DOT agency to which the em-
ployer is subject. Subpart F—Drug and Alcohol
Testing Procedures
§ 655.46 Return to duty following re-
fusal to submit to a test, verified § 655.51 Compliance with testing pro-
positive drug test result and/or cedures requirements.
breath alcohol test result of 0.04 or The drug and alcohol testing proce-
greater.
dures in 49 CFR Part 40 apply to em-
Where a covered employee refuses to ployers covered by this part, and must
submit to a test, has a verified positive be read together with this part, unless
drug test result, and/or has a confirmed expressly provided otherwise in this
alcohol test result of 0.04 or greater, part.
the employer, before returning the em-
ployee to duty to perform a safety-sen- § 655.52 Substance abuse professional
sitive function, shall follow the proce- (SAP).
dures outlined in 49 CFR Part 40. The SAP must perform the functions
in 49 CFR Part 40.
§ 655.47 Follow-up testing after return-
ing to duty. § 655.53 Supervisor acting as collection
An employer shall conduct follow-up site personnel.
testing of each employee who returns An employer shall not permit an em-
to duty, as specified in 49 CFR Part 40, ployee with direct or immediate super-
subpart O. visory responsibility or authority over
66
Federal Transit Admin., DOT § 655. 71
another employee to serve as the urine §§ 655.63–655.70 [Reserved]

collection person, breath alcohol tech-
nician, or saliva-testing technician for Subpart H—Administrative
a drug or alcohol test of the employee. Requirements
§§ 655.54–655.60 [Reserved] § 655. 71 Retention of records.
(a) General requirement. An employer
Subpart G—Consequences shall maintain records of its anti-drug
and alcohol misuse program as pro-
§ 655.61 Action when an employee has
vided in this section. The records shall
a verified positive drug test result
or has a confirmed alcohol test re- be maintained in a secure location with
sult of 0.04 or greater, or refuses to controlled access.
submit to a test. (b) Period of retention. In determining
compliance with the retention period
(a) (1) Immediately after receiving requirement, each record shall be
notice from a medical review officer maintained for the specified minimum
(MRO) or a consortium/third party ad- period of time as measured from the
ministrator (C/TPA) that a covered em- date of the creation of the record. Each
ployee has a verified positive drug test employer shall maintain the records in
result, the employer shall require that accordance with the following sched-
the covered employee cease performing ule:
a safety-sensitive function. (1) Five years. Records of covered em-
(2) Immediately after receiving no- ployee verified positive drug or alcohol
tice from a Breath Alcohol Technician test results, documentation of refusals
(BAT) that a covered employee has a to take required drug or alcohol tests,
confirmed alcohol test result of 0.04 or and covered employee referrals to the
greater, the employer shall require substance abuse professional, and cop-
that the covered employee cease per- ies of annual MIS reports submitted to
forming a safety-sensitive function. FTA.
(3) If an employee refuses to submit (2) Two years. Records related to the
to a drug or alcohol test required by collection process and employee train-
this part, the employer shall require ing.
that the covered employee cease per- (3) One year. Records of negative drug
forming a safety-sensitive function. or alcohol test results.
(b) Before allowing the covered em- (c) Types of records. The following
ployee to resume performing a safety- specific records must be maintained:
sensitive function, the employer shall (1) Records related to the collection
process:
ensure the employee meets the require-
(i) Collection logbooks, if used.
ments of 49 CFR Part 40 for returning
(ii) Documents relating to the ran-
to duty, including taking a return to
dom selection process.
duty drug and/or alcohol test.
(iii) Documents generated in connec-
§ 655.62 Referral, evaluation, and tion with decisions to administer rea-
treatment. sonable suspicion drug or alcohol tests.
(iv) Documents generated in connec-
If a covered employee has a verified tion with decisions on post-accident
positive drug test result, or has a con- drug and alcohol testing.
firmed alcohol test of 0.04 or greater, or (v) MRO documents verifying exist-
refuses to submit to a drug or alcohol ence of a medical explanation of the in-
test required by this part, the em- ability of a covered employee to pro-
ployer shall advise the employee of the vide an adequate urine or breathe sam-
resources available for evaluating and ple.
resolving problems associated with pro- (2) Records related to test results:
hibited drug use and alcohol misuse, (i) The employer’s copy of the cus-
including the names, addresses, and tody and control form.
telephone numbers of substance abuse (ii) Documents related to the refusal
professionals (SAPs) and counseling of any covered employee to submit to a
and treatment programs. test required by this part.
67
§ 655.72 49 CFR Ch. VI (10–1–07 Edition)
(iii) Documents presented by a cov- pendix H. You may also use the elec-
ered employee to dispute the result of tronic version of the MIS form pro-
a test administered under this part. vided by the DOT. The Administrator
(3) Records related to referral and re- may designate means (e.g., electronic
turn to duty and follow-up testing: program transmitted via the Internet),
Records concerning a covered employ- other than hard-copy, for MIS form
ee’s entry into and completion of the submission. For information on where
treatment program recommended by to submit MIS forms and for the elec-
the substance abuse professional. tronic version of the form, see: http://
(4) Records related to employee transit-safety.volpe.dot.gov/DAMIS.
training: (e) To calculate the total number of
(i) Training materials on drug use covered employees eligible for random
awareness and alcohol misuse, includ- testing throughout the year, as an em-
ing a copy of the employer’s policy on ployer, you must add the total number
prohibited drug use and alcohol misuse. of covered employees eligible for test-
(ii) Names of covered employees ating during each random testing period
tending training on prohibited drug use for the year and divide that total by
and alcohol misuse and the dates and the number of random testing periods.
times of such training. Covered employees, and only covered
(iii) Documentation of training pro- employees, are to be in an employer’s
vided to supervisors for the purpose of random testing pool, and all covered
qualifying the supervisors to make a employees must be in the random pool.
determination concerning the need for If you are an employer conducting ran-
drug and alcohol testing based on rea- dom testing more often than once per
sonable suspicion. month (e.g., you select daily, weekly,
(iv) Certification that any training bi-weekly), you do not need to compute
conducted under this part complies this total number of covered employees
with the requirements for such train- rate more than on a once per month
ing. basis. As an employer, you may use a
(5) Copies of annual MIS reports sub- service agent (e.g., C/TPA) to perform
mitted to FTA. random selections for you; and your
covered employees may be part of a
§ 655.72 Reporting of results in a man- larger random testing pool of covered
agement information system. employees. However, you must ensure
(a) Each recipient shall annually pre- that the service agent you use is test-
pare and maintain a summary of the ing at the appropriate percentage es-
results of its anti-drug and alcohol tablished for your industry and that
misuse testing programs performed only covered employees are in the ran-
under this part during the previous cal- dom testing pool.
endar year. (f) If you have a covered employee
(b) When requested by FTA, each re- who performs multi-DOT agency func-
cipient shall submit to FTA’s Office of tions (e.g., an employee drives a para-
Safety and Security, or its designated transit vehicle and performs pipeline
agent, by March 15, a report covering maintenance duties for you), count the
the previous calendar year (January 1 employee only on the MIS report for
through December 31) summarizing the the DOT agency under which he or she
results of its anti-drug and alcohol is random tested. Normally, this will
misuse programs. be the DOT agency under which the
(c) Each recipient shall be respon- employee performs more than 50% of
sible for ensuring the accuracy and his or her duties. Employers may have
timeliness of each report submitted by to explain the testing data for these
an employer, contractor, consortium or employees in the event of a DOT agen-
joint enterprise or by a third party cy inspection or audit.
service provider acting on the recipi- (g) A service agent (e.g., Consortia/
ent’s or employer’s behalf. Third Party Administrator as defined
(d) As an employer, you must use the in 49 CFR part 40) may prepare the MIS
Management Information System report on behalf of an employer. How-
(MIS) form and instructions as re- ever, a company official (e.g., Des-
quired by 49 CFR part 40, § 40.25 and ap- ignated Employer Representative as
68
defined in 49 CFR part 40) must certify a written request from the covered em-
the accuracy and completeness of the ployee. Subsequent disclosure by the
MIS report, no matter who prepares it. employer is permitted only as ex-
[66 FR 42002, Aug. 9, 2001, as amended at 68
pressly authorized by the terms of the
FR 75462, Dec. 31, 2003] covered employee’s request.
(g) An employer may disclose infor-
§ 655.73 Access to facilities and mation required to be maintained
records. under this part pertaining to a covered
(a) Except as required by law, or ex- employee to the employee or the deci-
pressly authorized or required in this sionmaker in a lawsuit, grievance, or
section, no employer may release infor- other proceeding initiated by or on be-
mation pertaining to a covered em- half of the individual, and arising from
ployee that is contained in records re- the results of a drug or alcohol test
quired to be maintained by § 655.71. under this part (including, but not lim-
(b) A covered employee is entitled, ited to, a worker’s compensation, un-
upon written request, to obtain copies employment compensation, or other
of any records pertaining to the cov- proceeding relating to a benefit sought
ered employee’s use of prohibited drugs by the covered employee.)
or misuse of alcohol, including any (h) An employer shall release infor-
records pertaining to his or her drug or mation regarding a covered employee’s
alcohol tests. The employer shall pro- record as directed by the specific, writ-
vide promptly the records requested by ten consent of the employee author-
the employee. Access to a covered em- izing release of the information to an
ployee’s records shall not be contin- identified person.
gent upon the employer’s receipt of (i) An employer may disclose drug
payment for the production of those and alcohol testing information re-
records. quired to be maintained under this
(c) An employer shall permit access part, pertaining to a covered employee,
to all facilities utilized and records to the State oversight agency or grant-
compiled in complying with the re- ee required to certify to FTA compli-
quirements of this part to the Sec- ance with the drug and alcohol testing
retary of Transportation or any DOT procedures of 49 CFR parts 40 and 655.
agency with regulatory authority over
the employer or any of its employees §§ 655.74–655.80 [Reserved]
or to a State oversight agency author-
ized to oversee rail fixed guideway sys- Subpart I—Certifying Compliance
tems.
(d) An employer shall disclose data § 655.81 Grantee oversight responsi-
for its drug and alcohol testing pro- bility.
grams, and any other information per- A grantee shall ensure that the re-
taining to the employer’s anti-drug and cipients of funds under 49 U.S.C. 5307,
alcohol misuse programs required to be 5309, 5311 or 23 U.S.C. 103(e)(4) comply
maintained by this part, to the Sec- with this part.
retary of Transportation or any DOT
agency with regulatory authority over § 655.82 Compliance as a condition of
the employer or covered employee or financial assistance.
to a State oversight agency authorized (a) General. A recipient may not be
to oversee rail fixed guideway systems, eligible for Federal financial assistance
upon the Secretary’s request or the re- under 49 U.S.C. 5307, 5309, or 5311 or
spective agency’s request. under 23 U.S.C. 103(e)(4), if a recipient
(e) When requested by the National fails to establish and implement an
Transportation Safety Board as part of anti-drug and alcohol misuse program
an accident investigation, employers as required by this part. Failure to cer-
shall disclose information related to tify compliance with these require-
the employer’s drug or alcohol testing ments, as specified in § 655.83, may re-
related to the accident under investiga- sult in the suspension of a grantee’s
tion. eligibility for Federal funding.
(f) Records shall be made available to (b) Criminal violation. A recipient is
a subsequent employer upon receipt of subject to criminal sanctions and fines
69
§ 655.83 49 CFR Ch. VI (10–1–07 Edition)
for false statements or misrepresenta- Subpart C—Role of the State Oversight

tions under 18 U.S.C. 1001. Agency
(c) State’s role. Each State shall cer-
tify compliance on behalf of its 49 659.13 Overview.
U.S.C. 5307, 5309, 5311 or 23 U.S.C. 659.15 System safety program standard.
659.17 System safety program plan: general
103(e)(4) subrecipients, as applicable. In
requirements.
so certifying, the State shall ensure
659.19 System safety program plan: con-
that each subrecipient is complying tents.
with the requirements of this part. A 659.21 System security plan: general re-
section 5307, 5309, 5311 or 103(e)(4) sub- quirements.
recipient, through the administering 659.23 System security plan: contents.
State, is subject to suspension of fund- 659.25 Annual review of system safety pro-
ing from the State if such subrecipient gram plan and system security plan.
is not in compliance with this part. 659.27 Internal safety and security reviews.
659.29 Oversight agency safety and security
§ 655.83 Requirement to certify compli- reviews.
ance. 659.31 Hazard management process.
(a) A recipient of FTA financial as- 659.33 Accident notification.
sistance shall annually certify compli- 659.35 Investigations.
ance, as set forth in § 655.82, to the ap- 659.37 Corrective action plans.
plicable FTA Regional Office. 659.39 Oversight agency reporting to the
(b) A certification must be author- Federal Transit Administration.
ized by the organization’s governing 659.41 Conflict of interest.
659.43 Certification of compliance.
board or other authorizing official, and
must be signed by a party specifically AUTHORITY: 49 U.S.C. 5330.
authorized to do so. SOURCE: 70 FR 22578, Apr. 29, 2005, unless
(c) A recipient will be ineligible for otherwise noted.
further FTA financial assistance if the
recipient fails to establish and imple-
ment an anti-drug and alcohol misuse Subpart A—General Provisions
program in accordance with this part. § 659.1 Purpose.
(d) FTA may determine that a recipi-
ent, who fails to comply with the This part implements 49 U.S.C. 5330
USCG chemical and alcohol testing re- by requiring a state to oversee the
quirements, shall be in noncompliance safety and security of rail fixed guide-
with the alcohol misuse and controlled way systems through a designated
substances testing requirements of this oversight agency.
part. A finding of noncompliance by
FTA may lead to the suspension of eli- § 659.3 Scope.
gibility for Federal public transpor- This part applies only to states with
tation funding. rail fixed guideway systems, as defined
[66 FR 42002, Aug. 9, 2001, as amended at 71 in this part.
FR 69198, Nov. 30, 2006]
§ 659.5 Definitions.
PART 659—RAIL FIXED GUIDEWAY Contractor means an entity that per-
SYSTEMS; STATE SAFETY OVERSIGHT forms tasks required on behalf of the
oversight or rail transit agency. The
Subpart A—General Provisions rail transit agency may not be a con-
tractor for the oversight agency.
Sec. Corrective action plan means a plan
659.1 Purpose.
659.3 Scope.
developed by the rail transit agency
659.5 Definitions. that describes the actions the rail tran-
sit agency will take to minimize, con-
Subpart B—Role of the State trol, correct, or eliminate hazards, and
the schedule for implementing those
659.7 Withholding of funds for noncompli-
ance.
actions.
659.9 Designation of oversight agency. FRA means the Federal Railroad Ad-
659.11 Confidentiality of investigation re- ministration, an agency within the
ports and security plans. U.S. Department of Transportation.
70
FTA means the Federal Transit Ad- Rail Transit Agency means an entity
ministration, an agency within the that operates a rail fixed guideway sys-
U.S. Department of Transportation. tem.
Hazard means any real or potential Rail Transit-Controlled Property means
condition (as defined in the rail transit property that is used by the rail transit
agency’s hazard management process) agency and may be owned, leased, or
that can cause injury, illness, or death; maintained by the rail transit agency.
damage to or loss of a system, equip- Rail Transit Vehicle means the rail
ment or property; or damage to the en- transit agency’s rolling stock, includ-
vironment. ing but not limited to passenger and
Individual means a passenger; em- maintenance vehicles.
ployee; contractor; other rail transit Safety means freedom from harm re-
facility worker; pedestrian; trespasser; sulting from unintentional acts or cir-
or any person on rail transit-controlled cumstances.
property. Security means freedom from harm
Investigation means the process used resulting from intentional acts or cir-
to determine the causal and contrib- cumstances.
uting factors of an accident or hazard, State means a State of the United
so that actions can be identified to pre- States, the District of Columbia, Puer-
vent recurrence. to Rico, the Northern Mariana Islands,
New Starts Project means any rail Guam, American Samoa, and the Vir-
fixed guideway system funded under gin Islands.
FTA’s 49 U.S.C. 5309 discretionary con- System Safety Program Plan means a
struction program. document developed and adopted by
Oversight Agency means the entity, the rail transit agency, describing its
other than the rail transit agency, des- safety policies, objectives, responsibil-
ignated by the state or several states ities, and procedures.
to implement this part. System Security Plan means a docu-
Passenger means a person who is on ment developed and adopted by the rail
board, boarding, or alighting from a transit agency describing its security
rail transit vehicle for the purpose of policies, objectives, responsibilities,
travel. and procedures.
Passenger Operations means the pe-
riod of time when any aspect of rail Subpart B—Role of the State
transit agency operations are initiated
with the intent to carry passengers. § 659.7 Withholding of funds for non-
Program Standard means a written compliance.
document developed and adopted by (a) The Administrator of the FTA
the oversight agency, that describes may withhold up to five percent of the
the policies, objectives, responsibil- amount required to be distributed to
ities, and procedures used to provide any state or affected urbanized area in
rail transit agency safety and security such state under FTA’s formula pro-
oversight. gram for urbanized areas, if:
Rail Fixed Guideway System means (1) The state in the previous fiscal
any light, heavy, or rapid rail system, year has not met the requirements of
monorail, inclined plane, funicular, this part; and
trolley, or automated guideway that: (2) The Administrator determines
(1) Is not regulated by the Federal that the state is not making adequate
Railroad Administration; and efforts to comply with this part.
(2) Is included in FTA’s calculation of (b) The Administrator may agree to
fixed guideway route miles or receives restore withheld formula funds, if com-
funding under FTA’s formula program pliance is achieved within two years
for urbanized areas (49 U.S.C. 5336); or (See 49 U.S.C. 5330).
(3) Has submitted documentation to
FTA indicating its intent to be in- § 659.9 Designation of oversight agen-
cluded in FTA’s calculation of fixed cy.
guideway route miles to receive fund- (a) General requirement. Each state
ing under FTA’s formula program for with an existing or anticipated rail
urbanized areas (49 U.S.C. 5336). fixed guideway system regulated by
71
§ 659.11 49 CFR Ch. VI (10–1–07 Edition)
this part shall designate an oversight To fulfill this requirement, the affected
agency consistent with the provisions states:
of this section. For a rail fixed guide- (1) May agree to designate one agen-
way system that will operate in only cy of one state, or an agency represent-
one state, the state must designate an ative of all states, to implement the re-
agency of the state, other than the rail quirements in this part; and
transit agency, as the oversight agency (2) In the event multiple states share
to implement the requirements in this oversight responsibility for a rail fixed
part. The state’s designation or re-des- guideway system, the states must en-
ignation of its oversight agency and
sure that the rail fixed guideway sys-
submission of required information as
tem is subject to a single program
specified in this section, are subject to
review by FTA. standard, adopted by all affected
states.
(b) Exception. States which have des-
ignated oversight agencies for purposes (f) Change of designation. Should a
of this part before May 31, 2005 are not state change its designated oversight
required to re-designate to FTA. agency, it shall submit the information
(c) Timing. The state designation of required under paragraph (d) of this
the oversight agency shall: section to FTA within (30) days of its
(1) Coincide with the execution of change. In addition, the new oversight
any grant agreement for a New Starts agency must submit a new initial sub-
project between FTA and a rail transit mission, consistent with § 659.39(b),
agency within the state’s jurisdiction; within (30) days of its designation.
or
(2) Occur before the application by a § 659.11 Confidentiality of investiga-
tion reports and security plans.
rail transit agency for funding under
FTA’s formula program for urbanized (a) A state may withhold an inves-
areas (49 U.S.C. 5336). tigation report that may have been
(d) Notification to FTA. Within (60) prepared or adopted by the oversight
days of designation of the oversight agency from being admitted as evi-
agency, the state must submit to FTA dence or used in a civil action for dam-
the following: ages resulting from a matter men-
(1) The name of the oversight agency tioned in the report.
designated to implement requirements (b) This part does not require public
in this part; availability of the rail transit agency’s
(2) Documentation of the oversight security plan and any referenced proce-
agency’s authority to provide state dures.
oversight;
(3) Contact information for the rep- Subpart C—Role of the State
resentative identified by the des-
ignated oversight agency with respon-
Oversight Agency
sibility for oversight activities; § 659.13 Overview.
(4) A description of the organiza-
tional and financial relationship be- The state oversight agency is respon-
tween the designated oversight agency sible for establishing standards for rail
and the rail transit agency; and safety and security practices and pro-
(5) A schedule for the designated cedures to be used by rail transit agen-
agency’s development of its State Safe- cies within its purview. In addition, the
ty Oversight Program, including the state oversight agency must oversee
projected date of its initial submission, the execution of these practices and
as required in § 659.39(a). procedures, to ensure compliance with
(e) Multiple states. In cases of a rail the provisions of this part. This sub-
fixed guideway system that will oper- part identifies and describes the var-
ate in more than one state, each af- ious requirements for the state over-
fected state must designate an agency sight agency.
of the state, other than the rail transit
agency, as the oversight agency to im-
plement the requirements in this part.
72
§ 659.15 System safety program stand- approve the rail transit agency’s an-
ard. nual reports on findings, which must be
(a) General requirement. Each state submitted under the signature of the
oversight agency shall develop and dis- rail transit agency’s top management.
tribute a program standard. The pro- (4) Oversight agency safety and security
gram standard is a compilation of proc- review section. This section shall lay
esses and procedures that governs the out the process and criteria to be used
conduct of the oversight program at at least every three years in con-
the state oversight agency level, and ducting a complete review of each af-
provides guidance to the regulated rail fected rail transit agency’s implemen-
transit properties concerning processes tation of its system safety program
and procedures they must have in place plan and system security plan. This
to be in compliance with the state safe- section includes the process to be used
ty oversight program. The program by the affected rail transit agency and
standard and any referenced program the oversight agency to manage find-
procedures must be submitted to FTA ings and recommendations from this
as part of the initial submission. Sub- review. This also includes procedures
sequent revisions and updates must be for notifying the oversight agency be-
submitted to FTA as part of the over- fore the rail transit agency conducts
sight agency’s annual submission. an internal review.
(b) Contents. Each oversight agency (5) Accident notification section. This
shall develop a written program stand- section shall include the specific re-
ard that meets the requirements speci- quirements for the rail transit agency
fied in this part and includes, at a min- to notify the oversight agency of acci-
imum, the areas identified in this sec- dents. This section shall also include
tion. required timeframes, methods of notifi-
(1) Program management section. This cation, and the information to be sub-
section shall include an explanation of mitted by the rail transit agency. Ad-
the oversight agency’s authority, poli- ditional detail on this portion is in-
cies, and roles and responsibilities for cluded in § 659.33 of this part.
providing safety and security oversight (6) Investigations section. This section
of the rail transit agencies within its contains the oversight agency identi-
jurisdiction. This section shall provide fication of the thresholds for incidents
an overview of planned activities to en- that require an oversight agency inves-
sure on-going communication with tigation. The roles and responsibilities
each affected rail transit agency relat- for conducting investigations shall in-
ing to safety and security information, clude: coordination with the rail tran-
as well as FTA reporting requirements, sit agency investigation process, the
including initial, annual and periodic role of the oversight agency in sup-
submissions. porting investigations and findings
(2) Program standard development sec- conducted by the NTSB, review and
tion. This section shall include a de- concurrence of investigation report
scription of the oversight agency’s findings, and procedures for protecting
process for the development, review, the confidentiality of investigation re-
and adoption of the program standard, ports.
the modification and/or update of the (7) Corrective actions section. This sec-
program standard, and the process by tion shall specify oversight agency cri-
which the program standard and any teria for the development of corrective
subsequent revisions are distributed to action plan(s) and the process for the
each affected rail transit agency. review and approval of a corrective ac-
(3) Oversight of rail transit agency in- tion plan developed by the rail transit
ternal safety and security reviews. This agency. This section shall also identify
section shall specify the role of the the oversight agency’s policies for the
oversight agency in overseeing the rail verification and tracking of corrective
transit agency internal safety and se- action plan implementation, and its
curity review process. This includes a process for managing conflicts with the
description of the process used by the rail transit agency relating to inves-
oversight agency to receive rail transit tigation findings and corrective action
agency checklists and procedures and plan development.
73
§ 659.17 49 CFR Ch. VI (10–1–07 Edition)
(8) System safety program plan section. (a) A policy statement signed by the
This section shall specify the minimum agency’s chief executive that endorses
requirements to be contained in the the safety program and describes the
rail transit agency’s system safety pro- authority that establishes the system
gram plan. The contents of the system safety program plan.
safety plan are discussed in more detail (b) A clear definition of the goals and
in § 659.19 of this part. This section objectives for the safety program and
shall also specify information to be in- stated management responsibilities to
cluded in the affected rail transit agen- ensure they are achieved.
cy’s system safety program plan relat- (c) An overview of the management
ing to the hazard management process, structure of the rail transit agency, in-
including requirements for on-going cluding:
communication and coordination relat- (1) An organization chart;
ing to the identification, categoriza- (2) A description of how the safety
tion, resolution, and reporting of haz- function is integrated into the rest of
ards to the oversight agency. More de- the rail transit organization; and
tails on the hazard management proc- (3) Clear identification of the lines of
ess are contained in § 659.31 of this part. authority used by the rail transit agen-
This section shall also describe the cy to manage safety issues.
process and timeframe through which (d) The process used to control
the oversight agency must receive, re- changes to the system safety program
view, and approve the rail transit agen- plan, including:
cy system safety program plan. (1) Specifying an annual assessment
(9) System security plan section. This of whether the system safety program
section shall specify the minimum re- plan should be updated; and
quirements to be included in the rail (2) Required coordination with the
transit agency’s system security plan. oversight agency, including time-
More details about the system security frames for submission, revision, and
plan are contained in §§ 659.21 through approval.
659.23 of this part. This section shall
(e) A description of the specific ac-
also describe the process by which the
tivities required to implement the sys-
oversight agency will review and ap-
tem safety program, including:
prove the rail transit agency system
(1) Tasks to be performed by the rail
security program plan. This section
transit safety function, by position and
also shall identify how the state will
management accountability, specified
prevent the system security plan from
in matrices and/or narrative format;
public disclosure.
and
§ 659.17 System safety program plan: (2) Safety-related tasks to be per-
general requirements. formed by other rail transit depart-
(a) The oversight agency shall re- ments, by position and management
quire the rail transit agency to develop accountability, specified in matrices
and implement a written system safety and/or narrative format.
program plan that complies with re- (f) A description of the process used
quirements in this part and the over- by the rail transit agency to imple-
sight agency’s program standard. ment its hazard management program,
(b) The oversight agency shall review including activities for:
and approve the rail transit agency (1) Hazard identification;
system safety program plan. (2) Hazard investigation, evaluation
(c) After approval, the oversight and analysis;
agency shall issue a formal letter of ap- (3) Hazard control and elimination;
proval to the rail transit agency, in- (4) Hazard tracking; and
cluding the checklist used to conduct (5) Requirements for on-going report-
the review. ing to the oversight agency relating to
hazard management activities and sta-
§ 659.19 System safety program plan: tus.
contents. (g) A description of the process used
The system safety plan shall include, by the rail transit agency to ensure
at a minimum: that safety concerns are addressed in
74
modifications to existing systems, ve- ate compliance with the system safety
hicles, and equipment, which do not re- program plan, including:
quire formal safety certification but (1) Identification of departments and
which may have safety impacts. functions subject to review;
(h) A description of the safety certifi- (2) Responsibility for scheduling re-
cation process required by the rail views;
transit agency to ensure that safety (3) Process for conducting reviews,
concerns and hazards are adequately including the development of check-
addressed prior to the initiation of pas- lists and procedures and the issuing of
senger operations for New Starts and findings;
subsequent major projects to extend, (4) Review of reporting requirements;
rehabilitate, or modify an existing sys- (5) Tracking the status of imple-
tem, or to replace vehicles and equip- mented recommendations; and
ment. (6) Coordination with the oversight
(i) A description of the process used agency.
to collect, maintain, analyze, and dis- (m) A description of the process used
tribute safety data, to ensure that the by the rail transit agency to develop,
safety function within the rail transit maintain, and ensure compliance with
organization receives the necessary in- rules and procedures having a safety
formation to support implementation impact, including:
of the system safety program. (1) Identification of operating and
(j) A description of the process used maintenance rules and procedures sub-
by the rail transit agency to perform ject to review;
accident notification, investigation (2) Techniques used to assess the im-
and reporting, including: plementation of operating and mainte-
(1) Notification thresholds for inter- nance rules and procedures by employ-
nal and external organizations; ees, such as performance testing;
(2) Accident investigation process (3) Techniques used to assess the ef-
and references to procedures; fectiveness of supervision relating to
(3) The process used to develop, im- the implementation of operating and
plement, and track corrective actions maintenance rules; and
that address investigation findings; (4) Process for documenting results
(4) Reporting to internal and external and incorporating them into the hazard
organizations; and management program.
(5) Coordination with the oversight (n) A description of the process used
agency. for facilities and equipment safety in-
(k) A description of the process used spections, including:
by the rail transit agency to develop an (1) Identification of the facilities and
approved, coordinated schedule for all equipment subject to regular safety-re-
emergency management program ac- lated inspection and testing;
tivities, which include: (2) Techniques used to conduct in-
(1) Meetings with external agencies; spections and testing;
(2) Emergency planning responsibil- (3) Inspection schedules and proce-
ities and requirements; dures; and
(3) Process used to evaluate emer- (4) Description of how results are en-
gency preparedness, such as annual tered into the hazard management
emergency field exercises; process.
(4) After action reports and imple- (o) A description of the maintenance
mentation of findings; audits and inspections program, includ-
(5) Revision and distribution of emer- ing identification of the affected facili-
gency response procedures; ties and equipment, maintenance cy-
(6) Familiarization training for pub- cles, documentation required, and the
lic safety organizations; and process for integrating identified prob-
(7) Employee training. lems into the hazard management
(l) A description of the process used process.
by the rail transit agency to ensure (p) A description of the training and
that planned and scheduled internal certification program for employees
safety reviews are performed to evalu- and contractors, including:
75
§ 659.21 49 CFR Ch. VI (10–1–07 Edition)
(1) Categories of safety-related work part of the rail transit agency’s system
requiring training and certification; safety program plan.
(2) A description of the training and (b) The oversight agency may pro-
certification program for employees hibit a rail transit agency from pub-
and contractors in safety-related posi- licly disclosing the system security
tions; plan.
(3) Process used to maintain and ac- (c) After approving the system secu-
cess employee and contractor training rity plan, the oversight agency shall
records; and issue a formal letter of approval, in-
(4) Process used to assess compliance cluding the checklist used to conduct
with training and certification require- the review, to the rail transit agency.
ments.
(q) A description of the configuration § 659.23 System security plan: con-
management control process, includ- tents.
ing: The system security plan must, at a
(1) The authority to make configura- minimum address the following:
tion changes; (a) Identify the policies, goals, and
(2) Process for making changes; and objectives for the security program en-
(3) Assurances necessary for formally dorsed by the agency’s chief executive.
notifying all involved departments. (b) Document the rail transit agen-
(r) A description of the safety pro- cy’s process for managing threats and
gram for employees and contractors vulnerabilities during operations, and
that incorporates the applicable local, for major projects, extensions, new ve-
state, and federal requirements, includ- hicles and equipment, including inte-
ing: gration with the safety certification
(1) Safety requirements that employ- process;
ees and contractors must follow when (c) Identify controls in place that ad-
working on, or in close proximity to, dress the personal security of pas-
rail transit agency property; and sengers and employees;
(2) Processes for ensuring the em- (d) Document the rail transit agen-
ployees and contractors know and fol- cy’s process for conducting internal se-
low the requirements. curity reviews to evaluate compliance
(s) A description of the hazardous and measure the effectiveness of the
materials program, including the proc- system security plan; and
ess used to ensure knowledge of and (e) Document the rail transit agen-
compliance with program require- cy’s process for making its system se-
ments. curity plan and accompanying proce-
(t) A description of the drug and alco- dures available to the oversight agency
hol program and the process used to for review and approval.
ensure knowledge of and compliance
with program requirements. § 659.25 Annual review of system safe-
(u) A description of the measures, ty program plan and system secu-
controls, and assurances in place to en- rity plan.
sure that safety principles, require- (a) The oversight agency shall re-
ments and representatives are included quire the rail transit agency to con-
in the rail transit agency’s procure- duct an annual review of its system
ment process. safety program plan and system secu-
rity plan.
§ 659.21 System security plan: general (b) In the event the rail transit agen-
requirements. cy’s system safety program plan is
(a) The oversight agency shall re- modified, the rail transit agency must
quire the rail transit agency to imple- submit the modified plan and any sub-
ment a system security plan that, at a sequently modified procedures to the
minimum, complies with requirements oversight agency for review and ap-
in this part and the oversight agency’s proval. After the plan is approved, the
program standard. The system security oversight agency must issue a formal
plan must be developed and maintained letter of approval to the rail transit
as a separate document and may not be agency.
76
(c) In the event the rail transit agen- the rail transit agency is in compliance
cy’s system security plan is modified, with its system safety program plan
the rail transit agency must make the and system security plan.
modified system security plan and ac- (h) If the rail transit agency deter-
companying procedures available to mines that findings from its internal
the oversight agency for review, con- safety and security reviews indicate
sistent with requirements specified in that the rail transit agency is not in
§ 659.23(e) of this part. After the plan is compliance with its system safety pro-
approved, the oversight agency shall gram plan or system security plan, the
issue a formal letter of approval to the chief executive must identify the ac-
rail transit agency. tivities the rail transit agency will
take to achieve compliance.
§ 659.27 Internal safety and security
reviews. (i) The oversight agency must for-
mally review and approve the annual
(a) The oversight agency shall re- report.
quire the rail transit agency to develop
and document a process for the per- § 659.29 Oversight agency safety and
formance of on-going internal safety security reviews.
and security reviews in its system safe- At least every three (3) years, begin-
ty program plan. ning with the initiation of rail transit
(b) The internal safety and security agency passenger operations, the over-
review process must, at a minimum: sight agency must conduct an on-site
(1) Describe the process used by the review of the rail transit agency’s im-
rail transit agency to determine if all plementation of its system safety pro-
identified elements of its system safety gram plan and system security plan.
program plan and system security plan Alternatively, the on-site review may
are performing as intended; and be conducted in an on-going manner
(2) Ensure that all elements of the over the three year timeframe. At the
system safety program plan and sys- conclusion of the review cycle, the
tem security plan are reviewed in an oversight agency must prepare and
on-going manner and completed over a issue a report containing findings and
three-year cycle. recommendations resulting from that
(c) The rail transit agency must no- review, which, at a minimum, must in-
tify the oversight agency at least thir- clude an analysis of the effectiveness of
ty (30) days before the conduct of the system safety program plan and
scheduled internal safety and security the security plan and a determination
reviews. of whether either should be updated.
(d) The rail transit agency shall sub-
mit to the oversight agency any check- § 659.31 Hazard management process.
lists or procedures it will use during
the safety portion of its review. (a) The oversight agency must re-
(e) The rail transit agency shall quire the rail transit agency to develop
make available to the oversight agency and document in its system safety pro-
any checklists or procedures subject to gram plan a process to identify and re-
the security portion of its review, con- solve hazards during its operation, in-
sistent with § 659.23(e). cluding any hazards resulting from
(f) The oversight agency shall require subsequent system extensions or modi-
the rail transit agency to annually sub- fications, operational changes, or other
mit a report documenting internal changes within the rail transit envi-
safety and security review activities ronment.
and the status of subsequent findings (b) The hazard management process
and corrective actions. The security must, at a minimum:
part of this report must be made avail- (1) Define the rail transit agency’s
able for oversight agency review, con- approach to hazard management and
sistent with § 659.23(e). the implementation of an integrated
(g) The annual report must be accom- system-wide hazard resolution process;
panied by a formal letter of certifi- (2) Specify the sources of, and the
cation signed by the rail transit agen- mechanisms to support, the on-going
cy’s chief executive, indicating that identification of hazards;
77
§ 659.33 49 CFR Ch. VI (10–1–07 Edition)
(3) Define the process by which iden- § 659.35 Investigations.

tified hazards will be evaluated and
(a) The oversight agency must inves-
prioritized for elimination or control;
(4) Identify the mechanism used to tigate, or cause to be investigated, at a
track through resolution the identified minimum, any incident involving a rail
hazard(s); transit vehicle or taking place on rail
(5) Define minimum thresholds for transit-controlled property meeting
the notification and reporting of haz- the notification thresholds identified
ard(s) to oversight agencies; and in § 659.33(a).
(6) Specify the process by which the (b) The oversight agency must use its
rail transit agency will provide on- own investigation procedures or those
going reporting of hazard resolution that have been formally adopted from
activities to the oversight agency. the rail transit agency and that have
been submitted to FTA.
§ 659.33 Accident notification. (c) In the event the oversight agency
(a) The oversight agency must re- authorizes the rail transit agency to
quire the rail transit agency to notify conduct investigations on its behalf, it
the oversight agency within two (2) must do so formally and require the
hours of any incident involving a rail rail transit agency to use investigation
transit vehicle or taking place on rail procedures that have been formally ap-
transit-controlled property where one proved by the oversight agency.
or more of the following occurs: (d) Each investigation must be docu-
(1) A fatality at the scene; or where mented in a final report that includes a
an individual is confirmed dead within description of investigation activities,
thirty (30) days of a rail transit-related identified causal and contributing fac-
incident; tors, and a corrective action plan.
(2) Injuries requiring immediate med- (e) A final investigation report must
ical attention away from the scene for be formally adopted by the oversight
two or more individuals; agency for each accident investigation.
(3) Property damage to rail transit (1) If the oversight agency has con-
vehicles, non-rail transit vehicles, ducted the investigation, it must for-
other rail transit property or facilities mally transmit its final investigation
and non-transit property that equals or report to the rail transit agency.
exceeds $25,000; (2) If the oversight agency has au-
(4) An evacuation due to life safety thorized an entity other than itself (in-
reasons; cluding the rail transit agency) to con-
(5) A collision at a grade crossing;
duct the accident investigation on its
(6) A main-line derailment;
behalf, the oversight agency must re-
(7) A collision with an individual on a
view and formally adopt the final in-
rail right of way; or
vestigation report.
(8) A collision between a rail transit
vehicle and a second rail transit vehi- (3) If the oversight agency does not
cle, or a rail transit non-revenue vehi- concur with the findings of the rail
cle. transit agency investigation report, it
(b) The oversight agency shall re- must either:
quire rail transit agencies that share (i) Conduct its own investigation ac-
track with the general railroad system cording to paragraphs (b), (d) and (e)(1)
and are subject to the Federal Railroad of this section; or
Administration notification require- (ii) Formally transmit its dissent to
ments, to notify the oversight agency the findings of the accident investiga-
within two (2) hours of an incident for tion, report its dissent to the rail tran-
which the rail transit agency must also sit agency, and negotiate with the rail
notify the Federal Railroad Adminis- transit agency until a resolution on
tration. the findings is reached.
(c) The oversight agency shall iden- (f) The oversight agency shall have
tify in its program standard the meth- the authority to require periodic status
od of notification and the information reports that document investigation
to be provided by the rail transit agen- activities and findings in a time frame
cy determined by the oversight agency.
78
§ 659.37 Corrective action plans. 2006, must make its initial submission
(a) The oversight agency must, at a to FTA by May 1, 2006. In states with
minimum, require the development of rail fixed guideway systems initiating
a corrective action plan for the fol- passenger operations after May 1, 2006,
lowing: the designated oversight agency must
(1) Results from investigations, in make its initial submission within the
which identified causal and contrib- time frame specified by the state in its
uting factors are determined by the designation submission, but not later
rail transit agency or oversight agency than at least sixty (60) days prior to
as requiring corrective actions; and initiation of passenger operations. Any
(2) Findings from safety and security time a state changes its designated
reviews performed by the oversight oversight agency to carry out the re-
agency. quirements identified in this part, the
(b) Each corrective action plan new oversight agency must make a new
should identify the action to be taken initial submission to FTA within thir-
by the rail transit agency, an imple- ty (30) days of the designation.
mentation schedule, and the individual (b) An initial submission must in-
or department responsible for the im- clude the following:
plementation. (1) Oversight agency program stand-
(c) The corrective action plan must ard and referenced procedures; and
be reviewed and formally approved by (2) Certification that the system safe-
the oversight agency. ty program plan and the system secu-
(d) The oversight agency must estab- rity plan have been developed, re-
lish a process to resolve disputes be- viewed, and approved.
tween itself and the rail transit agency (c) Annual submission. Before March
resulting from the development or en- 15 of each year, the oversight agency
forcement of a corrective action plan. must submit the following to FTA:
(e) The oversight agency must iden- (1) A publicly available annual report
tify the process by which findings from summarizing its oversight activities
an NTSB accident investigation will be for the preceding twelve months, in-
evaluated to determine whether or not cluding a description of the causal fac-
a corrective action plan should be de- tors of investigated accidents, status of
veloped by either the oversight agency corrective actions, updates and modi-
or rail transit agency to address NTSB fications to rail transit agency pro-
findings. gram documentation, and the level of
(f) The rail transit agency must pro-
effort used by the oversight agency to
vide the oversight agency:
carry out its oversight activities.
(1) Verification that the corrective
action(s) has been implemented as de- (2) A report documenting and track-
scribed in the corrective action plan, or ing findings from three-year safety re-
that a proposed alternate action(s) has view activities, and whether a three-
been implemented subject to oversight year safety review has been completed
agency review and approval; and since the last annual report was sub-
(2) Periodic reports requested by the mitted.
oversight agency, describing the status (3) Program standard and supporting
of each corrective action(s) not com- procedures that have changed during
pletely implemented, as described in the preceding year.
the corrective action plan. (4) Certification that any changes or
(g) The oversight agency must mon- modifications to the rail transit agen-
itor and track the implementation of cy system safety program plan or sys-
each approved corrective action plan. tem security plan have been reviewed
and approved by the oversight agency.
§ 659.39 Oversight agency reporting to (d) Periodic submission. FTA retains
the Federal Transit Administration. the authority to periodically request
(a) Initial submission. Each designated program information.
oversight agency with a rail fixed (e) Electronic reporting. All submis-
guideway system that is in passenger sions to FTA required in this part must
operations as of April 29, 2005 or will be submitted electronically using a re-
begin passenger operations by May 1, porting system specified by FTA.
79
§ 659.41 49 CFR Ch. VI (10–1–07 Edition)
§ 659.41 Conflict of interest. SOURCE: 56 FR 932, Jan. 9, 1991, unless oth-

erwise noted.
The oversight agency shall prohibit a
party or entity from providing services § 661.1 Applicability.
to both the oversight agency and rail Unless otherwise noted, this part ap-
transit agency when there is a conflict plies to all federally assisted procure-
of interest, as defined by the state. ments using funds authorized by the
§ 659.43 Certification of compliance. Federal Mass Transit Act of 1964, as
amended; 23 U.S.C. 103(e)(4); and sec-
(a) Annually, the oversight agency tion 14 of the National Capital Trans-
must certify to the FTA that it has portation Act of 1969, as amended.
complied with the requirements of this
part. EFFECTIVE DATE NOTE: At 72 FR 53696,
Sept. 20, 2007, § 661.1 was amended by remov-
(b) The oversight agency must sub- ing ‘‘Federal Mass Transit Act of 1964, as
mit each certification electronically to amended’’ and adding in its place ‘‘49 U.S.C.
FTA using a reporting system specified 5323(j)’’, effective Oct. 22, 2007.
by FTA.
(c) The oversight agency must main- § 661.3 Definitions.
tain a signed copy of each annual cer- As used in this part:
tification to FTA, subject to audit by Act means the Surface Transpor-
FTA. tation Assistance Act of 1982 (Pub. L.
97–424), as amended by the Safe, Ac-
PART 661—BUY AMERICA countable, Flexible, Efficient Trans-
REQUIREMENTS portation Equity Act: A Legacy for
Users (Pub. L. 109–59).
Sec. Administrator means the Adminis-
661.1 Applicability. trator of FTA, or designee.
661.3 Definitions. Component means any article, mate-
661.5 General requirements. rial, or supply, whether manufactured
661.6 Certification requirements for pro- or unmanufactured, that is directly in-
curement of steel or manufactured prod- corporated into the end product at the
ucts. final assembly location.
661.7 Waivers. Contractor means a party to a third
661.9 Application for waivers.
party contract other than the grantee.
661.11 Rolling stock procurements.
FTA means the Federal Transit Ad-
661.12 Certification requirement for pro-
curement of buses, other rolling stock ministration.
and associated equipment. Grantee means any entity that is a
661.13 Grantee responsibility. recipient of FTA funds.
661.15 Investigation procedures. Manufactured product means an item
661.17 Failure to comply with certification. produced as a result of the manufac-
661.18 Intentional violations. turing process.
661.19 Sanctions. Manufacturing process means the ap-
661.20 Rights of parties. plication of processes to alter the form
661.21 State Buy America provisions. or function of materials or of elements
AUTHORITY: 49 U.S.C. 5323(j) (formerly sec. of the product in a manner adding
165, Pub. L. 97–424; as amended by sec. 337, value and transforming those materials
Pub. L. 100–17, sec. 1048, Pub. L. 102–240, sec. or elements so that they represent a
3020(b), Pub. L. 105–178, and sec. 3023(i) and new end product functionally different
(k), Pub. L. 109–59); 49 CFR 1.51. from that which would result from
EFFECTIVE DATE NOTE: At 72 FR 53696, mere assembly of the elements or ma-
Sept. 20, 2007, the authority citation was re- terials.
vised, effective Oct. 22, 2007. For the conven- Negotiated procurement means a con-
ience of the user, the revised text is set forth tract awarded using other than sealed
as follows: bidding procedures.
AUTHORITY: 49 U.S.C. 5323(j) (formerly sec.
Rolling stock means transit vehicles
165 of the Surface Transportation Assistance
Act of 1982 (Pub. L. 97–424); as amended by such as buses, vans, cars, railcars, loco-
sec. 337, Pub. L. 100–17; sec. 1048, Pub. L. 102– motives, trolley cars and buses, and
240; sec. 3020(b), Pub. L. 105–178; and sec. ferry boats, as well as vehicles used for
3023(i) and (k), Pub. L. 109–59); 49 CFR 1.51. support services.
80
SAFETEA–LU means the Safe, Ac- consisting of individual components, wheth-

countable, Flexible, Efficient Trans- er separate or interconnected by piping,
portation Equity Act: A Legacy for transmission devices, electrical cables or cir-
cuitry, or by other devices, which are in-
Users (Pub. L. 109–59). tended to contribute together to a clearly
United States means the several defined function. Factors to consider in de-
States, the Commonwealth of Puerto termining whether a system constitutes an
Rico, the District of Columbia, Guam, end product include: Whether performance
American Samoa, the Virgin Islands, warranties apply to an integrated system
and the Commonwealth of the North- (regardless of whether components are sepa-
ern Mariana Islands. rately warranteed); whether products per-
form on an integrated basis with other prod-
[71 FR 14117, Mar. 21, 2006] ucts in a system, or are operated independ-
EFFECTIVE DATE NOTE: At 72 FR 53696, ently of associated products in the system;
Sept. 20, 2007, § 661.3 was revised, effective or whether transit agencies routinely pro-
Oct. 22, 2007. For the convenience of the user, cure a product separately (other than as re-
the revised text is set forth as follows: placement or spare parts).
United States means the several States, the
§ 661.3 Definitions. Commonwealth of Puerto Rico, the District
As used in this part: of Columbia, Guam, American Samoa, the
Act means the Federal Public Transpor- U.S. Virgin Islands, and the Commonwealth
tation Law (49 U.S.C. Chapter 53). of the Northern Mariana Islands.
Administrator means the Administrator of APPENDIX A TO § 661.3—END PRODUCTS
FTA, or designee.
Component means any article, material, or The following is a list of representative
supply, whether manufactured or unmanu- end products that are subject to the require-
factured, that is directly incorporated into ments of Buy America. This list is represent-
the end product at the final assembly loca- ative, not exhaustive.
tion. (1) Rolling stock end products: All individual
Contractor means a party to a third party items identified as rolling stock in § 661.3
contract other than the grantee. (e.g., buses, vans, cars, railcars, locomotives,
End product means any vehicle, structure, trolley cars and buses, ferry boats, as well as
product, article, material, supply, or system, vehicles used for support services); train con-
which directly incorporates constituent trol, communication, and traction power
components at the final assembly location, equipment that meets the definition of end
that is acquired for public use under a feder- product at § 661.3 (e.g., a communication or
ally-funded third-party contract, and which traction power system).
is ready to provide its intended end function (2) Steel and iron end products: Items made
or use without any further manufacturing or primarily of steel or iron such as structures,
assembly change(s). A list of representative bridges, and track work, including running
end products is included at Appendix A to rail, contact rail, and turnouts.
this section. (3) Manufactured end products: Infrastruc-
FTA means the Federal Transit Adminis- ture projects not made primarily of steel or
tration. iron, including structures (terminals, depots,
Grantee means any entity that is a recipi- garages, and bus shelters), ties and ballast;
ent of FTA funds. contact rail not made primarily of steel or
Manufactured product means an item pro- iron; fare collection systems; computers; in-
duced as a result of the manufacturing proc- formation systems; security systems; data
ess. processing systems; and mobile lifts, hoists,
Manufacturing process means the applica- and elevators.
tion of processes to alter the form or func-
tion of materials or of elements of the prod- § 661.5 General requirements.
uct in a manner adding value and trans- (a) Except as provided in § 661.7 and
forming those materials or elements so that
they represent a new end product function- § 661.11 of this part, no funds may be ob-
ally different from that which would result ligated by FTA for a grantee project
from mere assembly of the elements or ma- unless all iron, steel, and manufactured
terials. products used in the project are pro-
Negotiated procurement means a contract duced in the United States.
awarded using other than sealed bidding pro- (b) All steel and iron manufacturing
cedures. processes must take place in the
Rolling stock means transit vehicles such as
United States, except metallurgical
buses, vans, cars, railcars, locomotives, trol-
ley cars and buses, and ferry boats, as well as processes involving refinement of steel
vehicles used for support services. additives.
System means a machine, product, or de- (c) The steel and iron requirements
vice, or a combination of such equipment, apply to all construction materials
81
§ 661.6 49 CFR Ch. VI (10–1–07 Edition)
made primarily of steel or iron and to section 165(b)(2) or (b)(4) of the Sur-
used in infrastructure projects such as face Transportation Assistance Act of
transit or maintenance facilities, rail 1982, as amended, and the applicable
lines, and bridges. These items include, regulations in 49 CFR 661.7.
but are not limited to, structural steel Date lllllllllllllllllllll
or iron, steel or iron beams and col- Signature llllllllllllllllll
umns, running rail and contact rail. Company llllllllllllllllll
These requirements do not apply to Name llllllllllllllllllll
steel or iron used as components or Title lllllllllllllllllllll
subcomponents of other manufactured [71 FR 14117, Mar. 21, 2006]
products or rolling stock. EFFECTIVE DATE NOTE: At 72 FR 53696,
(d) For a manufactured product to be Sept. 20, 2007, § 661.6 was amended by remov-
considered produced in the United ing ‘‘Certificate of Compliance With Section
States: 165(a)’’ and adding in its place ‘‘Certificate of
(1) All of the manufacturing proc- Compliance with Buy America Require-
esses for the product must take place ments’’ and removing ‘‘section 165(a) of the
in the United States; and Surface Transportation Assistance Act of
(2) All of the components of the prod- 1982, as amended’’ and adding in its place ‘‘49
U.S.C. 5323(j)(1)’’, and removing ‘‘Certificate
uct must be of U.S. origin. A compo- for Non-Compliance with Section 165(a)’’ and
nent is considered of U.S. origin if it is adding in its place ‘‘Certificate of Non-Com-
manufactured in the United States, re- pliance with Buy America Requirements’’,
gardless of the origin of its subcompo- and removing ‘‘section 165(a) of the Surface
nents. Transportation Assistance Act of 1982, as
amended’’ and adding in its place ‘‘49 U.S.C.
[61 FR 6302, Feb. 16, 1996] 5323(j)’’, and removing ‘‘section 165(b)(2) or
(b)(4) of the Surface Transportation Assist-
§ 661.6 Certification requirements for ance Act of 1982’’ and adding in its place ‘‘49
procurement of steel or manufac- U.S.C. 5323(j)(2)’’, effective Oct. 22, 2007.
tured products.
If steel, iron, or manufactured prod- § 661.7 Waivers.
ucts (as defined in §§ 661.3 and 661.5 of (a) Section 165(b) of the Act provides
this part) are being procured, the ap- that the general requirements of sec-
propriate certificate as set forth below tion 165(a) shall not apply in four spe-
shall be completed and submitted by cific instances. This section sets out
each bidder or offeror in accordance the conditions for the three statutory
with the requirement contained in waivers based on public interest, non-
§ 661.13(b) of this part. availability, and price-differential.
Section 661.11 of this part sets out the
Certificate of Compliance With Section conditions for the fourth statutory
165(a) waiver governing the procurement of
The bidder or offeror hereby certifies rolling stock and associated equip-
that it will comply with the requirement.
ments of section 165(a) of the Surface (b) Under the provision of section
Transportation Assistance Act of 1982, 165(b)(1) of the Act, the Administrator
as amended, and the applicable regula- may waive the general requirements of
tions in 49 CFR part 661. section 165(a) if the Administrator
Date lllllllllllllllllllll finds that their application would be
Signature llllllllllllllllll inconsistent with the public interest.
Company llllllllllllllllll In determining whether the conditions
Name llllllllllllllllllll exist to grant this public interest waiv-
Title lllllllllllllllllllll er, the Administrator will consider all
appropriate factors on a case-by-case
Certificate for Non-Compliance With
basis, unless a general exception is spe-
Section 165(a)
cifically set out in this part.
The bidder or offeror hereby certifies (c) Under the provision of section
that it cannot comply with the require- 165(b)(2) of the Act, the Administrator
ments of section 165(a) of the Surface may waive the general requirements of
Transportation Assistance Act of 1982, section 165(a) if the Administrator
as amended, but it may qualify for an finds that the materials for which a
exception to the requirement pursuant waiver is requested are not produced in
82
the United States in sufficient and rea- item or material will be treated as
sonably available quantities and of a being of domestic origin.
satisfactory quality. (h) The provisions of this section
(1) It will be presumed that the con- shall not apply to products produced in
ditions exist to grant this non-avail- a foreign country if the Secretary, in
ability waiver if no responsive and re- consultation with the United States
sponsible bid is received offering an Trade Representative, determines that:
item produced in the United States. (1) That foreign country is party to
(2) In the case of a sole source pro- an agreement with the United States
curement, the Administrator will grant pursuant to which the head of an agen-
this non-availability waiver only if the cy of the United States has waived the
grantee provides sufficient information requirements of this section; and
which indicates that the item to be (2) That foreign country has violated
procured is only available from a single the terms of the agreement by dis-
source or that the item to be procured criminating against products covered
is not produced in sufficient and rea- by this section that are produced in the
sonably available quantities of a satis- United States and are covered by the
factory quality in the United States. agreement.
(d) Under the provision of section
APPENDIX A TO § 661.7—GENERAL WAIVERS
165(b)(4) of the Act, the Administrator
may waive the general requirements of (a) All waivers published in 48 CFR 25.108
section 165(a) if the Administrator which establish excepted articles, materials,
and supplies for the Buy American Act of
finds that the inclusion of a domestic
1933 (41 U.S.C. 10a–d), as the waivers may be
item or domestic material will increase amended from time to time, apply to this
the cost of the contract between the part under the provisions of § 661.7 (b) and (c).
grantee and its supplier of that item or (b) Under the provisions of § 661.7 (b) and (c)
material by more than 25 percent. The of this part, microcomputer equipment, in-
Administrator will grant this price-dif- cluding software, of foreign origin can be
ferential waiver if the amount of the procured by grantees (50 FR 18760, May 2,
lowest responsive and responsible bid 1985 and 51 FR 36126, October 8, 1986).
(c) Under the provisions of § 661.7(b) of this
offering the item or material that is
part, a general public interest waiver from
not produced in the United States mul- the Buy America requirements for ‘‘small
tiplied by 1.25 is less than the amount purchases’’ (as defined in the ‘‘common grant
of the lowest responsive and respon- rule,’’ at 49 CFR 18.36(d)) made by FTA
sible bid offering the item or material grantees with capital, planning, or operating
produced in the United States. assistance.
(e) The four statutory waivers of sec- [56 FR 932, Jan. 9, 1991, as amended at 60 FR
tion 165(b) of the Act as set out in this 37928, July 24, 1995, 61 FR 6302, Feb. 16, 1996;
part shall be treated as being separate 71 FR 14117, Mar. 21, 2006]
and distinct from each other. EFFECTIVE DATE NOTE: At 72 FR 53697,
(f) The waivers described in para- Sept. 20, 2007, § 661.7 was amended by remov-
graphs (b) and (c) of this section may ing ‘‘Section 165(b) of the Act’’ and adding in
be granted for a component or sub- its place ‘‘Section 5323(j)(2) of Title 49 United
component in the case of the procure- States Code’’ and removing ‘‘section 165(a)’’
ment of the items governed by section and adding in its place ‘‘49 U.S.C. 5323(j)(1)’’
165(b)(3) of the Act (requirements for in paragraph (a); revising paragraph (b);
amending paragraph (c) by removing ‘‘sec-
rolling stock). If a waiver is granted for
tion 165(b)(2) of the Act’’ and adding in its
a component or a subcomponent, that place ‘‘49 U.S.C. 5323(j)(2)’’ and removing
component or subcomponent will be ‘‘section 165(a)’’ and adding in its place ‘‘49
considered to be of domestic origin for U.S.C. 5323(j)’’; adding a new paragraph (c)(3);
the purposes of § 661.11 of this part. amending paragraph (e) by removing ‘‘sec-
(g) The waivers described in para- tion 165(b) of the Act’’ and adding in its place
graphs (b) and (c) of this section may ‘‘49 U.S.C. 5323(j)(2)’’; amending paragraph (f)
be granted for a specific item or mate- by removing ‘‘section 165(b)(3) of the Act’’
and adding in its place ‘‘49 U.S.C.
rial that is used in the production of a
5323(j)(2)(C)’’; and amending Appendix A to
manufactured product that is governed § 661.7 by removing paragraphs (b) and (c) and
by the requirements of § 661.5(d) of this adding new paragraph (b), effective Oct. 22,
part. If such a waiver is granted to 2007. For the convenience of the user, the
such a specific item or material, that added and revised text is set forth as follows:
83
§ 661.9 49 CFR Ch. VI (10–1–07 Edition)
§ 661.7 Waivers. ers, except those general exceptions set
forth in this part for which individual
* * * * * applications are unnecessary and those
(b) Under the provision of 49 U.S.C. covered by section 165(b)(3) of the Act.
5323(j)(2)(A), the Administrator may waive The procedures for obtaining an excep-
the general requirements of 49 U.S.C. tion covered by section 165(b)(3) are set
5323(j)(1) if the Administrator finds that forth in § 661.11 of this part.
their application would be inconsistent with (b) A bidder or offeror who seeks to
the public interest. In determining whether establish grounds for an exception
the conditions exist to grant this public in-
terest waiver, the Administrator will con-
must seek the exception, in a timely
sider all appropriate factors on a case-by- manner, through the grantee.
case basis, unless a general exception is spe- (c) Except as provided in paragraph
cifically set out in this part. When granting (d) of this section, only a grantee may
a public interest waiver, the Administrator request a waiver. The request must be
shall issue a detailed written statement jus- in writing, include facts and justifica-
tifying why the waiver is in the public inter-
est. The Administrator shall publish this jus-
tion to support the waiver, and be sub-
tification in the FEDERAL REGISTER, pro- mitted to the Administrator through
viding the public with a reasonable time for the appropriate Regional Office.
notice and comment of not more than seven (d) FTA will consider a request for a
calendar days. waiver from a potential bidder, offeror,
(c) * * * or supplier only if the waiver is being
(3) After contract award, the Adminis-
sought under § 661.7 (f) or (g) of this
trator may grant a non-availability waiver
under this paragraph, in any case in which a part.
bidder or offeror originally certified compli- (e) The Administrator will issue a
ance with the Buy America requirements in written determination setting forth
good faith, but can no longer comply with its the reasons for granting or denying the
certification. The Administrator will grant a exception request. Each request for an
non-availability waiver only if the grantee
exception, and FTA’s action on the re-
provides sufficient evidence that the original
certification was made in good faith and that quest, are available for public inspec-
the item to be procured cannot now be ob- tion under the provisions of 49 CFR
tained domestically due to commercial im- part 601, subpart C.
possibility or impracticability. In deter-
mining whether the conditions exist to grant [56 FR 932, Jan. 9, 1991, as amended at 71 FR
a post-award non-availability waiver, the 14117, Mar. 21, 2006]
Administrator will consider all appropriate EFFECTIVE DATE NOTE: At 72 FR 53697,
factors on a case-by-case basis. Sept. 20, 2007, § 661.9 was amended by remov-
ing ‘‘section 165(b)(3) of the Act’’ and ‘‘sec-
* * * * * tion 165(b)(3)’’ and adding in their place ‘‘49
U.S.C. 5323(j)(2)(C)’’, effective Oct. 22, 2007.
APPENDIX A TO § 661.7—GENERAL WAIVERS
§ 661.11 Rolling stock procurements.
* * * * * (a) The provisions of § 661.5 do not
(b) Under the provisions of § 661.7 (b) and (c) apply to the procurement of buses and
of this part, a general public interest waiver other rolling stock (including train
from the Buy America requirements applies control, communication, and traction
to microprocessors, computers, micro- power equipment), if the cost of compo-
computers, or software, or other such de- nents produced in the United States is
vices, which are used solely for the purpose
of processing or storing data. This general more than 60 percent of the cost of all
waiver does not extend to a product or device components and final assembly takes
which merely contains a microprocessor or place in the United States.
microcomputer and is not used solely for the (b) The domestic content require-
purpose of processing or storing data. ments in paragraph (a) of this section
also apply to the domestic content re-
* * * * * quirements for components set forth in
paragraphs (i), (j), and (l) of this sec-
§ 661.9 Application for waivers. tion.
(a) This section sets out the applica- (c) A component is any article, mate-
tion procedures for obtaining all waiv- rial, or supply, whether manufactured
84
or unmanufactured, that is directly in- procedures set forth in 19 CFR 10.11

corporated into an end product at the through 10.24, the subcomponent loses
final assembly location. its domestic identity and cannot be in-
(d) A component may be manufac- cluded in the calculation of the domes-
tured at the final assembly location if tic content of an end product.
the manufacturing process to produce (k) Raw materials produced in the
the component is an activity separate United States and then exported for in-
and distinct from the final assembly of corporation into a component are not
the end product. considered to be a subcomponent for
(e) A component is considered to be the purpose of calculating domestic
manufactured if there are sufficient ac-
content. The value of such raw mate-
tivities taking place to advance the
rials is to be included in the cost of the
value or improve the condition of the
subcomponents of that component; foreign component.
that is, if the subcomponents have been (l) If a component is manufactured in
substantially transformed or merged the United States, but contains less
into a new and functionally different than 60 percent domestic subcompo-
article. nents, by cost, the cost of the domestic
(f) Except as provided in paragraph subcomponents and the cost of manu-
(k) of this section, a subcomponent is facturing the component may be in-
any article, material, or supply, wheth- cluded in the calculation of the domes-
er manufactured or unmanufactured, tic content of the end product.
that is one step removed from a compo- (m) For purposes of this section, ex-
nent (as defined in paragraph (c) of this cept as provided in paragraph (o) of
section) in the manufacturing process this section:
and that is incorporated directly into a (1) The cost of a component or a sub-
component. component is the price that a bidder or
(g) For a component to be of domes- offeror must pay to a subcontractor or
tic origin, more that 60 percent of the supplier for that component or sub-
subcomponents of that component, by component. Transportation costs to
cost, must be of domestic origin, and
the final assembly location must be in-
the manufacture of the component
cluded in calculating the cost of for-
must take place in the United States.
If, under the terms of this part, a com- eign components and subcomponents.
ponent is determined to be of domestic (2) If a component or subcomponent
origin, its entire cost may be used in is manufactured by the bidder or offer-
calculating the cost of domestic con- or, the cost of the component is the
tent of an end product. cost of labor and materials incor-
(h) A subcomponent is of domestic porated into the component or sub-
origin if it is manufactured in the component, an allowance for profit,
United States. and the administrative and overhead
(i) If a subcomponent manufactured costs attributable to that component
in the United States is exported for in- or subcomponent under normal ac-
clusion in a component that is manu- counting principles.
factured outside the United States and (n) The cost of a component of for-
it receives tariff exemptions under the eign origin is set using the foreign ex-
procedures set forth in 19 CFR 10.11 change rate at the time the bidder or
through 10.24, the subcomponent re- offeror executes the appropriate Buy
tains its domestic identity and can be America certificate.
included in the calculation of the do- (o) The cost of a subcomponent that
mestic content of an end product even retains its domestic identity consistent
if such a subcomponent represents less
with paragraph (j) of this section shall
than 60 percent of the cost of a par-
be the cost of the subcomponent when
ticular component.
(j) If a subcomponent manufactured last purchased, f.o.b. United States
in the United States is exported for in- port of exportation or point of border
clusion in a component manufactured crossing as set out in the invoice and
outside the United States and it does entry papers or, if no purchase was
not receive tariff exemption under the made, the value of the subcomponent
85
§ 661.11 49 CFR Ch. VI (10–1–07 Edition)
at the time of its shipment for expor- (12) Uninterruptible power supply
tation, f.o.b. United States port of ex- batteries
portation or point of border crossing as (13) Data transmission system cen-
set out in the invoice and entry papers. tral processors
(p) In accordance with 49 U.S.C. (14) Data transmission system re-
5323(j), labor costs involved in final as- mote terminals
sembly shall not be included in calcu- (15) Line printers for data trans-
lating component costs. mission system
(q) The actual cost, not the bid price, (16) Communication system monitor
of a component is to be considered in test panel
calculating domestic content. (17) Security console at central con-
(r) Final assembly is the creation of trol
the end product from individual ele- (v) Traction power equipment in-
ments brought together for that pur- cludes, but is not limited to the fol-
pose through application of manufac- lowing:
turing processes. If a system is being (1) Primary AC switch gear
procured as the end product by the (2) Primary AC transformer rectifiers
grantee, the installation of the system (3) DC switch gear
qualifies as final assembly. (4) Traction power console and CRT
(s) An end product means any item display system at central control
subject to 49 U.S.C. 5323(j) that is to be (5) Bus ducts with buses (AC and DC)
acquired by a grantee, as specified in (6) Batteries
the overall project contract. (7) Traction power rectifier assem-
(t) Train control equipment includes, blies
but is not limited to, the following (8) Distribution panels (AC and DC)
equipment: (9) Facility step-down transformers
(1) Mimic board in central control (10) Motor control centers (facility
(2) Dispatcher’s console use only)
(3) Local control panels (11) Battery chargers
(4) Station (way side) block control (12) Supervisory control panel
relay cabinets (13) Annunciator panels
(5) Terminal dispatcher machines (14) Low voltage facility distribution
(6) Cable/cable trays switch board
(7) Switch machines (15) DC connect switches
(8) Way side signals (16) Negative bus boxes
(9) Impedance bonds (17) Power rail insulators
(10) Relay rack bungalows (18) Power cables (AC and DC)
(11) Central computer control (19) Cable trays
(12) Brake equipment (20) Instrumentation for traction
(13) Brake systems power equipment
(u) Communication equipment in- (21) Connectors, tensioners, and
cludes, but is not limited to, the fol- insulators for overhead power wire sys-
lowing equipment: tems
(1) Radios (22) Negative drainage boards
(2) Space station transmitter and re- (23) Inverters
ceivers (24) Traction motors
(3) Vehicular and hand-held radios (25) Propulsion gear boxes
(4) PABX telephone switching equip- (26) Third rail pick-up equipment
ment (27) Pantographs
(5) PABX telephone instruments (w) The power or third rail is not
(6) Public address amplifiers considered traction power equipment
(7) Public address speakers and is thus subject to the requirements
(8) Cable transmission system cable of 49 U.S.C. 5323(j) and the require-
(9) Cable transmission system multi- ments of § 661.5.
plex equipment (x) A bidder on a contract for an item
(10) Communication console at cen- covered by 49 U.S.C. 5323(j) who will
tral control comply with section 165(b)(3) and regu-
(11) Uninterruptible power supply in- lations in this section is not required
verters/rectifiers to follow the application for waiver
86
Federal Transit Admin., DOT § 661.11, Nt.
procedures set out in § 661.9. In lieu of ing and reserving paragraph (s); adding para-
these procedures, the bidder must sub- graphs (t)(14) through (t)(22), (u)(18) through
mit the appropriate certificate re- (u)(30), and (v)(28) through (30); amending Ap-
pendix B by adding ‘‘Car body shells’’ before
quired by § 661.12. ‘‘Engines’’; amending Appendix C by adding
APPENDIX A TO § 661.11—GENERAL WAIVERS ‘‘engines’’ after ‘‘Car shells’’ and removing
‘‘doors, door actuators, and controls,’’ and
(a) The provisions of § 661.11 of this part do adding in its place ‘‘doors, door actuators
not apply when foreign sourced spare parts and controls, wheelchair lifts and ramps to
for buses and other rolling stock (including make the vehicle accessible to persons with
train control, communication, and traction disabilities,’’; and adding a new Appendix D,
power equipment) whose total cost is 10 per- effective Oct. 22, 2007. For the convenience of
cent or less of the overall project contract the user, the added and revised text is set
cost are being procured as part of the same forth as follows:
contract for the major capital item.
(b) [Reserved] § 661.11 Rolling stock procurements.
APPENDIX B TO § 661.11—TYPICAL COMPONENTS

OF BUSES
* * * * *
The following is a list of items that typi- (t) * * *
(14) Cab Signaling;
cally would be considered components of a
(15) ATO Equipment;
bus. This list is not all-inclusive.
(16) ATP Equipment;
Engines, transmissions, front axle assem-
(17) Wayside Transponders;
blies, rear axle assemblies, drive shaft as-
(18) Trip Stop Equipment;
semblies, front suspension assemblies, rear (19) Wayside Magnets;
suspension assemblies, air compressor and (20) Speed Measuring Devices;
pneumatic systems, generator/alternator and (21) Car Axle Counters;
electrical systems, steering system assem- (22) Communication Based Train Control
blies, front and rear air brake assemblies, air (CBTC).
conditioning compressor assemblies, air con- (u) * * *
ditioning evaporator/condenser assemblies, (18) Antennas;
heating systems. passenger seats, driver’s (19) Wireless Telemetry Equipment;
seat assemblies, window assemblies, en- (20) Passenger Information Displays;
trance and exit door assemblies, door control (21) Communications Control Units;
systems, destination sign assemblies, inte- (22) Communication Control Heads;
rior lighting assemblies, front and rear end (23) Wireless Intercar Transceivers;
cap assemblies, front and rear bumper as- (24) Multiplexers;
semblies, specialty steel (structural steel (25) SCADA Systems;
tubing, etc.) aluminum extrusions, alu- (26) LED Arrays;
minum, steel or fiberglass exterior panels, (27) Screen Displays such as LEDs and
and interior trim, flooring, and floor cov- LCDs for communication systems;
erings. (28) Fiber-optic transmission equipment;
(29) Fiber-optic transmission equipment;
APPENDIX C TO § 661.11—TYPICAL COMPONENTS (30) Frame or cell based multiplexing
OF RAIL ROLLING STOCK equipment; 13) Communication system net-
The following is a list of items that typi- work elements.
cally would be considered components of rail (v) * * *
rolling stock. This list is not all inclusive. (28) Propulsion Control Systems;
(29) Surge Arrestors;
Car shells, main transformer, pantographs, (30) Protective Relaying.
traction motors, propulsion gear boxes, inte-
rior linings, acceleration and braking resis-
tors, propulsion controls, low voltage auxil- * * * * *
iary power supplies, air conditioning equip-
ment, air brake compressors, brake controls, APPENDIX D TO § 661.11—MINIMUM
foundation brake equipment, articulation as- REQUIREMENTS FOR FINAL ASSEMBLY
semblies, train control systems, window as- (a) Rail Cars: In the case of the manufac-
semblies, communication equipment, light- ture of a new, remanufactured, or overhauled
ing, seating, doors, door actuators, and con- rail car, final assembly would typically in-
trols, couplers and draft gear, trucks, jour- clude, as a minimum, installation and inter-
nal bearings, axles, diagnostic equipment, connection of the typical Rail Car Compo-
and third rail pick-up equipment. nents listed in § 661.11, Appendix C, including
but not limited to the following items: car
[61 FR 6302, Feb. 16, 1996, as amended at 62
bodies or shells, chassis, carbody wiring, car-
FR 40954, July 31, 1997]
borne power plants or power pick-up equip-
EFFECTIVE DATE NOTES: 1. At 72 FR 53697, ment, energy management and storage de-
Sept. 20, 2007, § 661.11 was amended by remov- vices, articulation equipment, propulsion
87
§ 661.12 49 CFR Ch. VI (10–1–07 Edition)
control equipment, propulsion cooling equip- APPENDIX D TO § 661.11—MINIMUM
ment, friction brake equipment, energy REQUIREMENTS FOR FINAL ASSEMBLY
sources for auxiliary equipment and con-
trols, heating and air conditioning equip- (a) Rail Cars: In the case of the manufac-
ment, interior and exterior lighting equip- ture of a new rail car, final assembly would
ment, coupler equipment and coupler control typically include, as a minimum, the fol-
system, communications equipment, pneu- lowing operations: installation and inter-
matic systems, electrical systems, door and connection of propulsion control equipment,
door control systems, passenger seats, pas- propulsion cooling equipment, brake equip-
senger interiors, cab interiors, destination ment, energy sources for auxiliaries and con-
signs, wheelchair lifts (or other equipment trols, heating and air conditioning, commu-
required to make the vehicle accessible to nications equipment, motors, wheels and
persons with disabilities), motors, wheels, axles, suspensions and frames; the inspection
axles, gear boxes or integrated motor/gear and verification of all installation and inter-
units, suspensions, and truck frames. Final connection work; and the in-plant testing of
Assembly activities shall also include the in- the stationary product to verify all func-
spection and verification of all installation tions.
and interconnection work; and the in-plant (b) Buses: In the case of a new bus, final as-
testing of the rail car to verify all functions. sembly would typically include, at a min-
In the case of articulated vehicles, the inter- imum, the installation and interconnection
connection of the car bodies or shells shall of the engine, transmission, axles, including
be included as work to be performed by the the cooling and braking systems; the instal-
manufacturer as part of vehicle delivery. lation and interconnection of the heating
(b) Buses: In the case of a new, remanufac- and air conditioning equipment; the installa-
tured, or overhauled bus, final assembly tion of pneumatic and electrical systems,
would typically include, at a minimum, the door systems, passenger seats, passenger
installation and interconnection of the typ- grab rails, destination signs, wheelchair
ical Bus Components listed in § 661.11, Appen- lifts; and road testing, final inspection, re-
dix B, including but not limited to the fol- pairs and preparation of the vehicles for de-
lowing items: car bodies or shells, the engine livery.
and transmission (drive train), axles, energy
management and storage devices, articula-
* * * * *
tion equipment, propulsion control system,
chassis, and wheels, cooling system, and
§ 661.12 Certification requirement for
braking systems; the installation and inter-
procurement of buses, other rolling
connection of the heating and air condi-
stock and associated equipment.
tioning equipment; the installation of pneu-
matic system and the electrical system, door If buses or other rolling stock (in-
systems, passenger seats, passenger grab cluding train control, communication,
rails, destination signs, wheelchair lifts or and traction power equipment) are
ramps and other equipment required to make being procured, the appropriate certifi-
the vehicle accessible to persons with dis-
cate as set forth below shall be com-
abilities, and road testing. Final Assembly
activities shall also include final inspection, pleted and submitted by each bidder in
repairs and preparation of the vehicles for accordance with the requirement con-
delivery. In the case of articulated vehicles, tained in § 661.13(b) of this part.
the interconnection of the car bodies or
shells shall be included as work to be per- Certificate of Compliance With Section
formed by the manufacturer as part of vehi- 165(b)(3)
cle delivery.
(c) If a manufacturer’s final assembly proc- The bidder or offeror hereby certifies
esses do not include all the activities that that it will comply with the require-
are typically considered the minimum re- ments of section 165(b)(3), of the Sur-
quirements, it can request a Federal Transit face Transportation Assistance Act of
Administration (FTA) determination of com- 1982, as amended, and the applicable
pliance. FTA will review these requests on a regulations of 49 CFR 661.11.
case-by-case basis to determine compliance
with Buy America. Date lllllllllllllllllllll
2. At 72 FR 55103, Sept. 28, 2007, Appendix D Signature llllllllllllllllll
to § 661.11 was amended by correcting para- Company llllllllllllllllll
graphs (a) and (b), effective Oct. 22, 2007. For Name llllllllllllllllllll
the convenience of the user, the revised text Title lllllllllllllllllllll
is set forth as follows:
88
Certificate for Non-Compliance with of certificates of both compliance and

Section 165(b)(3) non-compliance, or failure to submit
any certification), may submit to the
The bidder or offeror hereby certifies FTA Chief Counsel within ten (10) days
that it cannot comply with the require- of bid opening of submission or a final
ments of section 165(b)(3) of the Surface offer, a written explanation of the cir-
Transportation Assistance Act of 1982, cumstances surrounding the submis-
as amended, but may qualify for an ex- sion of the incomplete or incorrect cer-
ception to the requirement consistent tification in accordance with 28 U.S.C.
with section 165(b)(2) or (b)(4) of the 1746, sworn under penalty of perjury,
Surface Transportation Assistance Act, stating that the submission resulted
as amended, and the applicable regula- from inadvertent or clerical error. The
tions in 49 CFR 661.7. bidder or offeror will also submit evi-
Date lllllllllllllllllllll dence of intent, such as information
Signature llllllllllllllllll about the origin of the product, in-
Company llllllllllllllllll voices, or other working documents.
Name llllllllllllllllllll The bidder or offeror will simulta-
Title lllllllllllllllllllll
neously send a copy of this information
[71 FR 14117, Mar. 21, 2006] to the FTA grantee.
EFFECTIVE DATE NOTE: At 72 FR 53698, (i) The FTA Chief Counsel may re-
Sept. 20, 2007, § 661.12 was amended by remov- quest additional information from the
ing ‘‘Certificate of Compliance With Section bidder or offeror, if necessary. The
165(b)(3)’’ and adding in its place ‘‘Certificate grantee may not make a contract
of Compliance with Buy America Rolling award until the FTA Chief Counsel
Stock Requirements’’ and removing ‘‘section issues his/her determination, except as
165(b)(3) of the Surface Transportation As-
provided in § 661.15(m).
sistance Act of 1982, as amended’’ and adding
in its place ‘‘49 U.S.C. 5323(j)’’ and removing (ii) [Reserved]
‘‘Certificate for Non-Compliance with Sec- (2) For negotiated procurements,
tion 165(b)(3)’’ and adding in its place ‘‘Cer- compliance with the Buy America re-
tificate of Non-Compliance with Buy Amer- quirements shall be determined on the
ica Rolling Stock Requirements’’; removing basis of the certification submitted
‘‘section 165(b)(3) of the Surface Transpor- with the final offer or final revised pro-
tation Assistance Act of 1982, as amended’’ posal. However, where a grantee
and adding in its place ‘‘49 U.S.C. 5323(j)’’;
awards on the basis of initial proposals
and removing ‘‘section 165(b)(2) or (b)(4) of
the Surface Transportation Assistance Act without discussion, the certification
of 1982’’ and adding in its place ‘‘49 U.S.C. submitted with the initial proposal
5323(j)(2)(C)’’, effective Oct. 22, 2007. shall control.
(3) Certification based on ignorance
§ 661.13 Grantee responsibility. of the proper application of the Buy
(a) The grantee shall adhere to the America requirements is not an inad-
Buy America clause set forth in its vertent or clerical error.
grant contract with FTA. (c) Whether or not a bidder or offeror
(b) The grantee shall include in its certifies that it will comply with the
bid or request for proposal (RFP) speci- applicable requirement, such bidder or
fication for procurement within the offeror is bound by its original certifi-
scope of this part an appropriate notice cation (in the case of a sealed bidding
of the Buy America provision. Such procurement) or its certification sub-
specifications shall require, as a condi- mitted with its final offer (in the case
tion of responsiveness, that the bidder of a negotiated procurement) and is not
or offeror submit with the bid or offer permitted to change its certification
a completed Buy America certificate in after bid opening or submission of a
accordance with §§ 661.6 or 661.12 of this final offer. Where a bidder or offeror
part, as appropriate. certifies that it will comply with the
(1) A bidder or offeror who has sub- applicable Buy America requirements,
mitted an incomplete Buy America the bidder, offeror, or grantee is not el-
certificate or an incorrect certificate igible for a waiver of those require-
of noncompliance through inadvertent ments.
or clerical error (but not including fail- [56 FR 932, Jan. 9, 1991, as amended at 68 FR
ure to sign the certificate, submission 9799, Feb. 28, 2003; 71 FR 14117, Mar. 21, 2006]
89
§ 661.15 49 CFR Ch. VI (10–1–07 Edition)
§ 661.15 Investigation procedures. the receipt of such request unless spe-

cifically exempted by FTA.
(a) It is presumed that a bidder or of-
(g) The grantee’s reply (or that of the
feror who has submitted the required
bidder or offeror) will be transmitted
Buy America certificate is complying
with the Buy America provision. A to the petitioner. The petitioner may
false certification is a criminal act in submit comments on the reply to FTA
violation of 18 U.S.C. 1001. within 10 working days after receipt of
the reply. The grantee and the low bid-
(b) Any party may petition FTA to
der or offeror will be furnished with a
investigate the compliance of a suc-
copy of the petitioner’s comments, and
cessful bidder or offeror with the bid-
their comments must be received by
der’s or offeror’s certification. That
FTA within 5 working days after re-
party (‘‘the petitioner’’) must include
in the petition a statement of the ceipt of the petitioner’s comments.
grounds of the petition and any sup- (h) The failure of a party to comply
porting documentation. If FTA deter- with the time limits stated in this sec-
mines that the information presented tion may result in resolution of the in-
in the petition indicates that the pre- vestigation without consideration of
sumption in paragraph (a) of this sec- untimely filed comments.
tion has been overcome, FTA will ini- (i) During the course of an investiga-
tiate an investigation. tion, with appropriate notification to
(c) In appropriate circumstances, affected parties, FTA may conduct site
FTA may determine on its own to ini- visits of manufacturing facilities and
tiate an investigation without receiv- final assembly locations as it considers
ing a petition from a third party. appropriate.
(d) When FTA determines under para- (j) FTA will, upon request, make
graph (b) or (c) of this section to con- available to any interested party infor-
duct an investigation, it requests that mation bearing on the substance of the
the grantee require the successful bid- investigation which has been sub-
der or offeror to document its compli- mitted by the petitioner, interested
ance with its Buy America certificate. parties or grantees, except to the ex-
The successful bidder or offeror has the tent that withholding of information is
burden of proof to establish that it is permitted or required by law or regula-
in compliance. Documentation of com- tion.
pliance is based on the specific cir- (k) If a party submitting information
cumstances of each investigation, and considers that the information sub-
FTA will specify the documentation re- mitted contains proprietary material
quired in each case. which should be withheld, a statement
(e) The grantee shall reply to the re- advising FTA of this fact may be in-
quest under paragraph (d) of this sec- cluded, and the alleged proprietary in-
tion within 15 working days of the re- formation must be identified wherever
quest. The investigated party may cor- it appears. Any comments on the infor-
respond directly with FTA during the mation provided shall be submitted
course of investigation, if it informs within a maximum of ten days.
the grantee that it intends to do so, (l) For purposes of paragraph (j) of
and if the grantee agrees to such action this section, confidential or propri-
in writing. The grantee must inform etary material is any material or data
FTA, in writing, that the investigated whose disclosure could reasonably be
party will respond directly to FTA. An expected to cause substantial competi-
investigated party may provide con- tive harm to the party claiming that
fidential or proprietary information the material is confidential or propri-
(see paragraph (l) of this section) di- etary.
rectly to FTA while providing other in- (m) When a petition for investigation
formation required to be submitted as has been filed before award, the grant-
part of the investigation through the ee will not make an award before the
grantee. resolution of the investigation, unless
(f) Any additional information re- the grantee determines that:
quested or required by FTA must be (1) The items to be procured are ur-
submitted within 5 working days after gently required;
90
(2) Delivery of performance will be of 1991 pursuant to part 29 of this title

unduly delayed by failure to make the if it has been determined by a court or
award promptly; or Federal agency that the person inten-
(3) Failure to make prompt award tionally—
will otherwise cause undue harm to the (a) Affixed a label bearing a ‘‘Made in
grantee or the Federal Government. America’’ inscription, or an inscription
(n) In the event that the grantee de- with the same meaning, to a product
termines that the award is to be made not made in the United States, but sold
during the pendency of an investiga- in or shipped to the United States and
tion, the grantee will notify FTA be- used in projects to which this section
fore to making such award. FTA re- applies, or
serves the right not to participate in (b) Otherwise represented that any
the funding of any contract awarded such product was produced in the
during the pendency of an investiga- United States.
tion. [61 FR 6303, Feb. 16, 1996]
(o) Initial decisions by FTA will be in
written form. Reconsideration of an EFFECTIVE DATE NOTE: At 72 FR 53698,
Sept. 20, 2007, § 661.18 the introductory text
initial decision of FTA may be re- was amended by removing ‘‘the Intermodal
quested by any party involved in an in- Surface Transportation Efficiency Act of
vestigation. FTA will only reconsider a 1991’’ and adding in its place ‘‘the Federal
decision only if the party requesting Public Transportation Act of 2005’’, effective
reconsideration submits new matters Oct. 22, 2007.
of fact or points of law that were not
known or available to the party during § 661.19 Sanctions.
the investigation. A request for recon- A willful refusal to comply with a
sideration of a decision of FTA shall be certification by a successful bidder or
filed not later than ten (10) working offeror may lead to the initiation of de-
days after the initial written decision. barment or suspension proceedings
A request for reconsideration will be under part 29 of this title.
subject to the procedures in this sec- [71 FR 14118, Mar. 21, 2006]
tion consistent with the need for
prompt resolution of the matter. § 661.20 Rights of parties.
[56 FR 932, Jan. 9, 1991, as amended at 71 FR (a) A party adversely affected by an
14118, Mar. 21, 2006] FTA action under this subsection shall
have the right to seek review under the
§ 661.17 Failure to comply with certifi- Administrative Procedure Act (APA), 5
cation.
U.S.C. 702 et seq.
If a successful bidder or offeror fails (b) Except as provided in paragraph
to demonstrate that it is in compliance (a) of this section, the sole right of any
with its certification, it will be re- third party under the Buy America
quired to take the necessary steps in provision is to petition FTA under the
order to achieve compliance. If a bidder provisions of § 661.15 of this part. No
or offeror takes these necessary steps, third party has any additional right, at
it will not be allowed to change its law or equity, for any remedy includ-
original bid price or the price of its ing, but not limited to, injunctions,
final offer. If a bidder or offeror does damages, or cancellation of the Federal
not take the necessary steps, it will grant or contracts of the grantee.
not be awarded the contract if the con-
[71 FR 14118, Mar. 21, 2006]
tract has not yet been awarded, and it
is in breach of contract if a contract § 661.21 State Buy America provisions.
has been awarded.
(a) Except as provided in paragraph
[71 FR 14118, Mar. 21, 2006] (b) of this section, any State may im-
pose more stringent Buy America or
§ 661.18 Intentional violations. buy national requirements than con-
A person shall be ineligible to receive tained in section 165 of the Act and the
any contract or subcontract made with regulations in this part.
funds authorized under the Intermodal (b) FTA will not participate in con-
Surface Transportation Efficiency Act tracts governed by the following:
91
(1) State Buy America or Buy Na- Subpart A—General

tional preference provisions which are
not as strict as the Federal require- § 663.1 Purpose.
ments. This part implements section 12(j) of
(2) State and local Buy National or the Federal Mass Transit Act of 1964,
Buy America preference provisions as amended, which was added by sec-
which are not explicitly set out under tion 319 of the 1987 Surface Transpor-
State law. For example, administrative tation and Uniform Relocation Assist-
interpretations of non-specific State ance Act (Pub. L. 100–17). Section 12(j)
legislation will not control. requires the Federal Transit Adminis-
(3) State and local Buy Local pref- tration, by delegation from the Sec-
erence provisions. retary of Transportation, to issue regu-
lations requiring pre-award and post-
PART 663—PRE-AWARD AND POST- delivery audits when a recipient of
DELIVERY AUDITS OF ROLLING Federal financial assistance purchases
STOCK PURCHASES rolling stock with funds made avail-
able under the Federal Mass Transit
Subpart A—General Act, as amended.
Sec. § 663.3 Scope.

663.1 Purpose. This part applies to a recipient pur-
663.3 Scope. chasing rolling stock to carry pas-
663.5 Definitions. sengers in revenue service with funds
663.7 Certification of compliance to FTA. made available under sections 3, 9, 18,
663.9 Audit limitations.
and 16(b)(2) of the Federal Mass Transit
663.11 Audit financing.
Act, as amended; 23 U.S.C. 103(e)(4); and
663.13 Buy America requirements.
section 14 of the National Capital
663.15 Compliance.
Transportation Act of 1969, as amend-
Subpart B—Pre-Award Audits ed.
663.21 Pre-award audit requirements. § 663.5 Definitions.

663.23 Description of pre-award audit. As used in this part—
663.25 Pre-award Buy America certification. (a) Pre-award means that period in
663.27 Pre-award purchaser’s requirements the procurement process before the re-
certification.
cipient enters into a formal contract
Subpart C—Post-Delivery Audits with the supplier.
(b) Post-delivery means the time pe-
663.31 Post-delivery audit requirements. riod in the procurement process from
663.33 Description of post-delivery audit. when the rolling stock is delivered to
663.35 Post-delivery Buy America certifi- the recipient until title to the rolling
cation. stock is transferred to the recipient or
663.37 Post-delivery purchaser’s require- the rolling stock is put into revenue
ments certification. service, whichever is first.
663.39 Post-delivery audit review.
(c) Recipient means a recipient of
Subpart D—Certification of Compliance Federal financial assistance from FTA.
With or Inapplicability of Federal Motor (d) Revenue service means operation of
Vehicle Safety Standards rolling stock for transportation of fare-
paying passengers as anticipated by
663.41 Certification of compliance with Fed- the recipient.
eral motor vehicle safety standards. (e) Rolling stock means buses, vans,
663.43 Certification that Federal motor ve- cars, railcars, locomotives, trolley cars
hicle standards do not apply. and buses, ferry boats, and vehicles
AUTHORITY: 49 U.S.C. 1608(j); 23 U.S.C. used for guideways and incline planes.
103(e)(f); Pub. L. 96–184, 93 Stat. 1320; Pub. L. (f) Audit means a review resulting in
101–551, 104 Stat. 2733; sec. 3023(m), Pub. L. a report containing the necessary cer-
109–59; 49 CFR 1.51. tifications of compliance with Buy
SOURCE: 56 FR 48395, Sept. 24, 1991, unless America standards, purchaser’s re-
otherwise noted. quirements specifications, and, where
92
appropriate, a manufacturer’s certifi- § 663.15 Compliance.

cation of compliance with or inapplica- A recipient subject to this part shall
bility of the Federal Motor Vehicle comply with all applicable require-
Safety Standards, required by section ments of this part. Such compliance is
319 of STURAA and this part. a condition of receiving Federal finan-
(g) FTA means the Federal Transit
cial assistance from FTA. A recipient
Administration. determined not to be in compliance
§ 663.7 Certification of compliance to with this part will be subject to the im-
FTA. mediate suspension, withholding, or re-
payment of Federal financial assist-
A recipient purchasing revenue serv- ance from FTA or other appropriate ac-
ice rolling stock with funds obligated tions unless and until it comes into
by FTA on or after October 24, 1991, compliance with this part.
must certify to FTA that it will con-
duct or cause to be conducted pre-
award and post-delivery audits as pre- Subpart B—Pre-Award Audits
scribed in this part. In addition, such a § 663.21 Pre-award audit require-
recipient must maintain on file the ments.
certifications required under subparts
A recipient purchasing revenue serv-
B, C, and D of this part.
ice rolling stock with FTA funds must
§ 663.9 Audit limitations. ensure that a pre-award audit under
this part is complete before the recipi-
(a) An audit under this part is lim- ent enters into a formal contract for
ited to verifying compliance with the purchase of such rolling stock.
(1) Applicable Buy America require-
ments [section 165 of the Surface § 663.23 Description of pre-award
Transportation Assistance Act of 1982, audit.
as amended,]; and A pre-award audit under this part in-
(2) Solicitation specification require- cludes—
ments of the recipient. (a) A Buy America certification as
(b) An audit under this part includes, described in § 663.25 of this part;
where appropriate, a copy of a manu- (b) A purchaser’s requirements cer-
facturer’s self certification informa- tification as described in § 663.27 of this
tion that the vehicle complies with part; and
Federal Motor Vehicle Safety Stand- (c) Where appropriate, a manufactur-
ards or a certification that such stand- er’s Federal Motor Vehicle Safety cer-
ards are inapplicable. tification information as described in
(c) An audit conducted under this § 663.41 or § 663.43 of this part.
part is separate from the single annual
audit requirement established by Office § 663.25 Pre-award Buy America cer-
of Management and Budget Circular A– tification.
128, ‘‘Audits of State and Local Govern- For purposes of this part, a pre-award
ments,’’ dated May 16, 1985. Buy America certification is a certifi-
cation that the recipient keeps on file
§ 663.11 Audit financing.
that—
A recipient purchasing revenue roll- (a) There is a letter from FTA which
ing stock with FTA funds may charge grants a waiver to the rolling stock to
the cost of activities required by this be purchased from the Buy America re-
part to the grant which FTA made for quirements under section 165(b)(1),
such purchase. (b)(2), or (b)(4) of the Surface Transpor-
tation Assistance Act of 1982, as
§ 663.13 Buy America requirements. amended; or
A Buy America certification under (b) The recipient is satisfied that the
this part shall be issued in addition to rolling stock to be purchased meets the
any certification which may be re- requirements of section 165(a) or (b)(3)
quired by part 661 of this title. Nothing of the Surface Transportation Assist-
in this part precludes FTA from con- ance Act of 1982, as amended, after hav-
ducting a Buy America investigation ing reviewed itself or through an audit
under part 661 of this title. prepared by someone other than the
93
§ 663.27 49 CFR Ch. VI (10–1–07 Edition)
manufacturer or its agent documenta- § 663.35 Post-delivery Buy America

tion provided by the manufacturer certification.
which lists— For purposes of this part, a post-de-
(1) Component and subcomponent livery Buy America certification is a
parts of the rolling stock to be pur- certification that the recipient keeps
chased identified by manufacturer of on file that—
the parts, their country of origin and (a) There is a letter from FTA which
costs; and grants a waiver to the rolling stock re-
(2) The location of the final assembly ceived from the Buy America require-
point for the rolling stock, including a ments under sections 165 (b)(1), or (b)(4)
description of the activities that will of the Surface Transportation Assist-
take place at the final assembly point ance Act of 1982, as amended; or
(b) The recipient is satisfied that the
and the cost of final assembly.
rolling stock received meets the re-
§ 663.27 Pre-award purchaser’s requirements of section 165 (a) or (b)(3) of
quirements certification. the Surface Transportation Assistance
Act of 1982, as amended, after having
For purposes of this part, a pre-award reviewed itself or by means of an audit
purchaser’s requirements certification prepared by someone other than the
is a certification a recipient keeps on manufacturer or its agent documenta-
file that— tion provided by the manufacturer
(a) The rolling stock the recipient is which lists—
contracting for is the same product de- (1) Components and subcomponent
scribed in the purchaser’s solicitation parts of the rolling stock identified by
specification; and manufacturer of the parts, their coun-
(b) The proposed manufacturer is a try of origin and costs; and
responsible manufacturer with the ca- (2) The actual location of the final
pability to produce a vehicle that assembly point for the rolling stock in-
meets the recipient’s specification set cluding a description of the activities
forth in the recipient’s solicitation. which took place at the final assembly
point and the cost of the final assem-
bly.
Subpart C—Post-Delivery Audits
§ 663.37 Post-delivery purchaser’s re-
§ 663.31 Post-delivery audit require- quirements certification.
ments.
For purposes of this part, a post-de-
A recipient purchasing revenue serv- livery purchaser’s requirements certifi-
ice rolling stock with FTA funds must cation is a certification that the recipi-
ensure that a post-delivery audit under ent keeps on file that—
this part is complete before title to the (a) Except for procurements covered
rolling stock is transferred to the re- under paragraph (c) in this section, a
cipient. resident inspector (other than an agent
or employee of the manufacturer) was
§ 663.33 Description of post-delivery at the manufacturing site throughout
audit. the period of manufacture of the roll-
A post-delivery audit under this part ing stock to be purchased and mon-
includes— itored and completed a report on the
manufacture of such rolling stock.
(a) A post-delivery Buy America cer-
Such a report, at a minimum, shall—
tification as described in § 663.35 of this
(1) Provide accurate records of all ve-
part; hicle construction activities; and
(b) A post-delivery purchaser’s re- (2) Address how the construction and
quirements certification as described operation of the vehicles fulfills the
in § 663.37 of this part; and contract specifications.
(c) When appropriate, a manufactur- (b) After reviewing the report re-
er’s Federal Motor Vehicle Safety quired under paragraph (a) of this sec-
Standard self-certification information tion, and visually inspecting and road
as described in § 663.41 or § 663.43 of this testing the delivered vehicles, the vehi-
part. cles meet the contract specifications.
94
(c) For procurements of: § 663.43 Certification that Federal

(1) Ten or fewer buses; or motor vehicle standards do not
(2) Procurements of twenty vehicles apply.
or fewer serving rural (other than ur- (a) Except for rolling stock subject to
banized) areas, or urbanized areas of paragraph (b) of this section, if a vehi-
200,000 people or fewer; or cle purchased under this part is not
(3) Any number of primary manufac- subject to the Federal Motor Vehicle
turer standard production and unmodi- Safety Standards issued by the Na-
fied vans, after visually inspecting and tional Highway Traffic Safety Admin-
road testing the vehicles, the vehicles istration in part 571 of this title, the
meet the contract specifications. recipient shall keep on file its certifi-
cation that it received a statement to
[56 FR 48395, Sept. 24, 1991, as amended at 71 that effect from the manufacturer.
FR 14118, Mar. 21, 2006] (b) This subpart shall not apply to
rolling stock that is not a motor vehi-
§ 663.39 Post-delivery audit review. cle.
(a) If a recipient cannot complete a
post-delivery audit because the recipi- PART 665—BUS TESTING
ent or its agent cannot certify Buy
America compliance or that the rolling Subpart A—General
stock meets the purchaser’s require- Sec.
ments specified in the contract, the 665.1 Purpose.
rolling stock may be rejected and final 665.3 Scope.
acceptance by the recipient will not be 665.5 Definitions.
required. The recipient may exercise 665.7 Grantee certification of compliance.
any legal rights it has under the con-
Subpart B—Bus Testing Procedures
tract or at law.
(b) This provision does not preclude 665.11 Testing requirements.
the recipient and manufacturer from 665.13 Test report and manufacturer certifi-
cation.
agreeing to a conditional acceptance of
rolling stock pending manufacturer’s Subpart C—Operations
correction of deviations within a rea-
sonable period of time. 665.21 Scheduling.
665.23 Fees.
665.25 Transportation of vehicle.
Subpart D—Certification of Com- 665.27 Procedures during testing.
pliance With or Inapplicability APPENDIX A TO PART 665—TESTS TO BE PER-
of Federal Motor Vehicle FORMED AT THE BUS TESTING FACILITY
Safety Standards AUTHORITY: Federal Transit Act of 1964, as

amended, 49 U.S.C. 1601 et seq., 1608(h); sec-
§ 663.41 Certification of compliance tion 317, Surface Transportation and Uni-
with Federal motor vehicle safety form Relocation Assistance Act of 1987; and
standards. 49 CFR 1.51.
If a vehicle purchased under this part SOURCE: 57 FR 33397, July 28, 1992, unless
otherwise noted.
is subject to the Federal Motor Vehicle
Safety Standards issued by the Na-
tional Highway Traffic Safety Admin- Subpart A—General
istration in part 571 of this title, a re-
§ 665.1 Purpose.
cipient shall keep on file its certifi-
cation that it received, both at the pre- An applicant for Federal financial as-
award and post-delivery stage, a copy sistance under the Federal Transit Act
of the manufacturer’s self-certification for the purchase or lease of buses with
information that the vehicle complies funds obligated by the FTA after Sep-
tember 30, 1989, must certify to the
with relevant Federal Motor Vehicle
FTA that any new bus model acquired
Safety Standards.
with such assistance has been tested in
accordance with this part. This part
contains the information necessary for
95
§ 665.3 49 CFR Ch. VI (10–1–07 Edition)
a recipient to ensure compliance with sistance Act of 1987, and includes prov-
this provision. ing ground facilities operated in con-
nection with the facility.
§ 665.3 Scope. FT Act means the Federal Transit
(a) This part applies to a recipient of Act, as amended (49 U.S.C. app. 1601 et
Federal financial assistance under sec- seq.).
tions 3, 9, 16(b)(2), or 18 of the FT Act, Major change in chassis design means,
and, except as provided in subsections for vehicles manufactured on a mass
(b), (c), and (d) is effective October 1, produced chassis, a change in frame
1989; structure, material or configuration, or
(b) The provisions of section a change in chassis suspension type.
665.11(e)(3) are effective November 8, Major change in components means:
1990; (1) For those vehicles that are not
(c) The provisions in sections 665.11 manufactured on a mass produced
(c), (d), and (f) concerning partial test- chassis, a change in a vehicle’s engine,
ing are effective August 27, 1992; and axle, transmission, suspension, or
(d) The provisions in §§ 665.11(e) (4) steering components;
and (5) concerning the last two cat-
(2) For those that are manufactured
egories of buses which must be tested,
on a mass produced chassis, a change
apply as follows:
in the vehicle’s chassis from one major
(1) For vehicles that are manufac-
design to another.
tured from modified mass-produced
chassis or vans, or manufactured from Major change in configuration means a
non-mass-produced chassis or vans, change which may have a significant
testing and a final report will be re- impact on vehicle handling and sta-
quired for all vehicles offered in re- bility, or structural integrity.
sponse to advertisements for bids or re- Mass produced van or chassis means a
quests for proposals issued on or after van or chassis that has or is projected
June 1, 1994. to have an annual production rate of
(2) For vehicles manufactured from 20,000 or more units.
unmodified mass-produced chassis, Mass transportation service means the
testing and a final report will be re- operation of a vehicle which provides
quired for all vehicles offered in re- general or special service to the public
sponse to advertisements for bids or re- on a regular and continuing basis.
quests for proposals issued on or after Modified mass-produced chassis or van
October 1, 1994. means a vehicle that is manufactured
from an incomplete, partially assem-
[57 FR 33397, July 28, 1992, as amended at 58
FR 10990, Feb. 23, 1993; 58 FR 58733, Nov. 3,
bled mass-produced chassis or van as
1993] provided by an OEM to a small bus
manufacturer. This includes vehicles
§ 665.5 Definitions. whose chassis structure has been modi-
As used in this part— fied to include: The addition of a tan-
Administrator means the Adminis- dem or tag axle; the installation of a
trator of the Federal Transit Adminis- drop or lowered floor; changes to the
tration or designee. GVWR from the OEM rating; or other
Bus means a rubber-tired automotive modifications that are not made in
vehicle used for the provision of mass strict conformance with the OEM’s
transportation service by or for a re- modifications guidelines.
cipient. New bus model means a bus model
Bus model means a bus design or vari- which—
ation of a bus design usually des- (1) Has not been used in mass transit
ignated by the manufacturer by a spe- service in the United States before Oc-
cific name and/or model number. tober 1, 1988; or
Bus testing facility means a testing fa- (2) Has been used in such service but
cility established by renovation of a fa- which after September 30, 1988, is being
cility constructed with Federal assist- produced with a major change in con-
ance at Altoona, Pennsylvania, under figuration or components.
section 317(b)(1) of the Surface Trans- Non-mass-produced chassis or van
portation and Uniform Relocation As- means a vehicle that is manufactured
96
from an incomplete, partially assem- § 665.7 Grantee certification of compli-

bled chassis or van as provided by an ance.
OEM to a secondary small bus manu- (a) In each application to the FTA for
facturer, and where the annual produc- the purchase or lease of buses, a recipi-
tion rate of the OEM chassis or van is ent shall certify that any new bus
less than 20,000 units. model, or any bus model with a major
Original Equipment Manufacturer change in configuration or compo-
(OEM) means the original manufac- nents, to be acquired or leased with
turer of a chassis or van supplied as a funds obligated by the FTA after Sep-
complete or incomplete vehicle to a tember 30, 1989, will be tested at the
small bus manufacturer. bus testing facility, and a test report
Partial testing means the performance provided before final acceptance of the
of those bus tests which may yield sig- first vehicle by the recipient.
nificantly different data from that ob- (b) It is the responsibility of the re-
tained in previous bus testing con- cipient in dealing with a manufacturer,
ducted at the bus testing facility. to determine whether a vehicle to be
Recipient means an entity which re- acquired is subject to these procedures.
ceives funds under sections 3, 9,
16(b)(2), or 18 of the FT Act, either di- Subpart B—Bus Testing Procedures
rectly from FTA or through a State ad-
ministering agency. § 665.11 Testing requirements.
Small bus manufacturer means a sec-
(a) A new bus model to be tested at
ondary market assembler that acquires
the bus testing facility shall—
a chassis or van from an original equip-
ment manufacturer for subsequent (1) Be a single model;
modification/assembly and sale as 5- (2) Meet all applicable Federal Motor
year/150,000-mile and/or 4-year/100,000- Vehicle Safety Standards, as defined by
mile minimum service life vehicles. the National Highway Traffic Safety
Administration in part 571 of this title;
Test report means the final document
prepared by the operator of the bus (3) Be substantially fabricated and
testing facility stating the results of assembled by techniques and tooling
that will be used in production of sub-
the tests performed on each bus.
sequent buses of that model.
Unmodified mass-produced chassis
(b) If the new bus model had not been
means a vehicle that is manufactured
previously tested at the bus testing fa-
from an incomplete, partially assem-
cility, then the new bus model shall
bled mass-produced chassis as provided
undergo the full tests requirements for
by an OEM to a small bus manufac-
maintainability, reliability, safety,
turer. This includes vehicles whose performance, structural integrity, fuel
chassis structure has either not been economy, and noise;
modified, or is modified in strict con-
(c) If the new bus model had not been
formance with the OEM’s modification
previously tested at the bus testing fa-
guidelines. The addition of a tandem or cility and is being produced on a mass
tag axle would exclude a bus model produced chassis that has been pre-
from this definition. viously tested on another bus model at
Unmodified mass-produced van means the bus testing facility, then the new
a vehicle that is mass-produced, com- bus model may undergo partial testing
plete and fully assembled as provided requirements;
by an OEM. This includes vans with (d) If the new bus model had been
raised roofs, and/or wheelchair lifts, or previously tested at the bus testing fa-
ramps that are installed by the OEM, cility, then the new bus model may un-
or by a party other than the OEM pro- dergo partial testing requirements.
vided that the installation of these (e) The following vehicle types shall
components is completed in strict con- be tested:
formance with the OEM modification (1) Minimum service life of 12 years
guidelines. or 500,000 miles—typified by heavy duty
[57 FR 33397, July 28, 1992, as amended at 58 large buses, approximately 35–40 foot,
FR 58733, Nov. 3, 1993] as well as articulated buses.
97
§ 665.13 49 CFR Ch. VI (10–1–07 Edition)
(2) Minimum service life of ten years ent’s procurement process. The oper-
or 350,000 miles—typified by heavy duty ator of the facility will have available
small buses, approximately 30 foot. for distribution copies of all the pub-
(3) Minimum service life of seven licly available reports.
years or 200,000 miles—typified by me- (e) The test report is the only infor-
dium duty mid-size buses, approxi- mation or documentation that will be
mately 25–35 foot. made available publicly in connection
(4) Minimum service life of five years with any bus model tested at the facil-
or 150,000 miles—typified by light duty ity.
mid-size buses, approximately 25–35
foot. Subpart C—Operations
(5) Minimum service life of four years
or 100,000 miles—typified by light duty § 665.21 Scheduling.
small buses, cutaways, and modified (a) A manufacturer may schedule a
vans, approximately 16–28 foot. vehicle for testing by contacting Penn
(f) Tests performed in a higher serv- State’s Transportation Institute
ice life category (i.e., longer service (PSTI) at the following address: The
life) need not be repeated when the Pennsylvania State University, Penn-
same bus model is used in lesser service sylvania Transportation Institute, Re-
life applications. However, the use of a search Building B, University Park, PA
bus model in a service life application 16802, (814) 863–1889.
higher than it has been tested for may (b) Upon contacting PSTI, the manu-
make the bus subject to the bus testing facturer will be provided the following:
requirements. (1) A draft contract for the testing;
(g) The operator of the facility shall (2) A fee schedule; and
develop a test plan for the testing of (3) The draft test procedures that will
vehicles at the facility, which gen- be conducted on the vehicle.
erally follows the guidelines set forth (c) PSTI will provide final test proce-
in appendix A of this part. dures to be conducted on the vehicle at
the time of contract execution.
§ 665.13 Test report and manufacturer (d) PSTI will process vehicles for
certification. testing in the order in which the con-
(a) Upon completion of testing, the tracts are signed.
operator of the facility shall provide a
test report to the entity that sub- § 665.23 Fees.
mitted the bus for testing. (a) Fees charged by the operator are
(b)(1) A manufacturer of a new bus according to a schedule approved by
model or a bus produced with a major the FTA, which include different fees
change in component or configuration for partial testing.
shall provide a copy of the test report (b) Fees will be prorated for a vehicle
to a recipient during the point in the withdrawn from the facility before the
procurement process specified by the completion of testing.
recipient.
(2) A manufacturer who releases a re- § 665.25 Transportation of vehicle.
port under paragraph (b)(1) of this sec- A manufacturer is responsible for
tion also shall provide notice to the op- transporting its vehicle to and from
erator of the facility that the report is the facility at the beginning and com-
available to the public. pletion of the testing.
(c) If a bus model subject to a test re-
port has a change that is not a major § 665.27 Procedures during testing.
change under this part, the manufac- (a) The facility operator shall per-
turer shall advise the recipient during form all testing, consistent with estab-
the procurement process and shall in- lished procedures at the facility and
clude description of the change and its with the test procedures provided to
basis for concluding that it is not a the manufacturer at the time of con-
major change. tract execution.
(d) A test report shall be available (b) The manufacturer of a bus being
publicly once the owner of the report tested may terminate the test program
makes it available during the recipi- at any time before the completion of
98
testing, and shall be charged a fee for that could be important to a bus user will be
the tests performed. included in the report.
(c) The operator shall perform all 2. Reliability
maintenance and repairs on the test
The question of reliability will be ad-
vehicle, consistent with manufacturers dressed by recording all bus breakdowns dur-
specifications, unless the operator de- ing testing. It is recognized that with one
termines that the nature of the main- test bus it is not feasible to conduct statis-
tenance or repair is best performed by tical reliability tests. It is anticipated that
the manufacturer under the operator’s bus operation on the durability course
supervision. should reveal the problems that would other-
(d) The manufacturer may observe all wise not be detected until much later during
scheduled transit service. The bus failures,
tests. The manufacturer may not pro- repair time, and the actions required to get
vide maintenance or service unless re- the bus back into operation will be recorded
quested to do so by the operator. in the report.
APPENDIX A TO PART 665—TESTS TO BE 3. Safety

PERFORMED AT THE BUS TESTING The safety test will consist of a handling
FACILITY and stability test. The handling and stability
test is an obstacle avoidance or double-lane
The seven tests to be performed on each change test that will be performed at the
vehicle are required by STURAA and are proving ground. The double-lane change
based in part on tests described in the FTA course will be different for each type of bus
report ‘‘First Article Transit Bus Test and the speed could be different for each type
Plan’’, which is mentioned in the legislative of bus. Coach speed will be held constant
history of section 317. When appropriate, throughout a given test run. Individual test
SAE test procedures and other procedures runs will be made at increasing speeds up to
accepted by the transit industry will be used. 45 mph or until the coach can no longer be
The seven tests are described in general operated safely over the course, whichever
terms in the following paragraphs. speed is lower. Both left-and-right-hand lane
changes will be tested.
1. Maintainability
4. Performance
The maintainability test includes bus serv-
icing, preventive maintenance, inspection, The performance test will be performed on
and repair. It also will include the removal the proving ground and will measure accel-
and reinstallation of the engine and drive eration and gradeability with the test vehi-
train components that would be expected to cle operated at seated load weight. Top speed
require replacement during the bus’ normal also will be measured if it can be done safely
life cycle. Much of the maintainability data on the track. The test will be performed
will be obtained during the bus durability using a fifth wheel or equivalent and associ-
test at the proving ground. Up to twenty-five ated instrumentation. The bus will be accel-
percent of the bus life will be simulated and erated at full throttle from standstill to
there will be servicing, preventive mainte- maximum safe speed on the track. The re-
nance, and repair actions. These actions will port will include a table of time required to
be done by test facility staff, although man- accelerate to each 10 mph increment of speed
ufacturers will be allowed to maintain a rep- and when possible, the top speed. The
resentative on site during the testing. Test gradeability capabilities will be calculated
facility staff may require a manufacturer to both from the test data and a test from a
provide vehicle servicing or repair, under the dead stop on a minimum of a 15 percent
supervision of the facility staff. Since the grade.
operator will not become familiar with the
5. Structural Integrity
detailed design of all new bus models that
are tested, tests to determine the time and Two different structural integrity tests
skill required to remove and reinstall an en- will be performed. Structural strength and
gine, a transmission, or other major propul- distortion tests will be performed at the
sion system components may require advice testing facility in Altoona and structural du-
from the bus manufacturer. All routine and rability tests will be performed at the prov-
corrective maintenance will be carried out ing ground.
by the test operator in accordance with the
manufacturer’s specifications. a. Structural Strength and Distortion Tests
The maintainability test report will in- (1) The structural strength and distortion
clude the frequency, personnel hours, and re- tests will be conducted and will be different
placement parts or supplies required for each for each type of bus. For example, a shake-
action during the test. The accessibility of down of the bus structure will be conducted
selected components and other observations by loading and unloading the bus no more
99
Pt. 665, App. A 49 CFR Ch. VI (10–1–07 Edition)
than three times with a distributed load b. Structural Durability
equal to 2.5 times gross load. The bus then
will be loaded with a distributed load to The structural durability test also will be
gross vehicle weight. (Gross vehicle weight is different for each type of bus, but all tests
a curb weight plus gross load.) Increase in will be performed on the durability course at
floor deflection will be measured as the bus the proving ground, simulating up to twen-
weight is increased from curb weight to ty-five percent of the vehicle’s normal serv-
gross vehicle weight. Then the bus will be ice life. During the test there will be inspec-
loaded with a distributed load equal to 2.5 tions of the bus structure and the mileage
times gross load. The bus then will be un- and identification of possible structural
loaded and inspected for any permanent de- anomalies.
formation on the floor or coach structure.
(2) The bus will be loaded to gross vehicle 6. Fuel Economy
weight, with one wheel on top of a 6-inch-
high curb and then in a 6-inch-deep pot hole. This test will be run to determine the fuel
This test will be repeated for all four wheels. economy in miles per gallon or equivalent of
The test will verify: (a) Normal operation of the new bus models. The test will be run at
the steering mechanism and (b) Operability seated load weight on a duty cycle that sim-
of all passenger doors, passenger escape ulates transit service for the type of vehicle
mechanisms, windows, and service doors. In being tested. The fuel measurement devices
addition, a water leak test will be conducted. under consideration include volumetric,
(3) Using a load-equalizing towing sling, a gravimetric, flow and pressure.
static tension load equal to 1.2 times the bus This fuel economy test bears no relation to
curb weight will be applied to the bus towing the calculations done by the Environmental
fixtures (front and rear). The load will be re- Protection Agency (EPA) to determine fuel
moved and the two eyes and adjoining struc- economy levels for the Corporate Average
ture will be inspected for damages or perma-
Fuel Economy Program. However, the test
nent deformations.
will provide data which can be used by re-
(4) The bus at curb weight will be towed
with a heavy wrecker truck for several miles cipients in their purchase decisions.
after which it will be inspected for structural
7. Noise
damage or permanent deformation.
(5) With the bus at curb weight probable There will be two noise tests: a. Interior
damages due to tire deflating and jacking noise and vibration; and b. Exterior noise. It
will be tested. is recognized that different levels of noise
(6) With the bus at curb weight possible are expected and acceptable with different
damages or deformation associated with lift- types of vehicles and different test proce-
ing the bus on a two post hoist system or dures might be required.
supporting it on jack stands will be assessed.
100
CHAPTER VII—NATIONAL RAILROAD
PASSENGER CORPORATION (AMTRAK)
Part Page
700 Organization, functioning and available informa-
tion ....................................................................... 103
701 Amtrak Freedom of Information Act program ....... 105
101
PART 700—ORGANIZATION, FUNC- confirmed by the Senate (representing
TIONING AND AVAILABLE IN- labor, State Governors, and business);
FORMATION two represent commuter authorities
and are selected by the President from
Sec.
lists drawn up by those authorities;
700.1 Purpose. and two are selected by the Corpora-
700.2 Organization and functioning of Am- tion’s preferred stockholder, the De-
trak. partment of Transportation.
700.3 Availability of documents, assistance, (b) Officers and central management.
and information. Amtrak is managed by a President and
AUTHORITY: 5 U.S.C. 552(a) (1), (2). a Management Committee consisting
SOURCE: 49 FR 24378, June 13, 1984, unless of four Executive Vice Presidents. Re-
otherwise noted. porting to the Executive Vice Presi-
dents are eleven vice presidents rep-
§ 700.1 Purpose. resenting sales, transportation mar-
This part describes the organization keting, planning and development,
and functioning of Amtrak and the computer services, labor relations, fi-
availability to the public of documents nance and treasurer, personnel, pas-
and information concerning its poli- senger and operating services, govern-
cies, procedures and activities. ment affairs, operations and mainte-
nance, engineering, and the General
§ 700.2 Organization and functioning Counsel. Areas handled as special mat-
of Amtrak. ters with the authority of vice presi-
The creation of the National Rail- dents, such as corporate communica-
road Passenger Corporation (‘‘Am- tions, safety, real estate, procurement,
trak’’) was authorized by the Rail Pas- materials management, police and se-
senger Service Act, as amended, 84 curity, contract administration, and
Stat. 1327, 45 U.S.C. 541 et seq. (‘‘the internal audit are supervised by assist-
Act’’). The Act requires that Amtrak ant vice presidents and directors.
be operated and managed as a for-profit (c) Regional and field structure. The
corporation, that it be incorporated need for decentralization of functions
under the District of Columbia Busi- in the areas of passenger services and
ness Corporation Act, and subject to transportation operations has led to
the provisions of that statute to the the creation of Amtrak’s regional and
extent not inconsistent with the Act, field structure. Field offices are lo-
and that it provide a balanced trans- cated in major cities such as Balti-
portation system by developing, oper- more, Philadelphia, New York, Albany,
ating, and improving intercity rail pas- Boston, Chicago, Seattle and Los Ange-
senger service. The Act also states that les. Pursuant to overall policies estab-
Amtrak will not be an agency or established at headquarters in Washington,
lishment of the United States Govern- DC, these offices handle matters like
ment. Amtrak thus is a corporation the assignment and scheduling of em-
created by Congress to compete for the ployees who work on board moving
transportation business of the inter- trains; purchase, stowage and prepara-
city traveller, to the end that the trav- tion of food for dining service; mainte-
elling public will have a choice of trav- nance and rehabilitation of rolling
el modes. The address of its head- stock; and daily operating arrange-
quarters is 400 North Capitol Street, ments such as the make-up of trains or
NW., Washington, DC 20001. Telephone: the cleaning and repairing of cars on
(202) 383–3000. trains.
(a) Board of Directors. Amtrak’s major (d) Route system. Amtrak’s basic
policies are established by its board of route system has been established pur-
directors. The nine members of the suant to statutory guidelines, and in
board are selected as follows: The Sec- some cases by specific statutory direc-
retary of Transportation serves as an tive. Out of a route system covering
ex-officio member and Amtrak’s Presi- about 23,000 route-miles, Amtrak owns
dent, ex-officio, is Chairman of the a right-of-way of about 2,600 track
Board; three members are appointed by miles in the Northeast Corridor (Wash-
the President of the United States and ington-New York-Boston; New Haven-
103
§ 700.3 49 CFR Ch. VII (10–1–07 Edition)
Springfield; and Philadelphia-Harris- accordance with the provisions of 49

burg) and small segments of track near CFR 701.4.
Albany, New York, and Kalamazoo, (b) The National Train Timetables
Michigan. In the Northeast Corridor described in § 700.2(f) are widely distrib-
Amtrak trains are run by operating uted in the continental United States
crews consisting of Amtrak employees. and are available in major cities in Eu-
On other routes, Amtrak operates rope, Canada and Mexico. When they
trains on the tracks of about twenty are updated (usually in April and Octo-
different privately owned railroads and ber each year) each printing involves
compensates the railroad for the use of about 1,000,000 copies. They are ordi-
their facilities and for the services of narily available at staffed Amtrak sta-
their employees, including engineers, tions and copies are usually kept on
conductors, and maintenance per- hand in the offices of about 9800 travel
sonnel. Those private railroads are re- agents who are authorized to sell Am-
sponsible for the conditions of the trak tickets. A person unable to obtain
roadbed and for coordinating the flow a copy locally should request one from
of traffic over their lines. the Director of Corporate Communica-
(e) Operations. Amtrak provides tions at the Washington, DC head-
about 250 trains daily, serving about quarters. The timetable depicts the
500 stations in over forty states. Am- major Amtrak train routes on a map of
trak owns most of its cars and loco- the United States, and most of the re-
motives, some of its stations, and most mainder of the booklet shows the
of its repair facilities. Its capital im- schedules for specific trains. Several
provements and almost half of its oper- pages are used to offer travel informa-
ating losses are supported principally tion dealing with the availability of as-
through Federal financing, with some sistance to handicapped travellers, red
State, regional and local financial sup- cap service, purchase of tickets on
port for some trains and stations. Con- board, use of credit cards and personal
gress requires Amtrak to earn revenues checks, handling of baggage, refunds
equivalent to at least fifty percent of for unused tickets and similar matters.
its operating costs, and it currently (c) Also available to members of the
does so. public at most staffed Amtrak sta-
(f) Revenue production. The sale of tions, and usually maintained in the
tickets for transportation and accom- offices of travel agencies authorized to
modations, Amtrak’s principal source sell Amtrak tickets, is a copy of the
of revenue, is accomplished through Reservations and Ticketing Manual
Amtrak ticket agents at stations, trav- (RTM) which constitutes a compen-
el agencies, and five central reserva- dium of information governing Amtrak
tion offices which service a nationwide employees in furnishing transportation
telephone network. National Time- to the travelling public. It contains
tables contain basic information about substantial segments dedicated to the
routes, stations, and services. following topics: Amtrak’s computer
system and its communication codes;
§ 700.3 Availability of documents, as- interline service agreements; passenger
sistance, and information. and baggage services; customer rela-
(a) A member of the public having tions functions; reservations policy and
need for assistance or information con- procedures; acceptance of checks and
cerning any of the matters described in credit cards; refunds; missed connec-
§ 700.2 should address his or her con- tion policies; ticketing; accommoda-
cerns in a letter or other written com- tions; employee pass travel; location
munication directed to the appropriate maps for Amtrak stations; and inter-
vice president or to the Director of modal state maps.
Corporate Communications. Amtrak (d) A full statement of Amtrak’s tar-
will bring such communications to the iffs containing the fares for point-to-
attention of the appropriate official if point travel, regional plan travel and
they are misdirected in the first in- all relevant travel conditions, such as
stance. Formal requests for ‘‘records’’ excursions, discounts, family plans, ac-
under 5 U.S.C. 552(a)(3) of the Freedom commodations, etc., is contained in the
of Information Act are to be made in privately published Official Railway
104
Nat’l Railroad Passenger Corp. (AMTRAK) § 701.2
Guide, which is available by subscrip- public (i.e., train timetables, press re-
tion from its publisher at 424 West 33rd leases) may be obtained without fol-
Street, New York, New York 10001. A lowing Amtrak’s FOIA procedures. As
copy of the guide can usually be found a matter of policy, Amtrak may make
at each staffed Amtrak station, and at discretionary disclosures of records or
the offices of travel agents authorized information exempt under the FOIA
to sell Amtrak tickets. Tariff changes whenever disclosure would not
which occur between issues of the foreseeably harm an interest protected
Guide are published and widely distrib- by an FOIA exemption; however, this
uted by Amtrak pending their publica- policy does not create any right en-
tion in the next issue of the Guide. forceable in court.
(e) Each of the documents described
in paragraphs (b) through (d) of this § 701.2 Definitions.
section is available to the public for in-
spection during regular business hours Unless the context requires otherwise
at the office of Amtrak’s Freedom of in this part, masculine pronouns in-
Information Office at its headquarters clude the feminine gender and ‘‘in-
at 400 North Capitol Street, NW., Wash- cludes’’ means ‘‘includes but is not lim-
ington, DC 20001, and at the office of ited to.’’
the Division Manager, Human Re- (a) Amtrak or Corporation means the
sources, in New Haven, Philadelphia, National Railroad Passenger Corpora-
Baltimore, New York, Los Angeles and tion.
Chicago. Each document has its own (b) Appeal means a request submitted
index. Since each index is useful only to the President of Amtrak or designee
in connection with the document to for review of an adverse initial deter-
which it pertains, and since requests mination.
for indices are uncommon, Amtrak has (c) Business days means working
determined that publication of its indi- days; Saturdays, Sundays, and legal
ces as described in 5 U.S.C. 552(a)(2) public holidays are excluded in com-
would be unnecessary and impracti- puting response time for processing
cable. FOIA requests.
(d) Disclose or disclosure means mak-
PART 701—AMTRAK FREEDOM OF ing records available for examination
INFORMATION ACT PROGRAM or copying, or furnishing a copy of non-
exempt responsive records.
Sec. (e) Electronic data means records and
701.1 General provisions.
701.2 Definitions.
information (including E-mail) that
701.3 Policy. are created, stored, and retrievable by
701.4 Amtrak public information. electronic means.
701.5 Requirements for making requests. (f) Exempt information means informa-
701.6 Release and processing procedures. tion that is exempt from disclosure
701.7 Timing of responses to requests.
under one or more of the nine exemp-
701.8 Responses to requests.
701.9 Business information. tions to the FOIA.
701.10 Appeals. (g) Final determination means a deci-
701.11 Fees. sion by the President of Amtrak or des-
701.12 Other rights and services. ignee concerning a request for review
AUTHORITY: 5 U.S.C. 552; 49 U.S.C. 24301(e). of an adverse initial determination re-
SOURCE: 63 FR 7311, Feb. 13, 1998, unless ceived in response to an FOIA request.
otherwise noted. (h) Freedom of Information Act or
‘‘FOIA’’ means the statute as codified
§ 701.1 General provisions. in section 552 of Title 5 of the United
This part contains the rules that the States Code as amended.
National Railroad Passenger Corpora- (i) Freedom of Information Officer
tion (‘‘Amtrak’’) follows in processing means the Amtrak official designated
requests for records under the Freedom to fulfill the responsibilities of imple-
of Information Act (FOIA), Title 5 of menting and administering the Free-
the United States Code, section 552. In- dom of Information Act as specifically
formation routinely provided to the designated under this part.
105
(j) Initial determination means a deci- to the extent withholding is permitted

sion by an Amtrak FOIA Officer in re- by law.
sponse to a request for information (b) A record of the Corporation, or
under the FOIA. parts thereof, may be withheld from
(k) Pages means paper copies of disclosure if it comes under one or
standard office size or the cost equiva- more exemptions in 5 U.S.C. 552(b) or is
lent in other media. otherwise exempted by law. Disclosure
(l) President means the President and to a properly constituted advisory
Chief Executive Officer (CEO) of the committee, to Congress, or to federal
National Railroad Passenger Corpora- agencies does not waive the exemption.
tion (Amtrak) or designee. (c) In the event one or more exemp-
(m) Record means any writing, draw- tions apply to a record, any reasonably
ing, map, recording, tape, film, photo- segregable portion of the record will be
graph, or other documentary material made available to the requesting per-
by which information is preserved in son after deletion of the exempt por-
any format, including electronic for- tions. The entire record may be with-
mat. A record must exist and be in the held if a determination is made that
possession and control of Amtrak at nonexempt material is so inextricably
the time of the request to be subject to intertwined that disclosure would leave
this part and the FOIA. The following only essentially meaningless words or
are not included within the definition phrases, or when it can be reasonably
of the word ‘‘record’’: assumed that a skillful and knowledge-
(1) Library materials compiled for able person could reconstruct the de-
reference purposes or objects of sub- leted information.
stantial intrinsic value. (d) The procedures in this part apply
only to records in existence at the time
(2) Routing and transmittal sheets,
of a request. The Corporation has no
notes, and filing notes which do not
obligation to create a record solely for
also include information, comments, or
the purpose of making it available
statements of substance.
under the FOIA or to provide a record
(3) Anything that is not a tangible or
that will be created in the future.
documentary record such as an individ-
(e) Each officer and employee of the
ual’s memory or oral communication.
Corporation dealing with FOIA re-
(4) Objects or articles, whatever their quests is directed to cooperate in mak-
historical or value as evidence. ing records available for disclosure
(n) Request means any request for under the Act in a prompt manner con-
records made pursuant to 5 U.S.C. sistent with this part.
552(a)(3). (f) The FOIA time limits will not
(o) Requester or requesting party means begin to run until a request has been
any person who has submitted a re- identified as being made under the Act
quest to Amtrak. and deemed received by the Freedom of
(p) Responsive records means docu- Information Office.
ments determined to be within the (g) Generally, when a member of the
scope of a FOIA request. public complies with the procedures es-
tablished in this part for obtaining
§ 701.3 Policy. records under the FOIA, the request
(a) Amtrak will make records of the shall receive prompt attention, and a
Corporation available to the public to response shall be made within twenty
the greatest practicable extent in business days.
keeping with the spirit of the law.
Therefore, records of the Corporation § 701.4 Amtrak public information.
are available for public inspection and (a) Public reading room. Amtrak main-
copying as provided in this part with tains a public reading room at its head-
the exception of those that the Cor- quarters at 60 Massachusetts Avenue,
poration specifically determines should N.E. in Washington, D.C. The public
not be disclosed either in the public in- reading room contains records required
terest, for the protection of private under the FOIA to be regularly avail-
rights, or for the efficient conduct of able for public inspection and copying.
public or corporate business, but only A current subject-matter index shall be
106
maintained of records in the public (d) Guide for making requests. A guide
reading room that are available for in- on how to use the FOIA for requesting
spection and copying. The index shall records from Amtrak shall be made
be updated at least quarterly with re- available to the public upon request.
spect to newly included records. A copy Amtrak’s major information systems
of the index shall be provided upon re- will be described in the guide.
quest at a cost not to exceed the direct
cost of duplication. § 701.5 Requirements for making re-
(b) Electronic reading room. Amtrak quests.
will make available electronically (a) General requirements. (1) A FOIA
reading room records created by the request can be made by ‘‘any person’’
Corporation on or after November 1, as defined in 5 U.S.C. 551(2), which en-
1996 on its World Wide Web site which compasses individuals (including for-
can be accessed at http:// eign citizens; partnerships; corpora-
www.Amtrak.com. An index of the Cor- tions; associations; and local, state,
poration’s reading room records will tribal, and foreign governments). A
also be made available at the web site. FOIA request may not be made by a
The index will indicate reading room Federal agency.
records that are available electroni- (2) A request must be in writing, indi-
cally. cate that it is being made under the
(c) Frequently requested information. FOIA and provide an adequate descrip-
The FOIA requires that copies of tion of the records sought. The request
records, regardless of form or format, should also include applicable informa-
released pursuant to a FOIA request tion regarding fees as specified in para-
under 5 U.S.C. 552(a)(3) that have be- graphs (d) and (e) of this section.
come or are likely to become the sub- (b) How to submit a request. (1) A re-
ject of subsequent requests for substan- quest must clearly state on the enve-
tially the same records be made pub- lope and in the letter that it is a Free-
licly available. Such records created by dom of Information Act or ‘‘FOIA’’ re-
the Corporation after November 1, 1996 quest.
will be made available electronically (2) The request must be addressed to
while records created prior to this date the Freedom of Information Office; Na-
will be made available for inspection tional Railroad Passenger Corporation;
and copying in Amtrak’s public reading 60 Massachusetts Avenue, N.E.; Wash-
room. ington, D.C. 20002. Requests will also be
(1) Amtrak shall decide on a case-by- accepted by facsimile at (202) 906–2169.
case basis whether records fall into the Amtrak cannot assure that a timely or
category of ‘‘frequently requested satisfactory response under this part
FOIA records’’ based on the following will be given to written requests ad-
factors: dressed to Amtrak offices, officers, or
(i) Previous experience with similar employees other than the Freedom of
records; Information Office. Amtrak employees
(ii) The nature and type of informa- receiving a communication in the na-
tion contained in the records; ture of a FOIA request shall forward it
(iii) The identity and number of re- to the FOIA Office expeditiously. Am-
questers and whether there is wide- trak shall advise the requesting party
spread media or commercial interest in of the date that an improperly ad-
the records. dressed request is received by the FOIA
(2) The provision in this paragraph is Office.
intended for situations where public (c) Content of the request—(1) Descrip-
access in a timely manner is impor- tion of records. Identification of records
tant. It is not intended to apply where sought under the FOIA is the responsi-
there may be a limited number of re- bility of the requester. The records
quests over a short period of time from sought should be described in sufficient
a few requesters. Amtrak may remove detail so that Amtrak personnel can lo-
the records from this category when it cate them with a reasonable amount of
is determined that access is no longer effort. When possible, the request
necessary. should include specific information
107
such as dates, title or name, author, re- (iii) Amtrak will hold in abeyance for
cipient, subject matter of the record, forty-five (45) days requests requiring
file designation or number, or other agreement to pay fees and will there-
pertinent details for each record or cat- after deem the request closed. This ac-
egory of records sought. tion will not prevent the requesting
(2) Reformulation of a request. Amtrak party from refiling the FOIA request
is not obligated to act on a request with a fee commitment at a subsequent
until the requester provides sufficient date.
information to locate the record. Am- (2) Fees in excess of $250. When Am-
trak may offer assistance in identi- trak estimates or determines that al-
fying records and reformulating a re- lowable charges are likely to exceed
quest where: the description is consid- $250, an advance deposit of the entire
ered insufficient, the production of vo- fee may be required before continuing
luminous records is required, or a con- to process the request.
siderable number of work hours would (e) Information regarding fee category.
be required that would interfere with In order to determine the appropriate
the business of the Corporation. The fee category, a request should indicate
Freedom of Information Office shall whether the information sought is in-
notify the requester within ten busi- tended for commercial use or whether
ness days of the type of information the requesting party is a member of
that will facilitate the search. The re- the staff of an educational or non-
questing party shall be given an oppor- commercial scientific institution or a
tunity to supply additional informa- representative of the news media.
tion and may submit a revised request,
(f) Records concerning other individ-
which will be treated as a new request.
uals. If the request is for records con-
(d) Payment of fees. The submission of
cerning another individual, either a
a FOIA request constitutes an agree-
written authorization signed by that
ment to pay applicable fees accessed up
individual permitting disclosure of
to $25.00 unless the requesting party
those records to the requesting party
specifies a willingness to pay a greater
or proof that the individual is deceased
or lesser amount or seeks a fee waiver
or reduction in fees. (i.e., a copy of a death certificate or an
(1) Fees in excess of $25.00. When Am- obituary) will help to expedite proc-
trak determines or estimates that ap- essing of the request.
plicable fees are likely to exceed $25.00,
§ 701.6 Release and processing proce-
the requesting party shall be notified dures.
of estimated or actual fees, unless a
commitment has been made in advance (a) General provisions. In determining
to pay all fees. If only a portion of the records that are responsive to a re-
fee can be estimated readily, Amtrak quest, Amtrak will ordinarily include
shall advise the requester that the esti- only records that exist and are in the
mated fee may be a portion of the total possession and control of the Corpora-
fee. tion as of the date that the search is
(i) In order to protect requesters begun. If any other date is used, the re-
from large and/or unexpected fees, Am- questing party will be informed of that
trak will request a specific commit- date.
ment when it estimates or determines (b) Authority to grant or deny requests.
that fees will exceed $100.00. Amtrak’s FOIA officer is authorized to
(ii) A request shall not be considered grant or deny any request for records.
received, and further processing carried (c) Notice of referral. If Amtrak refers
out until the requesting party agrees all or any part of the responsibility for
to pay the anticipated total fee. Any responding to a request to another or-
such agreement must be memorialized ganization, the requesting party will be
in writing. A notice under this para- notified. A referral shall not be consid-
graph will offer the requesting party an ered a denial of access within the
opportunity to discuss the matter in meaning of this part. All consultations
order to reformulate the request to and referrals of requests will be han-
meet the requester’s needs at a lower dled according to the date that the
cost. FOIA request was initially received.
108
(d) Creating a record. There is no obli- (ii) The request does not state a will-
gation on the part of Amtrak to create, ingness to pay all fees;
compile, or obtain a record to satisfy a (iii) A request seeking a fee waiver
FOIA request. The FOIA also does not does not address the criteria for fee
require that a new computer program waivers set forth in § 701.11(k);
be developed to extract the records re- (iv) A fee waiver request is denied,
quested. Amtrak may compile or cre- and the request does not include an al-
ate a new record, however, when doing ternative statement indicating that
so would result in a more useful re- the requesting party is willing to pay
sponse to the requesting party or all fees.
would be less burdensome to Amtrak (b) Initial determination. Whenever
than providing existing records. The possible, an initial determination to
cost of creating or compiling such a release or deny a record shall be made
record may not be charged to the re- within twenty business days after re-
quester unless the fee for creating the ceipt of the request. In ‘‘unusual cir-
record is equal to or less than the fee cumstances’’ as described in paragraph
that would be charged for providing the (d) of this section, the time for an ini-
existing record. tial determination may be extended for
(e) Incomplete records. If the records ten business days.
requested are not complete at the time (c) Multitrack processing. (1) Amtrak
of a request, Amtrak may, at its dis- may use two or more processing tracks
cretion, inform the requester that com- by distinguishing between simple and
plete nonexempt records will be pro- more complex requests based on the
vided when available without having to amount of work and/or time needed to
submit an additional request. process a request or the number of
(f) Electronic records. Amtrak is not pages involved.
obligated to process a request for elec- (2) In general, when requests are re-
tronic records where creation of a ceived, Amtrak’s FOIA Office will re-
record, programming or a particular view and categorize them for tracking
format would result in a significant ex- purposes. Requests within each track
penditure of resources or interfere with will be processed according to date of
the corporation’s operations.
receipt.
§ 701.7 Timing of responses to re- (3) The FOIA Office may contact a re-
quests. quester when a request does not appear
to qualify for fast track processing to
(a) General. (1) The time limits of the provide an opportunity to limit the
FOIA will begin only after the require- scope of the request and qualify for a
ments for submitting a request as es- faster track. Such notification shall be
tablished in § 701.5 have been met, and at the discretion of the FOIA Office
the request is deemed received by the and will depend largely on whether it is
Freedom of Information Office.
believed that a narrowing of the re-
(2) A request for records shall be con- quest could place the request on a fast-
sidered to have been received on the er track.
later of the following dates:
(d) Unusual circumstances. (1) The re-
(i) The requester has agreed in writ- questing party shall be notified in writ-
ing to pay applicable fees in according if the time limits for processing a
ance with § 701.5(d), or request cannot be met because of un-
(ii) The fees have been waived in ac- usual circumstances, and it will be nec-
cordance with § 701.11(k), or essary to extend the time limits for
(iii) Payment in advance has been re- processing the request. The notifica-
ceived from the requester when re- tion shall include the date by which
quired in accordance with § 701.11(i). the request can be expected to be com-
(3) The time for responding to re- pleted. Where the extension is for more
quests set forth in paragraph (b) of this than ten business days, the requesting
section may be delayed if: party will be afforded an opportunity
(i) The request does not sufficiently to either modify the request so that it
identify the fee category applicable to may be processed within the time lim-
the request; its or to arrange an alternative time
109
period for processing the initial request lish that he is a person whose main
or modified request. professional activity or occupation is
(2) If Amtrak believes that multiple information dissemination, though it
requests submitted by a requester or need not be his sole occupation. A re-
by a group of requesters acting in con- quester must establish a particular ur-
cert constitute a single request that gency to inform the public about the
would otherwise involve unusual cir- Amtrak activity involved in the re-
cumstances and the requests involve quest.
clearly related matters, the requests (5) Within ten business days of re-
may be aggregated. Multiple requests ceipt of a request for expedited proc-
concerning unrelated matters may not essing, Amtrak shall determine wheth-
be aggregated. er to grant such a request and notify
(3) Unusual circumstances that may the requester of the decision. If a re-
justify delay include: quest for expedited treatment is grant-
(i) The need to search for and collect ed, the request shall be given priority
the requested records from other facili- and shall be processed as soon as prac-
ties that are separate from Amtrak’s ticable.
headquarters offices. (6) Amtrak shall provide prompt con-
(ii) The need to search for, collect, sideration of appeals of decisions deny-
and examine a voluminous amount of ing expedited processing.
separate and distinct records sought in
a single request. § 701.8 Responses to requests.
(iii) The need for consultation, which (a) Granting of requests. When an ini-
shall be conducted with all practicable tial determination is made to grant a
speed, with agencies having a substan- request in whole or in part, the re-
tial interest in the determination of questing party shall be notified in writ-
the request, or among two or more Am- ing and advised of any fees charged
trak components having a substantial under § 701.11(e). The records shall be
subject-matter interest in the request. disclosed to the requesting party
(e) Expedited processing. (1) Requests promptly upon payment of applicable
and appeals may be taken out of order fees.
and given expedited treatment when- (b) Adverse determination of requests—
ever it is determined that they involve (1) Types of denials. The requesting
a compelling need, which means: party shall be notified in writing of a
(i) Circumstances in which the lack determination to deny a request in any
of expedited treatment could reason- respect. Adverse determinations or de-
ably be expected to pose an imminent nials of records consist of:
threat to the life or physical safety of (i) A determination to withhold any
an individual; and requested record in whole or in part;
(ii) An urgency to inform the public (ii) A determination that a requested
about an actual or alleged Amtrak ac- record does not exist or cannot be lo-
tivity, if made by a person primarily cated;
engaged in disseminating information. (iii) A denial of a request for expe-
(2) A request for expedited processing dited treatment; and
may be made at the time of the initial (iv) A determination on any disputed
request for records or at a later date. fee matter including a denial of a re-
(3) A requester seeking expedited quest for a fee waiver.
processing must submit a statement, (2) Deletions. When practical, records
certified to be true and correct to the disclosed in part shall be marked or an-
best of that person’s knowledge and be- notated to show both the amount and
lief, explaining in detail the basis for location of the information deleted.
requesting expedited processing. This (3) Content of denial letter. The denial
statement must accompany the request letter shall be signed by the Freedom
in order to be considered and responded of Information Officer or designee and
to within the ten calendar days re- shall include:
quired for decisions on expedited ac- (i) A brief statement of the reason(s)
cess. for the adverse determination includ-
(4) A requester who is not a full-time ing any FOIA exemptions applied in de-
member of the news media must estab- nying the request;
110
(ii) An estimate of the volume of in- tions of records containing the infor-
formation withheld (number of pages mation.
or some other reasonable form of esti- (e) When notice is required. Notice
mation). An estimate does not need to shall be given to a submitter when:
be provided if the volume is indicated (1) The information has been des-
through deletions on records disclosed ignated in good faith by the submitter
in part, or if providing an estimate as information considered protected
would harm an interest protected by an from disclosure under Exemption 4; or
applicable exemption; (2) Amtrak has reason to believe that
(iii) A statement that an appeal may the information may be protected from
be filed under § 701.10 and a description disclosure under Exemption 4.
of the requirements of that section; (f) Opportunity to object to disclosure.
and Amtrak will allow a submitter a rea-
(iv) The name and title or position of sonable amount of time to respond to
the person responsible for the denial. the notice described in paragraph (d) of
this section.
§ 701.9 Business information. (1) A detailed written statement
must be submitted to Amtrak if the
(a) General. Business information submitter has any objection to disclo-
held by Amtrak will be disclosed under sure. The statement must specify all
the FOIA only under this section. grounds for withholding any specified
(b) Definitions. For purposes of this portion of the information sought
section, the following definitions under the FOIA. In the case of Exemp-
apply: tion 4, it must show why the informa-
(1) Business information means com- tion is a trade secret or commercial or
mercial or financial information held financial information that is privileged
by Amtrak that may be protected from or confidential.
disclosure under Exemption 4 of the (2) In the event that a submitter fails
FOIA, 5 U.S.C. 552(b)(4). to respond within the time specified in
(2) Submitter means any person or en- the notice, the submitter will be con-
tity including partnerships; corpora- sidered to have no objection to disclo-
tions; associations; and local, state, sure of the information sought under
tribal, and foreign governments. the FOIA.
(c) Designation of business information. (3) Information provided by a sub-
A submitter of business information mitter in response to the notice may be
will use good faith efforts to designate, subject to disclosure under the FOIA.
by appropriate markings, either at the (g) Notice of intent to disclose. Amtrak
time of submission or at a reasonable shall consider a submitter’s objections
time thereafter, any portions of its and specific grounds for disclosure in
submission that it considers to be pro- making a determination whether to
tected from disclosure under Exemp- disclose the information. In any in-
tion 4. These designations will expire stance, when a decision is made to dis-
ten years after the date of the submis- close information over the objection of
sion unless the submitter requests and a submitter, Amtrak shall give the
provides justification for a longer des- submitter written notice which shall
ignation period. include:
(d) Notice to submitters. Amtrak shall (1) A statement of the reason(s) why
provide a submitter with prompt writ- each of the submitter’s objections to
ten notice of an FOIA request or an ap- disclosure was not sustained;
peal that seeks its business informa- (2) A description of the information
tion when required under paragraph (e) to be disclosed; and
of this section, except as provided in (3) A specified disclosure date, which
paragraph (h), in order to give the sub- shall be a reasonable time subsequent
mitter an opportunity to object to dis- to the notice.
closure of any specified portion of the (h) Exceptions to notice requirements.
information under paragraph (f). The The notice requirements of this section
notice shall either describe the busi- shall not apply if:
ness information requested or include (1) Amtrak determines that the infor-
copies of the requested records or por- mation should not be disclosed;
111
(2) The information has been pub- (3) The appeal must be in writing and
lished or has been officially made specify the relevant facts and the basis
available to the public; for the appeal. The appeal letter and
(3) Disclosure of the information is envelope must be marked prominently
required by law (other than the FOIA); ‘‘Freedom of Information Act Appeal’’
(4) The designation made by the sub- to ensure that it is properly routed.
mitter under paragraph (c) of this sec- (4) The appeal must be received by
tion appears obviously frivolous. In the President’s Office within thirty (30)
such a case, Amtrak shall within a rea- days of the date of denial.
sonable time prior to a specified disclo- (5) An appeal will not be acted upon
sure date, give the submitter written if the request becomes a matter of
notice of the final decision to disclose FOIA litigation.
the information; or (b) Responses to appeals. The decision
(5) The information requested is not on any appeal shall be made in writing.
designated by the submitter as exempt (1) A decision upholding an adverse
from disclosure in accordance with this determination in whole or in part shall
part, unless Amtrak has substantial contain a statement of the reason(s)
reason to believe that disclosure of the for such action, including any FOIA ex-
information would result in competi- emption(s) applied. The requesting
tive harm. party shall also be advised of the provi-
(i) Notice of a FOIA lawsuit. Whenever sion for judicial review of the decision
a FOIA requester files a lawsuit seek- contained in 5 U.S.C. 552(a)(4)(B).
ing to compel disclosure of business in- (2) If the adverse determination is re-
formation, Amtrak shall promptly no- versed or modified on appeal in whole
tify the submitter. or in part, the requesting party shall
(j) Notice to requesters. (1) When Am- be notified, and the request shall be re-
trak provides a submitter with notice processed in accordance with the deci-
and an opportunity to object to disclo- sion.
sure under paragraph (f) of this section, (c) When appeal is required. The re-
the FOIA Office shall also notify the questing party must appeal any ad-
requester(s). verse determination prior to seeking
(2) When Amtrak notifies a submitter judicial review.
of its intent to disclose requested infor-
mation under paragraph (g) of this sec- § 701.11 Fees.
tion, Amtrak shall also notify the re- (a) General. Amtrak shall charge for
quester(s). processing requests under the FOIA in
(3) When a submitter files a lawsuit accordance with this section. A fee of
seeking to prevent the disclosure of $9.50 per quarter hour shall be charged
business information, Amtrak shall no- for search and review. For information
tify the requester(s). concerning other processing fees, refer
to paragraph (e) of this section. Am-
§ 701.10 Appeals.
trak shall collect all applicable fees be-
(a) Appeals of adverse determinations. fore releasing copies of requested
(1) The requesting party may appeal: records to the requesting party. Pay-
(i) A decision to withhold any re- ment of fees shall be made by check or
quested record in whole or in part; money order payable to the National
(ii) A determination that a requested Railroad Passenger Corporation.
record does not exist or cannot be lo- (b) Definitions. For purposes of this
cated; section:
(iii) A denial of a request for expe- (1) Search means the process of look-
dited treatment; or ing for and retrieving records or infor-
(iv) Any disputed fee matter or the mation responsive to a request. It in-
denial of a request for a fee waiver. cludes page-by-page or line-by-line
(2) The appeal must be addressed to identification of information within
the President and Chief Executive Offi- records and also includes reasonable ef-
cer (CEO); National Railroad Passenger forts to locate and retrieve information
Corporation; 60 Massachusetts Avenue, from records maintained in electronic
N.E., Washington, D.C. 20002. form or format.
112
(2) Review means the process of exam- pose that furthers his commercial,
ining a record located in response to a trade, or profit interests, including fur-
request to determine whether one or thering those interests through litiga-
more of the statutory exemptions of tion. Amtrak shall determine, when-
the FOIA apply. Processing any record ever reasonably possible, the use to
for disclosure includes doing all that is which a requester will put the records
necessary to redact the record and pre- sought by the request. When it appears
pare it for release. Review time in- that the requesting party will put the
cludes time spent considering formal records to a commercial use, either be-
objection to disclosure by a commer- cause of the nature of the request itself
cial submitter under § 701.9, but does or because Amtrak has reasonable
not include time spent resolving gen- cause to doubt the stated intended use,
eral legal or policy issues regarding the Amtrak shall provide the requesting
application of exemptions. Review party with an opportunity to submit
costs are recoverable even if a record further clarification. Where a requester
ultimately is not disclosed. does not explain the use or where ex-
(3) Reproduction means the making of planation is insufficient, Amtrak may
a copy of a record or the information draw reasonable inferences from the re-
contained in it in order to respond to a quester’s identity and charge accord-
FOIA request. Copies can take the form ingly.
of paper, microform, audiovisual mate- (2) Representative of the news media or
rials, or electronic records (i.e., mag- news media requester refers to any per-
netic tape or disk) among others. Am- son actively gathering news for an en-
trak shall honor a requester’s specified tity that is organized and operated to
preference for the form or format of publish or broadcast news to the pub-
disclosure if the record is readily re- lic. The term ‘‘news’’ means informa-
producible with reasonable effort in the tion that is about current events or
requested form or format by the office that would be of current interest to the
responding to the request. public. Examples of news media enti-
(4) Direct costs means those expenses ties include television or radio stations
actually incurred in searching for and broadcasting to the public at large and
reproducing (and, in the case of com- publishers of periodicals (but only in
mercial use requests, reviewing) those instances where they can qualify
records to respond to a FOIA request. as disseminators of news). For ‘‘free-
Direct costs include such costs as the lance’’ journalists to be regarded as
salary of the employee performing the working for a news organization, they
work (the basic rate of pay for the em- must demonstrate a solid basis for ex-
ployee plus applicable benefits and the pecting publication through an organi-
cost of operating reproduction equip- zation. A publication contract would be
ment). Direct costs do not include the clearest proof, but Amtrak shall
overhead expenses such as the costs of also look to the past publication record
space and heating or lighting of the fa- of a requester in making this deter-
cility. mination. A request for records sup-
(c) Fee categories. There are four cat- porting the news dissemination func-
egories of FOIA requesters for fee pur- tion of the requester shall not be con-
poses: ‘‘commercial use requesters,’’ sidered to be for commercial use.
‘‘representatives of the news media,’’ (3) Educational institution refers to a
‘‘educational and non-commercial sci- preschool, a public or private elemen-
entific institution requesters,’’ and tary or secondary school, an institu-
‘‘all other requesters.’’ The categories tion of undergraduate higher edu-
are defined in paragraphs (c)(1) through cation, an institution of graduate high-
(5), and applicable fees, which are the er education, an institution of profes-
same for two of the categories, will be sional education, or an institution of
assessed as specified in paragraph (d) of vocational education that operates a
this section. program of scholarly research. To be in
(1) Commercial requesters. The term this category, a requester must show
‘‘commercial use’’ request refers to a that the request is authorized by and is
request from or on behalf of a person made under the auspices of a qualifying
who seeks information for a use or pur- institution and that the records are not
113
sought for commercial use but to fur- (d) of this section. Amtrak shall charge
ther scholarly research. 25 cents per page for a paper photocopy
(4) Noncommercial scientific institution of a record. For copies produced by
refers to an institution that is not op- computer (such as tapes or printouts),
erated on a ‘‘commercial’’ basis, as Amtrak will charge the direct costs,
that term is defined in paragraph (c)(1) including the operator time in pro-
of this section, and that is operated ducing the copy. For other forms of du-
solely for the purpose of conducting plication, Amtrak will charge the di-
scientific research, the results of which rect costs of that duplication.
are not intended to promote any par- (4) Review fees. Review fees will be as-
ticular product or industry. To be in sessed for commercial use requests.
this category, the requesting party Such fees will be assessed for review
must show that the request is author-
conducted in making an initial deter-
ized by and is made under the auspices
mination, or upon appeal, when review
of a qualifying institution and that the
is conducted to determine whether an
records are not sought for commercial
exemption not previously considered is
use but to further scientific research.
(5) Other requesters refers to request- applicable.
ers who do not come under the purview (5) Charges for other services. The ac-
of paragraphs (c)(1) through (4) of this tual cost or amount shall be charged
section. for all other types of output, produc-
(d) Assessing fees. In responding to tion, and duplication (e.g., photo-
FOIA requests, Amtrak shall charge graphs, maps, or printed materials).
the following fees unless a waiver or a Determinations of actual cost shall in-
reduction in fees has been granted clude the commercial cost of the
under paragraph (k) of this section: media, the personnel time expended in
(1) ‘‘Commercial use’’ requesters: The making the item available for release,
full allowable direct costs for search, and an allocated cost for the equip-
review, and duplication of records. ment used in producing the item. The
(2) ‘‘Representatives of the news media’’ requesting party will be charged actual
and ‘‘educational and non-commercial production costs when a commercial
scientific institution’’ requesters: Duplica- service is required. Items published and
tion charges only, excluding charges available through Amtrak will be made
for the first 100 pages. available at the publication price.
(3) ‘‘All other’’ requesters: The direct (6) Charges for special services. Apart
costs of search and duplication of from the other provisions of this sec-
records. The first 100 pages of duplication, when Amtrak chooses as a matter
tion and the first two hours of search of discretion to provide a special serv-
time shall be provided without charge. ice such as certifying that records are
(e) Schedule of fees—(1) Manual true copies or sending records by other
searches. Personnel search time in-
than ordinary mail, the direct costs of
cludes time expended in either manual
providing such services shall be
searches for paper records, searches
charged.
using indices, review of computer
search results for relevant records, and (f) Commitment to pay fees. When Am-
personal computer system searches. trak determines or estimates that ap-
(2) Computer searches. The direct costs plicable fees will likely exceed $25.00,
of conducting a computer search will the requesting party will be notified of
be charged. These direct costs will in- the actual or estimated amount unless
clude the cost of operating a central a written statement has been received
processing unit for that portion of the indicating a willingness to pay all fees.
operating time that is directly attrib- To protect requesters from large and/or
utable to searching for responsive unexpected fees, Amtrak will request a
records as well as the costs of operator/ specific commitment when it is esti-
programmer salary apportionable to mated or determined that fees will ex-
the search. ceed $100.00. See § 701.5(d) for additional
(3) Duplication fees. Duplication fees information.
will be charged all requesters subject (g) Restrictions in accessing fees—(1)
to limitations specified in paragraph General. Fees for search and review will
114
not be charged for a quarter-hour pe- (j) Charging interest. Amtrak may
riod unless more than half of that pe- charge interest on any unpaid bill for
riod is required. processing charges starting on the 31st
(2) Minimum fee. No fees will be day following the date of billing the re-
charged if the cost of collecting the fee quester. Interest charges will be as-
is equal to or greater than the fee sessed at the rate that Amtrak pays for
itself. That cost includes the costs to short-term borrowing.
Amtrak for billing, receiving, record- (k) Waiver or reduction of fees—(1)
ing, and processing the fee for deposit, Automatic waiver of fees. When the costs
which has been deemed to be $10.00. for a FOIA request total $10.00 or less,
(3) Computer searches. With the excep- fees shall be waived automatically for
tion of requesters seeking documents all requesters regardless of category.
for commercial use, Amtrak shall not (2) Other fee waivers. Decisions to
charge fees for computer search until waive or reduce fees that exceed the
the cost of search equals the equivalent automatic waiver threshold shall be
dollar amount of two hours of the sal- made on a case-by-case basis. Records
ary of the operator performing the responsive to a request will be fur-
search. nished without charge or at below the
(h) Nonproductive searches. Amtrak established charge where Amtrak de-
may charge for time spent for search termines, based on all available infor-
and review even if responsive records mation, that disclosure of the re-
are not located or if the records located quested information is in the public in-
are determined to be entirely exempt terest because:
from disclosure. (i) It is likely to contribute signifi-
(i) Advance payments. (1) When Am- cantly to public understanding of the
trak estimates or determines that operations or activities of Amtrak, and
charges are likely to exceed $250, an ad- (ii) It is not primarily in the com-
vance payment of the entire fee may be mercial interest of the requesting
required before continuing to process party.
the request. (3) To determine whether the fee
(2) When there is evidence that the waiver requirement in paragraph
requester may not pay the fees that (k)(2)(i) of this section is met, Amtrak
would be incurred by processing the re- will consider the following factors:
quest, an advance deposit may be re- (i) The subject of the request—whether
quired. Amtrak may require the full the subject of the requested records con-
amount due plus applicable interest cerns the operations or activities of Am-
and an advance payment of the full trak. The subject of the requested
amount of anticipated fees before be- records must concern identifiable oper-
ginning to process a new request or ations or activities of Amtrak with a
continuing to process a pending re- connection that is direct and clear, not
quest where a requester has previously remote or attenuated.
failed to pay a properly charged FOIA (ii) The informative value of the infor-
fee within thirty (30) days of the date mation to be disclosed—whether the dis-
of billing. The time limits of the FOIA closure is likely to contribute to an under-
will begin only after Amtrak has re- standing of Amtrak operations or activi-
ceived such payment. ties. The disclosable portions of the re-
(3) Amtrak will hold in abeyance for quested records must be meaningfully
forty-five (45) days requests where de- informative about Amtrak’s operations
posits are due. or activities in order to be found to be
(4) Monies owed for work already likely to contribute to an increased
completed (i.e., before copies are sent public understanding of those oper-
to a requester) shall not be considered ations or activities. The disclosure of
an advance payment. information that already is in the pub-
(5) Amtrak shall not deem a request lic domain, in either a duplicative or a
as being received in cases in which an substantially identical form, would not
advance deposit or payment is due, and be as likely to contribute to such un-
further work will not be done until the derstanding where nothing new would
required payment is received. be added to the public’s understanding.
115
(iii) The contribution to an under- public interest in disclosure, that disclo-

standing of the subject by the public like- sure is ‘‘primarily in the commercial inter-
ly to result from disclosure—whether dis- est of the requester.’’ A fee waiver or re-
closure of the requested information will duction is justified where the public in-
contribute to public understanding. The terest standard is satisfied and public
disclosure must contribute to the un- interest is greater in magnitude than
derstanding of a reasonably broad audi- any identified commercial interest in
ence of persons interested in the sub- disclosure.
ject as opposed to the individual under- (5) Requests for a fee waiver will be
standing of the requester. A requester’s considered on a case-by-case basis,
ability and expertise in the subject based upon the merits of the informa-
area as well as the requester’s intention provided. Where it is difficult to
tion to effectively convey information determine whether the request is com-
to the public shall be considered. It mercial in nature, Amtrak may draw
shall be presumed that a representative inference from the requester’s identity
of the news media will satisfy this con- and the circumstances of the request.
sideration. (6) Requests for a waiver or reduction
(iv) The significance of the contribution of fees must address the factors listed
to public understanding—whether the dis- in paragraphs (k) (3) and (4) of this sec-
closure is likely to contribute significantly tion. In all cases, the burden shall be
to public understanding of Amtrak oper- on the requesting party to present evi-
ations or activities. The public’s under- dence of information in support of a re-
standing of the subject in question, as quest for a waiver of fees.
compared to the level of public under- (l) Aggregating requests. A requester
standing existing prior to the disclo- may not file multiple requests at the
sure, must be enhanced by the disclo- same time in order to avoid payment of
sure to a significant extent. fees. Where Amtrak reasonably be-
(4) To determine whether the fee lieves that a requester or a group of re-
waiver requirement in paragraph questers acting in concert is attempt-
(k)(2)(ii) of this section is met, Amtrak ing to divide a request into a series of
will consider the following factors: requests for the purpose of avoiding
(i) The existence and magnitude of a fees, Amtrak may aggregate those re-
commercial interest—whether the request- quests and charge accordingly. Amtrak
ing party has a commercial interest that may presume that multiple requests of
would be furthered by the requested dis- this type made within a thirty-day pe-
closure. Amtrak shall consider any riod have been made in order to avoid
commercial interest of the requesting fees. Where requests are separated by a
party (with reference to the definition longer period, Amtrak may aggregate
of ‘‘commercial use’’ in paragraph them only when there exists a solid
(c)(1) of this section), or any person on basis for determining that aggregation
whose behalf the requesting party may is warranted. Multiple requests involv-
be acting that would be furthered by ing unrelated matters may not be ag-
the requested disclosure. Requesters gregated.
shall be given an opportunity to pro-
vide explanatory information regard- § 701.12 Other rights and services.
ing this consideration. Nothing in this part shall be con-
(ii) The primary interest in disclosure— strued as entitling any person, as of
whether the magnitude of the identified right, to any service or the disclosure
commercial interest of the requester is suf- of any record to which such person is
ficiently large in comparison with the not entitled under the FOIA.
116
CHAPTER VIII—NATIONAL TRANSPORTATION
SAFETY BOARD
Part Page
800 Organization and functions of the Board and dele-
gations of authority ............................................. 119
801 Public availability of information .......................... 125
802 Rules implementing the Privacy Act of 1974 ........... 134
803 Official seal ............................................................. 141
804 Rules implementing the Government in the Sun-
shine Act .............................................................. 142
805 Employee responsibilities and conduct ................... 145
806 National security information policy and guide-
lines, implementing regulations .......................... 154
807 Enforcement of nondiscrimination on the basis of
handicap in programs or activities conducted by
the National Transportation Safety Board .......... 155
821 Rules of practice in air safety proceedings ............. 161
825 Rules of procedure for merchant marine appeals
from decisions of the Commandant, U.S. Coast
Guard ................................................................... 178
826 Rules implementing the Equal Access to Justice
Act of 1980 ............................................................ 180
830 Notification and reporting of aircraft accidents or
incidents and overdue aircraft, and preservation
of aircraft wreckage, mail, cargo, and records ..... 186
831 Accident/incident investigation procedures ............ 189
835 Testimony of Board employees ............................... 194
837 Production of records in legal proceedings ............. 197
840 Rules pertaining to notification of railroad acci-
dents ..................................................................... 199
845 Rules of practice in transportation; accident/inci-
dent hearings and reports .................................... 200
850 Coast Guard—National Transportation Safety
Board marine casualty investigations ................. 204
851–999 [Reserved]
117
PART 800—ORGANIZATION AND Vice Chairman. The Members exercise
FUNCTIONS OF THE BOARD AND various functions, powers, and duties
DELEGATIONS OF AUTHORITY set forth in the Federal Aviation Act of
1958, as amended (49 U.S.C. 40101 et
Subpart A—Organization and Functions seq.), and the Independent Safety Board
Act of 1974, as amended (49 U.S.C. 1101
Sec. et seq.). The Board is an independent
800.1 Purpose. agency of the United States. More de-
800.2 Organization.
800.3 Functions. tailed descriptions of the Board and its
800.4 Operation. work are contained in other parts of
800.5 Office locations. this chapter VIII, notably parts 825, 830
800.6 Availability of information and mate- through 835, and 840 through 850. Var-
rials. ious special delegations of authority
from the Board and the Chairman to
Subpart B—Delegations of Authority to Staff the staff are set forth in subpart B of
Members
this part. The Board’s staff is com-
800.21 Purpose. prised of the following principal com-
800.22 Delegation to the Managing Director. ponents:
800.23 Delegation to the administrative law (a) The Office of the Managing Direc-
judges, Office of Administrative Law tor, which assists the Chairman in the
Judges.
800.24 Delegation to the General Counsel. discharge of his functions as executive
800.25 Delegation to the Directors of Office and administrative head of the Board;
of Aviation Safety, Office of Railroad coordinates and directs the activities
Safety, Office of Highway Safety, Office of the staff; is responsible for the day-
of Marine Safety, and Office of Pipeline to-day operation of the Board; and rec-
and Hazardous Materials Safety. ommends and develops plans to achieve
800.26 Delegation to the Chief, Public In- the Board’s program objectives. The
quiries Branch.
800.27 Delegation to investigative officers Office of the Managing Director also
and employees of the Board. provides executive secretariat services
800.28 Delegation to the Chief Financial Of- to the Board.
ficer. (b) The Office of Government, Public,
APPENDIX TO PART 800—REQUEST TO THE SEC- and Family Affairs, which supplies the
RETARY OF THE DEPARTMENT OF TRANS- Congress and Federal, State, and local
PORTATION TO INVESTIGATE CERTAIN AIR- government agencies with information
CRAFT ACCIDENTS
regarding the Safety Board’s activities,
AUTHORITY: Independent Safety Board Act programs and objectives; supplies the
of 1974, as amended (49 U.S.C. 1101 et seq.); public, the transportation industry and
Federal Aviation Act of 1958, as amended (49 the news media with current, accurate
U.S.C. 40101 et seq.).
information concerning the work, pro-
SOURCE: 49 FR 26232, June 27, 1984, unless grams, and objectives of the Board; co-
otherwise noted. ordinates public and private respon-
sibilities, including aid to survivors
Subpart A—Organization and and families of accident victims, in the
Functions wake of transportation disasters. This
Office maintains the 24-hour Commu-
§ 800.1 Purpose. nications Center, which assists in co-
This part describes the organization, ordinating accident notification and
functions, and operation of the Na- launch operations for all modes and
tional Transportation Safety Board provides an off-hour base for family as-
(Board). sistance functions during accident in-
vestigations.
§ 800.2 Organization. (c) The Office of the General Counsel,
The Board consists of five Members which provides legal advice and assist-
appointed by the President with the ance to the Board and its staff; pre-
advice and consent of the Senate. One pares Board rules, opinions and/or or-
of the Members is designated by the ders, and advice to all offices on mat-
President as Chairman with the advice ters of legal significance; and rep-
and consent of the Senate and one as resents the Board in judicial matters
119
§ 800.2 49 CFR Ch. VIII (10–1–07 Edition)
to which the Board is a party or in gated authority to do so by the Board;

which the Board is interested. initiates safety recommendations to
(d) The Office of Administrative Law prevent future highway accidents; and
Judges, which conducts all formal pro- conducts special investigations into se-
ceedings arising under the Federal lected highway accidents involving
Aviation Act of 1958, as amended, in- safety issues of concern to the Board.
cluding proceedings involving civil (h) The Office of Marine Safety,
penalties and suspension or revocation which conducts investigations of ma-
of certificates, and appeals from ac- rine accidents within the Board’s juris-
tions of the Federal Aviation Adminis- diction; prepares reports for submis-
trator in refusing to issue airman cer- sion to the Board and release to the
tificates. public setting forth the facts and cir-
(e) The Office of Aviation Safety, cumstances of such accidents, includ-
which conducts investigations of all ing a recommendation as to the prob-
aviation accidents within the Board’s able cause(s); determines the probable
jurisdiction; prepares reports for sub- cause(s) of accidents when delegated
mission to the Board and release to the authority to do so by the Board; initi-
public setting forth the facts and cir- ates safety recommendations to pre-
cumstances of such accidents, includ- vent future marine accidents; partici-
ing a recommendation as to the prob- pates in the investigation of accidents
able cause(s); determines the probable that occur in foreign countries and
cause(s) of accidents when delegated that involve U.S.-registered vessels;
authority to do so by the Board; initi-
and conducts special investigations
ates safety recommendations to pre-
into selected marine accidents involv-
vent future aviation accidents; partici-
ing safety issues of concern to the
pates in the investigation of accidents
Board.
that occur in foreign countries and in-
volve U.S.-registered and/or U.S.-manu- (i) The Office of Pipeline and Haz-
factured aircraft; and conducts special ardous Materials Safety, which con-
investigations into selected aviation ducts investigations of pipeline and
accidents involving safety issues of hazardous materials accidents within
concern to the Board. the Board’s jurisdiction; prepares re-
(f) The Office of Railroad Safety, ports for submission to the Board and
which conducts investigations of rail- release to the public setting forth the
road accidents within the Board’s juris- facts and circumstances of such acci-
diction; prepares reports for submis- dents, including a recommendation as
sion to the Board and release to the to the probable cause(s); determines
public setting forth the facts and cir- the probable causes of accidents when
cumstances of such accidents, includ- delegated authority to do so by the
ing a recommendation as to the prob- Board; initiates safety recommenda-
able cause(s); determines the probable tions to prevent future pipeline and
cause(s) of accidents when delegated hazardous materials accidents; and
authority to do so by the Board; initi- conducts special investigations into se-
ates safety recommendations to pre- lected pipeline and hazardous mate-
vent future railroad accidents; and con- rials accidents involving safety issues
ducts special investigations into se- of concern to the Board.
lected rail accidents involving safety (j) The Office of Research and Engi-
issues of concern to the Board. neering, which conducts research and
(g) The Office of Highway Safety, carries out analytical studies and tests
which conducts investigations of high- involving all modes, including readouts
way accidents, including railroad of voice and data recorders, flight path
grade-crossing accidents, within the analysis and computer simulation/ani-
Board’s jurisdiction; prepares reports mation, component examination and
for submission to the Board and release material failure analysis; conducts
to the public setting forth the facts safety studies of specific safety issues;
and circumstances of such accidents, performs statistical analyses of trans-
including a recommendation as to the portation accident and incident data;
probable cause(s); determines the prob- maintains archival records of the
able cause(s) of accidents when dele- Board’s accident investigation and
120
National Transportation Safety Board § 800.4
safety promotion activities and sup- provisions of the Administrative Proce-

ports public access to these records; dure Act, 5 U.S.C. 551 et seq., denials by
and administers the Board’s informa- the Administrator of the Federal Avia-
tion technology infrastructure, includ- tion Administrator of applications for
ing computer systems, networks, data- airman certificates and orders of the
bases, and application software. Administrator modifying, amending,
(k) The Office of Safety Rec- suspending, or revoking certificates or
ommendations & Accomplishments, imposing civil penalties. The Board
which oversees the Board’s safety rec- also reviews on appeal the decisions of
ommendations program, including the the Commandant, U.S. Coast Guard, on
Board’s ‘‘MOST WANTED’’ rec- appeals from orders of administrative
ommendations, and the Board’s safety law judges suspending, revoking, or de-
accomplishment program. nying seamen licenses, certificates, or
[60 FR 61488, Nov. 30, 1996, as amended at 61
documents.
FR 14521, April 2, 1995; 63 FR 71605, Dec. 29, (c) The Board, as provided in Part 801
1998; 64 FR 5621, Feb. 4, 1999] of this chapter, issues reports and or-
ders pursuant to its duties to deter-
§ 800.3 Functions. mine the cause or probable cause or
(a) The primary function of the causes of transportation accidents and
Board is to promote safety in transpor- to report the facts, conditions and cir-
tation. The Board is responsible for the cumstances relating to such accidents;
investigation, determination of facts, issues opinions and/or orders after re-
conditions, and circumstances and the viewing on appeal the imposition of a
cause or probable cause or causes of: civil penalty or the suspension, amend-
all accidents involving civil aircraft, ment, modification, revocation, or de-
and certain public aircraft; highway nial of any certificate or license issued
accidents, including railroad grade- by the Secretary of the Department of
crossing accidents, the investigation of Transportation (who acts through the
which is selected in cooperation with Administrator of the Federal Aviation
the States; railroad accidents in which Administration or the Commandant of
there is a fatality, substantial property the United States Coast Guard); and
damage, or which involve a passenger issues and makes available to the pub-
train; pipeline accidents in which there lic safety recommendations, safety
is a fatality, significant injury to the studies, and reports of special inves-
environment, or substantial property tigations.
damage; and major marine casualties [60 FR 61488, Nov. 30, 1995]
and marine accidents involving a pub-
lic and a non-public vessel or involving § 800.4 Operation.
Coast Guard functions. The Board In exercising its functions, duties,
makes transportation safety rec- and responsibilities, the Board utilizes:
ommendations to Federal, State, and (a) The Board’s staff, consisting of
local agencies and private organiza- specialized offices dealing with par-
tions to reduce the likelihood of ticular areas of transportation safety
recurrences of transportation acci- and performing administrative and
dents. It initiates and conducts safety technical work for the Board. The staff
studies and special investigations on advises the Board and performs duties
matters pertaining to safety in trans- for the Board that are inherent in the
portation, assesses techniques and staff’s position in the organizational
methods of accident investigation, structure or that the Board has dele-
evaluates the effectiveness of transpor- gated to it. The staff is described more
tation safety consciousness and effi- fully in § 800.2.
cacy in preventing accidents of other (b) Rules published in the FEDERAL
Government agencies, and evaluates REGISTER and codified in this Title 49
the adequacy of safeguards and proce- of the Code of Federal Regulations.
dures concerning the transportation of These rules may be inspected in the
hazardous materials. Board’s public reference room, or pur-
(b) Upon application of affected par- chased from the Superintendent of
ties, the Board reviews in quasijudicial Documents, Government Printing Of-
proceedings, conducted pursuant to the fice.
121
(c) Procedures and policies set forth § 800.22 Delegation to the Managing
in the agency’s internal directives sys- Director.
tem which govern the activities of em- (a) The Board delegates to the Man-
ployees and organizational components aging Director the authority to:
of the Board. The internal directives (1) Make the final determination, on
system is designated as the NTSB Man- appeal, as to whether to withhold a
ual and consists of instructions which Board record from inspection or copy-
are called NTSB Orders and NTSB No- ing, pursuant to Part 801 of this chap-
tices. ter.
(d) Meetings of the Board Members (2) Approve for publication in the
conducted pursuant to the Government FEDERAL REGISTER notices concerning
in the Sunshine Act. issuance of accident reports and safety
(e) Public hearings in connection recommendations and responses to
with transportation accident investiga- safety recommendations, as required
tions and public hearings and oral ar- by sections 304(a)(2) and 307 of the Inde-
guments in proceedings concerned with pendent Safety Board Act of 1974 (49
certificates or licenses issued by the U.S.C. 1131(d) and 1135(c)).
Secretary or an Administrator of the (b) The Chairman delegates to the
Department of Transportation. They Managing Director the authority to ex-
are held at the time and place an- ercise and carry out, subject to the di-
nounced in the notices thereof which rection and supervision of the Chair-
are served on the parties to the pro- man, the following functions vested in
the Chairman:
ceedings or published in the FEDERAL
REGISTER. (1) The appointment and supervision
of personnel employed by the Board;
[49 FR 26232, June 27, 1984, as amended at 60 (2) The distribution of business
FR 61489, Nov. 30, 1995] among such personnel and among orga-
nizational components of the Board;
§ 800.5 Office locations. and
The principal offices of the National (3) The use and expenditure of funds.
Transportation Safety Board are lo- [60 FR 61489, Nov. 30, 1995]
cated at 490 L’Enfant Plaza East, SW.,
Washington, DC 20594. The Board main- § 800.23 Delegation to the administra-
tains field offices in selected cities tive law judges, Office of Adminis-
throughout the United States. trative Law Judges.
[60 FR 61489, Nov. 30, 1995] The Board delegates to the adminis-
trative law judges the authority gen-
§ 800.6 Availability of information and erally detailed in its procedural regula-
materials. tions at Part 821 of this chapter.
Part 801 of this chapter provides de- [60 FR 61489, Nov. 30, 1995]
tailed information concerning the
availability of Board documents and § 800.24 Delegation to the General
records. That part also provides a fee Counsel.
schedule and information concerning The Board delegates to the General
inspection and copying. Counsel the authority to:
(a) Approve, disapprove, request more
Subpart B—Delegations of information, or otherwise handle re-
quests for testimony of Board employ-
Authority to Staff Members ees with respect to their participation
§ 800.21 Purpose. in the investigation of accidents, and,
upon receipt of notice that an em-
The purpose of this Subpart B is to ployee has been subpoenaed, to make
publish special delegations of author- arrangements with the court either to
ity to staff members. have the employee excused from testi-
fying or to give the employee permis-
[60 FR 61489, Nov. 30, 1995]
sion to testify in accordance with the
provisions of Part 835 of this Chapter.
122
(b) Approve or disapprove in safety § 800.25 Delegation to the Directors of

enforcement proceedings, for good Office of Aviation Safety, Office of
cause shown, requests for extensions of Railroad Safety, Office of Highway
time or for other changes in procedural Safety, Office of Marine Safety, and
requirements subsequent to the initial Office of Pipeline and Hazardous
Materials Safety.
decision, grant or deny requests to file
additional and/or amicus briefs pursu- The Board delegates to the Directors
ant to §§ 821.9 and 821.48 of this Chapter, of the Offices of Aviation, Railroad,
and raise on appeal any issue the reso- Highway, Marine, and Pipeline and
lution of which he deems important to Hazardous Materials Safety, the au-
the proper disposition of proceedings thority to:
under § 821.49 of this Chapter. (a) Order an investigation into the
(c) Approve or disapprove, for good facts, conditions, and circumstances of
cause shown, requests to extend the accidents that the Board has authority
time for filing comments on proposed to investigate.
new or amended regulations. (b) Disclose factual information per-
(d) Issue regulations for the purpose tinent to all accidents or incidents as
of making editorial changes or correc- provided for in Part 801 of this chapter.
tions in the Board’s rules and regula- (c) Determine the probable cause(s)
tions. of accidents in which the determina-
(e) Issue orders staying or declining tion is issued in the ‘‘Brief of Acci-
to stay, pending judicial review, orders dent’’ format, except that the Office
of the Board suspending or revoking Director will submit the findings of the
certificates, and consent to the entry accident investigation to the Board for
of judicial stays with respect to such determination of the probable cause(s)
orders. when (1) any Board Member so re-
(f) Compromise civil penalties in the quests, (2) it appears to the Office Di-
case of violations arising under The rector that, because of significant pub-
Independent Safety Board Act of 1974, lic interest, a policy issue, or a safety
as amended, or any rule, regulation, or issue of other matter, the determina-
order issued thereunder. tion of the probable cause(s) should be
(g) Issue orders dismissing appeals made by the Board, or (3) the accident
from initial decisions of Board admin- investigation will be used to support
istrative law judges pursuant to the re- findings in a special investigation or
study. Provided, that a petition for re-
quest of the appellant or, where the re-
consideration or modification of a de-
quest is consensual, at the request of
termination of the probable cause(s)
any party.
made under § 845.41 of this Chapter
(h) Correct Board orders by elimi-
shall be acted on by the Board.
nating typographical, grammatical,
(d) Consistent with Board resources,
and similar errors, and make editorial
investigate accidents as provided under
changes therein not involving matters
§ 304(a) of the Independent Safety Board
of substance.
Act of 1974, as amended (49 U.S.C.
(i) Take such action as appropriate or
1131(a)) and the Appendix to this Part.
necessary adequately to compromise,
settle, or otherwise represent the [60 FR 61489, Nov. 30, 1995, as amended at 63
Board’s interest in judicial or adminis- FR 71606, Dec. 29, 1998]
trative actions to which the Board is a
party or in which the Board is inter- § 800.26 Delegation to the Chief, Public
Inquiries Branch.
ested.
(j) Dismiss late filed notices of appeal The Board delegates to the Chief,
and appeal briefs for lack of good Public Inquiries Branch, the authority
cause. to determine, initially, the withholding
of a board record from inspection or
[60 FR 61489, Nov. 30, 1995, as amended at 63 copying, pursuant to part 801 of this
FR 71606, Dec. 29, 1998] chapter.
[63 FR 71606, Dec. 29, 1998]
123
§ 800.27 Delegation to investigative of- (2) Accidents involving aircraft operated in

ficers and employees of the Board. accordance with the provisions of Part 135 of
the Federal Air Regulations entitled ‘‘Air
The Board delegates to any officer or Taxi Operators and Commercial Operators of
employee of the Board designated by Small Aircraft.’’
the Chairman of the Safety Board the (3) Accidents involving aircraft operated
authority to sign and issue subpoenas, by an air carrier authorized by certificate of
and administer oaths and affirmations, public convenience and necessity to engage
and to take depositions or cause them in air transportation.
to be taken in connection with the in- (4) Accidents involving midair collisions.
vestigation of transportation accidents (c) Provided, That the Board may, through
or incidents. the chiefs of its field offices, or their des-
ignees who receive the initial notifications,
[60 FR 61490, Nov. 30, 1995] advise the Secretary, through his appro-
priate designee, that the Board will assume
§ 800.28 Delegation to the Chief Finan- the full responsibility for the investigation
cial Officer. of an accident included in this request in the
The Board delegates to the Chief Fi- same manner as an accident not so included;
nancial Officer the authority to settle and Provided further, That the Board,
claims for money damages of $2,500 or through the chiefs of its field offices, or their
designees who receive initial notifications
less against the United States arising
may request the Secretary, through his ap-
under Section 2672 of 28 United States propriate designee, to investigate an acci-
Code (the Federal Tort Claims Act) be- dent not included in this request, which
cause of acts or omissions of Board em- would normally be investigated by the Board
ployees. under section (b) (1) through (4) above, and in
[63 FR 71606, Dec. 29, 1998] the same manner as an accident so included.
(d) Provided, That this authority shall not
APPENDIX TO PART 800—REQUEST TO THE be construed to authorize the Secretary to
hold public hearings or to determine the
SECRETARY OF THE DEPARTMENT OF
probable cause of the accident; and Provided
TRANSPORTATION TO INVESTIGATE
further, That the Secretary will report to the
CERTAIN AIRCRAFT ACCIDENTS Board in a form acceptable to the Board the
(a) Acting pursuant to the authority vested facts, conditions, and circumstances sur-
in it by Title VII of the Federal Aviation Act rounding each accident from which the
of 1958 (49 U.S.C. 1441) and section 304(a)(1) of Board may determine the probable cause.
the Independent Safety Board Act of 1974, (e) And provided further, That this request
the National Transportation Safety Board includes authority to conduct autopsies and
(Board) hereby requests the Secretary of the such other tests of the remains of deceased
Department of Transportation (Secretary) to persons aboard the aircraft at the time of
exercise his authority subject to the terms, the accident, who die as a result of the acci-
conditions, and limitations of Title VII and dent, necessary to the investigations re-
section 304(a)(1) of the Independent Safety quested hereunder and such authority may
Board Act of 1974, and as set forth below to be delegated and redelegated to any official
investigate the facts, conditions, and cir- or employee of the Federal Aviation Admin-
cumstances surrounding certain fixed-wing istration (FAA). For the purpose of this pro-
and rotorcraft aircraft accidents and to sub- vision, designated aviation examiners are
mit a report to the Board from which the not deemed to be officials or employees of
Board may make a determination of the
the FAA.
probable cause.
(f) Invoking the provisions of section 701(f)
(b) The authority to be exercised hereunder
of the Federal Aviation Act of 1958, and sec-
shall include the investigation of all civil
aircraft accidents involving rotorcraft, aer- tion 304(a)(1) of the Independent Safety
ial application, amateur-built aircraft, re- Board Act of 1974, is necessary inasmuch as
stricted category aircraft, and all fixed-wing sufficient funds have not been made avail-
aircraft which have a certificated maximum able to the Board to provide adequate facili-
gross takeoff weight of 12,500 pounds or less ties and personnel to investigate all acci-
except: dents involving civil aircraft. This request,
(1) Accidents in which fatal injuries have therefore, is considered to be temporary in
occurred to an occupant of such aircraft, but nature and may be modified or terminated
shall include accidents involving fatalities by written notice to the Secretary.
incurred as a result of aerial application op-
erations, amateur-built aircraft operations,
FR 71606, Dec. 29, 1998]

or restricted category aircraft operations.
124
PART 801—PUBLIC AVAILABILITY SOURCE: 72 FR 18915, Apr. 16, 2007, unless

otherwise noted.
OF INFORMATION
Subpart A—Applicability and Policy Subpart A—Applicability and
Policy
Sec.
801.1 Applicability. § 801.1 Applicability.
801.2 Policy.
801.3 Definitions. (a) This part contains the rules that
the National Transportation Safety
Subpart B—Administration Board (NTSB) follows in processing re-
quests for records under the Freedom
801.10 General. of Information Act (FOIA), 5 U.S.C. 552.
801.11 Segregability of records. These rules should be read together
801.12 Protection of records.
with the FOIA, which provides addi-
Subpart C—Time Limits tional information about public access
to records maintained by the NTSB.
801.20 Processing of records. (b) This part also provides for docu-
801.21 Initial determination. ment services and the fees for such
801.22 Final determination. services, pursuant to 31 U.S.C. 9701.
801.23 Extension.
(c) This part applies only to records
Subpart D—Accident Investigation Records existing when the request for the infor-
mation is made. The NTSB is not re-
801.30 Records from accident investigations. quired to create records for the sole
801.31 Public hearings regarding investiga- purpose of responding to a FOIA re-
tions. quest.
801.32 Accident reports.
(d) Sections 801.51 through 801.59 of
Subpart E—Other Board Documents this chapter describe records that are
exempt from public disclosure.
801.40 The Board’s rules.
801.41 Reports to Congress. § 801.2 Policy.
Subpart F—Exemption from Public (a) In implementing 5 U.S.C. 552, it is
Disclosure the policy of the NTSB to make infor-
mation available to the public to the
801.50 Exemptions from disclosure. greatest extent possible, consistent
801.51 National defense and foreign policy with the mission of the NTSB. Infor-
secrets. mation the NTSB routinely provides to
801.52 Internal personnel rules and practices
the public as part of a regular NTSB
of the NTSB.
801.53 Records exempt by statute from dis- activity (such as press releases and in-
closure. formation disclosed on the NTSB’s pub-
801.54 Trade secrets and commercial or fi- lic Web site) may be provided to the
nancial information. public without compliance with this
801.55 Interagency and intra-agency ex- part. In addition, as a matter of policy,
changes. the NTSB may make discretionary dis-
801.56 Unwarranted invasion of personal pri- closures of records or information oth-
vacy.
801.57 Records compiled for law enforce-
erwise exempt from disclosure under
ment purposes. the FOIA whenever disclosure would
801.58 Records for regulation of financial in- not foreseeably harm an interest pro-
stitutions. tected by a FOIA exemption; however,
801.59 Geological records. this policy does not create any right
enforceable in court.
Subpart G—Fee Schedule (b) Given the NTSB’s stated policy of
801.60 Fee schedule. providing as much information as pos-
801.61 Appeals of fee determinations. sible regarding general NTSB oper-
ations and releasing documents involv-
AUTHORITY: Independent Safety Board Act
ing investigations, the NTSB strongly
of 1974, as amended (49 U.S.C. 1101–1155); 5
U.S.C. 551(2); Freedom of Information Act (5 encourages requesters seeking informa-
U.S.C. 552); 18 U.S.C. 641 and 2071; 31 U.S.C. tion to check the NTSB’s Web site for
3717 and 9701; Federal Records Act, 44 U.S.C. such information before submitting a
Chapters 21, 29, 31, and 33. FOIA request. For every investigation
125
in which the NTSB has determined the tion of whether to release records with-
probable cause of an accident, the in the 20-working-day time limit, or
NTSB’s docket management system the extension specified in the Freedom
will include a ‘‘public docket’’ con- of Information Act.
taining documentation that the inves- (c) The NTSB’s Chief, Records Man-
tigator-in-charge deemed pertinent to agement Division, shall:
the investigation. Requesters may ob- (1) Maintain for public access and
tain these public dockets without sub- commercial reproduction all accident
mitting a FOIA request. The NTSB en- files containing aviation and surface
courages all requesters to review the investigators’ reports, factual accident
public docket materials before submit- reports or group chairman reports, doc-
ting a FOIA request. umentation and accident correspond-
§ 801.3 Definitions. ence files, transcripts of public hear-
ings, if any, and exhibits; and
The following definitions shall apply (2) Maintain a public reference room,
in this part:
also known as a ‘‘Reading Room,’’ in
(a) ‘‘Record’’ includes any writing,
accordance with 5 U.S.C. 552(a)(2). The
drawing, map, recording, tape, film,
NTSB’s public reference room is lo-
photo, or other documentary material
cated at 490 East L’Enfant Plaza, SW.,
by which information is preserved. In
Washington, DC. Other records may be
this part, ‘‘document’’ and ‘‘record’’
shall have the same meaning. available in the NTSB’s Electronic
(b) ‘‘Redact’’ refers to the act of Reading Room, which is located on the
making a portion of text illegible by NTSB’s Web site, found at http://
placing a black mark on top of the www.ntsb.gov.
text. (d) Requests for documents must be
(c) ‘‘Public Docket’’ includes a col- made in writing to: National Transpor-
lection of records from an accident in- tation Safety Board, Attention: FOIA
vestigation that the investigator who Officer CIO–40, 490 L’Enfant Plaza, SW.,
oversaw the investigation of that acci- Washington, DC 20594–2000. All re-
dent has deemed pertinent to deter- quests:
mining the probable cause of the acci- (1) Must reasonably identify the
dent. record requested. For requests regard-
(d) ‘‘Non-docket’’ items include other ing an investigation of a particular ac-
records from an accident that the incident, requesters should include the
vestigator who oversaw the investiga- date and location of the accident, as
tion of that accident has deemed irrele- well as the NTSB investigation num-
vant or not directly pertinent to deter- ber. In response to broad requests for
mining the probable cause of the acci- records regarding a particular inves-
dent. tigation, the FOIA Office will notify
(e) ‘‘Chairman’’ means the Chairman the requester of the existence of a pub-
of the NTSB. lic docket, and state that other non-
(f) ‘‘Managing Director’’ means the docket items may be available, or may
Managing Director of the NTSB. become available, at a later date. After
(g) ‘‘Requester’’ means any person, as receiving this letter and reviewing the
defined in 5 U.S.C. 551(2), who submits items in the public docket, requesters
a request pursuant to the FOIA. should notify the FOIA office if the
items contained in the public docket
Subpart B—Administration suffice to fulfill their request.
(2) Must be accompanied by the fee or
§ 801.10 General. agreement (if any) to pay the reproduc-
(a) The NTSB’s Chief, Records Man- tion costs shown in the fee schedule at
agement Division, is responsible for the § 801.60 of this title, and
custody and control of all NTSB (3) Must contain the name, address,
records required to be preserved under and telephone number of the person
the Federal Records Act, 44 U.S.C. making the request. Requesters must
Chapters 21, 29, 31, and 33. update their address and telephone
(b) The NTSB’s FOIA Officer shall be number in writing should this informa-
responsible for the initial determination change.
126
(e) The envelope in which the re- obtain records before an investigation
quester submits the request should be is complete.
marked prominently with the letters
‘‘FOIA.’’ If a request fails to include a § 801.11 Segregability of records.
citation to the FOIA, the NTSB FOIA The initial decision of the FOIA Offi-
Office will attempt to contact the re- cer will include a determination of
quester immediately to rectify the segregability. If it is reasonable to do
omission and/or clarify the request. so, the exempt portions of a record will
However, the 20-working-day time be segregated and, where necessary, re-
limit for processing shall not com- dacted, and the nonexempt portions
mence until the FOIA Office receives a will be sent to the requester.
complete request.
(f) The field offices of the NTSB shall § 801.12 Protection of records.
not maintain, for public access, records (a) No person may, without permis-
maintained by the Chief, Records Man- sion, remove from the place where it is
agement Division. Requests mailed to made available any record made avail-
NTSB field offices will not satisfy the able for inspection or copying under
NTSB’s requirements for submitting a § 801.10(c)(2) of this part. Stealing, al-
FOIA request. tering, mutilating, obliterating, or de-
(g) The NTSB may work with a com- stroying, in whole or in part, such a
mercial reproduction firm to accommo- record shall be deemed a criminal of-
date requests for reproduction of acci- fense.
dent records from the public docket. (b) Section 641 of title 18 of the
The reproduction charges may be sub- United States Code provides, in perti-
ject to change. The NTSB will update nent part, as follows:
its FOIA Web site to reflect any such ‘‘Whoever * * * steals, purloins, or know-
changes. Section 801.60 of this title ingly converts to his use or the use of an-
contains a current fee schedule. other, or without authority, sells, conveys or
(h) The NTSB will not release records disposes of any record * * * or thing of value
originally generated by other agencies of the United States or of any department or
or entities. Instead, the NTSB will agency thereof * * * shall be fined under this
refer such requests for other agencies’ title or imprisoned not more than ten years,
or both; but if the value of such property in
records to the appropriate agency,
the aggregate, combining amounts from all
which will make a release determina- the counts for which the defendant is con-
tion upon receiving and processing the victed in a single case, does not exceed the
referred request. sum of $1,000, he shall be fined under this
(i) Where a requester seeks a record title or imprisoned not more than one year,
on behalf of another person, and the or both.’’
record contains that person’s personal (c) Section 2071(a) of title 18 of the
information protected by Exemption 6 United States Code provides, in perti-
of the FOIA (see section 801.56 of this nent part, as follows:
title), the NTSB requires the requester
to submit a notarized statement of Whoever willfully and unlawfully conceals,
consent from the person whose per- removes, mutilates, obliterates, or destroys,
or attempts to do so, or, with intent to do so
sonal information is contained in the takes and carries away any record, pro-
record, before the NTSB releases the ceeding, map, book, paper, document, or
record. other thing, filed or deposited * * * in any
(j) In general, the NTSB will deny re- public office, or with any * * * public officer
quests for records concerning a pending of the United States, shall be fined under
investigation, pursuant to appropriate this title or imprisoned not more than three
exemptions under the FOIA. The FOIA years, or both.
Office will notify the requester of this
denial, and will provide the requester Subpart C—Time Limits
with information regarding how the re-
quester may receive information on the § 801.20 Processing of requests.
investigation once the investigation is (a) The NTSB processes FOIA re-
complete. The NTSB discourages requests upon receipt. The NTSB FOIA
questers from submitting multiple Office may notify the requester that
FOIA requests in a continuing effort to the NTSB has received the request. The
127
FOIA Office will then place each re- lic holidays) after receipt of such ap-
quest on one of three tracks: peal, except that this time limit may
(1) Track 1: Requests for which there be extended for as many as 10 addi-
are no records, requests that meet the tional working days, in accordance
criteria for expedited processing, or re- with § 801.23.
quests that seek records that have been
produced in response to a prior request. § 801.23 Extension.
(2) Track 2: Requests that do not in-
In unusual circumstances as specified
volve voluminous records or lengthy
in this section, the time limits pre-
consultations with other entities.
(3) Track 3: Requests that involve vo- scribed in either § 801.21 or § 801.22, may
luminous records and for which be extended by written notice to the
lengthy or numerous consultations are person making a request and setting
required, or those requests which may forth the reasons for such extension
involve sensitive records. and the date on which a determination
(b) Regarding expedited processing, if is expected to be dispatched. Such no-
a requester states that he or she has a tice will not specify a date that would
compelling need for the expedited result in an extension for more than 10
treatment of their request, then the working days. As used in this para-
NTSB FOIA Office will determine graph, ‘‘unusual circumstances,’’ as
whether to expedite the request and, they relate to any delay that is reason-
where appropriate, do so. ably necessary to the proper processing
of the particular request, means—
§ 801.21 Initial determination.
(a) The need to search for and collect
The NTSB FOIA Officer will make an the requested records from field facili-
initial determination as to whether to ties or other establishments;
release a record within 20 working days (b) The need to search for, collect,
(excluding Saturdays, Sundays, and and appropriately examine and process
legal public holidays) after the request
a voluminous amount of records which
is received. This time limit may be ex-
are the subject of a single request; or
tended up to 10 additional working
days in accordance with § 801.23 of this (c) The need to consult with another
part. The person making the request agency that has a substantial interest
will be notified immediately in writing in the disposition of the request or
of such determination. If a determina- with two or more components of the
tion is made to release the requested agency having substantial subject-mat-
record(s), such record(s) will be made ter interest therein.
available promptly. If the FOIA Officer
determines not to release the record(s), Subpart D—Accident Investigation
the person making the request will, Records
when he or she is notified of such de-
termination, be advised of: § 801.30 Records from accident inves-
(a) The reason for the determination, tigations.
(b) the right to appeal the determina-
Upon completion of an accident in-
tion, and
(c) the name and title or positions of vestigation, each NTSB investigator
each person responsible for the denial (or ‘‘group chairman,’’ depending on
of the request. the investigation) shall complete a fac-
tual report with supporting docu-
§ 801.22 Final determination. mentation and include these items in
Requesters seeking an appeal of the the public docket for the investigation.
FOIA Officer’s initial determination The Chief, Records Management Divi-
must send a written appeal to the sion, will then make the records avail-
NTSB’s Managing Director within 20 able to the public for inspection or pro-
days. The NTSB’s Managing Director duction by an order for commercial
will determine whether to grant or copying.
deny any appeal made pursuant to
§ 801.21 within 20 working days (exclud-
ing Saturdays, Sundays, and legal pub-
128
§ 801.31 Public hearings regarding in- withheld under 5 U.S.C. 552(b), unless it
vestigations. determines that the release of that
Within approximately four (4) weeks record would be inconsistent with the
after a public hearing concerning an in- purpose of the exemption concerned.
vestigation, the Chief, Records Man- Examples of records given in §§ 801.51
agement Division, will make available through 801.58 included within a par-
to the public the hearing transcript. On ticular statutory exemption are not
or before the date of the hearing, the necessarily illustrative of all types of
Chief, Records Management Division, records covered by the applicable ex-
will make the exhibits introduced at emption.
the hearing available to the public for
inspection or commercial copy order. § 801.51 National defense and foreign
policy secrets.
§ 801.32 Accident reports. Pursuant to 5 U.S.C. 552(b)(1), na-
(a) The NTSB will report the facts, tional defense and foreign policy se-
conditions, and circumstances, and its crets established by Executive Order,
determination of the probable causes of as well as properly classified docu-
U.S. civil transportation accidents, in ments, are exempt from public disclo-
accordance with 49 U.S.C. 1131(e). sure. Requests to the NTSB for such
(b) These reports may be made avail- records will be transferred to the
able for public inspection in the source agency as appropriate, where
NTSB’s public reference room and/or such classified records are identified.
on the NTSB’s Web site, at http:// (See, e.g., Executive Order 12,958, as
www.ntsb.gov. amended on March 25, 2003.)
§ 801.52 Internal personnel rules and

Subpart E—Other Board practices of the NTSB.
Documents Pursuant to 5 U.S.C. 552(b)(2), the fol-
§ 801.40 The Board’s rules. lowing records are exempt from disclo-
sure under FOIA:
The NTSB’s rules are published in (a) Records relating solely to inter-
the Code of Federal Regulations as nal personnel rules and practices, in-
Parts 800 through 850 of Title 49. cluding memoranda pertaining to per-
§ 801.41 Reports to Congress. sonnel matters such as staffing poli-
cies, and procedures for the hiring,
The NTSB submits its annual report training, promotion, demotion, or dis-
to Congress each year, in accordance charge of employees, and management
with 49 U.S.C. 1117. The report will be plans, records, or proposals relating to
available on the NTSB’s Web site, labor-management relations.
found at http://www.ntsb.gov. Interested (b) Records regarding:
parties may purchase the report from (1) Internal matters of a relatively
the Government Printing Office or re- trivial nature that have no significant
view it in the NTSB’s public reference public interest, and
room. All other reports or comments to (2) Predominantly internal matters,
Congress will be available in the the release of which would risk cir-
NTSB’s public reference room for in- cumvention of a statute or agency reg-
spection or by ordering a copy after ulation.
issuance.
§ 801.53 Records exempt by statute
Subpart F—Exemption From Public from disclosure.
Disclosure Pursuant to 5 U.S.C. 552(b)(3), the
NTSB will not disclose records specifi-
§ 801.50 Exemptions from disclosure. cally exempted from disclosure by stat-
Title 5, United States Code section ute (other than 5 U.S.C. 552(b)), pro-
552(a) and (b) exempt certain records vided that such statute:
from public disclosure. As stated in (a) Requires that the matters be
§ 801.2 of this title, the NTSB may withheld from the public in such man-
choose to make a discretionary release ner as to leave no discretion on the
of a record that is authorized to be issue, or
129
(b) Establishes particular criteria for intended for public release at a speci-
withholding or refers to particular fied future time, if premature disclo-
types of matters to be withheld. sure would be detrimental to orderly
processes of the NTSB; records of in-
§ 801.54 Trade secrets and commercial spections, investigations, and surveys
or financial information. pertaining to internal management of
Pursuant to 5 U.S.C. 552(b)(4), trade the NTSB; and matters that would not
secrets and items containing commer- be routinely disclosed in litigation but
cial or financial information that are which are likely to be the subject of
obtained from a person and are privi- litigation.
leged or confidential are exempt from
public disclosure. § 801.56 Unwarranted invasion of per-
sonal privacy.
§ 801.55 Interagency and intra-agency Pursuant to 5 U.S.C. 552(b)(6), any
exchanges. personal, medical, or similar file is ex-
(a) Pursuant to 5 U.S.C. 552(b)(5), any empt from public disclosure if its dis-
record prepared by an NTSB employee closure would harm the individual con-
for internal Government use is exempt cerned or would be a clearly unwar-
from public disclosure to the extent ranted invasion of the person’s per-
that it contains— sonal privacy.
(1) Opinions made in the course of de-
§ 801.57 Records compiled for law en-
veloping official action by the NTSB forcement purposes.
but not actually made a part of that of-
ficial action, or Pursuant to 5 U.S.C. 552(b)(7), any
(2) Information concerning any pend- records compiled for law or regulatory
ing NTSB proceeding, or similar mat- enforcement are exempt from public
ter, including any claim or other dis- disclosure to the extent that disclosure
pute to be resolved before a court of would interfere with enforcement,
law, administrative board, hearing offi- would be an unwarranted invasion of
cer, or contracting officer. privacy, would disclose the identity of
(b) The purpose of this section is to a confidential source, would disclose
protect the full and frank exchange of investigative procedures and practices,
ideas, views, and opinions necessary for or would endanger the life or security
the effective functioning of the NTSB. of law enforcement personnel.
These resources must be fully and read-
§ 801.58 Records for regulation of fi-
ily available to those officials upon nancial institutions.
whom the responsibility rests to take
official NTSB action. Its purpose is Pursuant to 5 U.S.C. 552(b)(8), records
also to protect against the premature compiled for agencies regulating or su-
disclosure of material that is in the de- pervising financial institutions are ex-
velopmental stage, if premature disclo- empt from public disclosure.
sure would be detrimental to the au- § 801.59 Geological records.
thorized and appropriate purposes for
which the material is being used, or if, Pursuant to 5 U.S.C. 552(b)(9), records
because of its tentative nature, the ma- concerning geological wells are exempt
terial is likely to be revised or modi- from public disclosure.
fied before it is officially presented to
the public. Subpart G—Fee Schedule
(c) Examples of materials covered by
this section include, but are not lim- § 801.60 Fee schedule.
ited to, staff papers containing advice, (a) Authority. Pursuant to 5 U.S.C.
opinions, or suggestions preliminary to 552(a)(4)(i) and 52 FR 10,012 (Mar. 27,
a decision or action; preliminary notes; 1987), the NTSB may charge certain
advance information on such things as fees for processing requests under the
proposed plans to procure, lease, or FOIA in accordance with paragraph (c)
otherwise hire and dispose of mate- of this section, except where fees are
rials, real estate, or facilities; docu- limited under paragraph (d) of this sec-
ments exchanged in preparation for an- tion, or where a waiver or reduction of
ticipated legal proceedings; material fees is granted under paragraph (e) of
130
this section. The NTSB may collect all public. For ‘‘freelance’’ journalists to
applicable fees before sending copies of be regarded as working for a news orga-
requested records to a requester. A re- nization, they must demonstrate a
quester must pay fees in accordance solid basis for expecting publication
with the instructions provided on the through that organization (for exam-
invoice the FOIA Office sends to the re- ple, a journalist may submit a copy of
quester. a publication contract for which the
(b) Definitions. For purposes of this journalist needs NTSB records).
section: (6) Review means the examination of
(1) Commercial use request means a re- a record located in response to a re-
quest from or on behalf of a person who quest in order to determine whether
seeks information for a use or purpose any portion of it is exempt from disclo-
that furthers his or her commercial, sure. ‘‘Review’’ also includes proc-
trade, or profit interests. This includes essing the record(s) for disclosure,
the furtherance of commercial inter- which includes redacting and otherwise
ests through litigation. When it ap- preparing releasable records for disclo-
pears that the requester will use the sure. The NTSB may require review
requested records for a commercial costs even if the NTSB ultimately does
purpose, either because of the nature of not release the record(s).
the request or because the NTSB has (7) Search means the process of look-
reasonable cause to doubt a requester’s ing for and retrieving records or infor-
stated use, the NTSB shall provide the mation within the scope of a request.
requester with a reasonable oppor- ‘‘Search’’ includes page-by-page or
tunity to submit further clarification. line-by-line identification of informa-
(2) Direct costs means those expenses tion within records and also includes
that an agency actually incurs in reasonable efforts to locate and re-
searching for, reviewing, and dupli- trieve information from records main-
cating records in response to a FOIA tained in electronic form or format.
request. This includes the salaries of The NTSB will make an effort to con-
employees performing the work, as duct such searches in the least expen-
listed below, but does not include over- sive manner.
head expenses such as the costs of of- (c) Fees. In responding to FOIA re-
fice space. quests, the NTSB will charge the fol-
(3) Duplication means the copying of a lowing fees unless a waiver or reduc-
record, or of the information contained tion of fees has been granted under
in a record, in response to a FOIA re- paragraph (d) of this section:
quest. (1) Search. (i) The NTSB will charge
(4) Educational institution means a search fees for all requests, unless an
preschool, a public or private elemen- educational institution, a noncommer-
tary or secondary school, an institu- cial scientific institution, or a news
tion of undergraduate higher edu- media representative submits a request
cation, an institution of graduate high- containing adequate justification for
er education, an institution of profes- obtaining a fee waiver. These fees, how-
sional education, or an institution of ever, are subject to the limitations of
vocational education, that operates a paragraph (d) of this section. The
program of scholarly research. In order NTSB may charge for time spent
for a requester to demonstrate that searching even if the NTSB does not lo-
their request falls within the category cate any responsive record or if the
of an ‘‘educational institution,’’ the re- NTSB withholds the record(s) located
quester must show that the request is because such record(s) are exempt from
authorized by the qualifying institu- disclosure.
tion and that the requester does not (ii) The NTSB will charge $4.00 for
seek the records for commercial use, each quarter of an hour spent by cler-
but only to further scholarly research. ical personnel in searching for and re-
(5) Representative of the news media or trieving a requested record. Where
‘‘news media requester’’ means any clerical personnel cannot entirely per-
person actively gathering news for an form a search and retrieval (for exam-
entity that is organized and operated ple, where the identification of records
to publish or broadcast news to the within the scope of a request requires
131
the assistance of professional per- cational institutions or representatives

sonnel), the applicable fee will instead of the news media.
be $7.00 for each quarter hour of search (3) The NTSB will not charge a
time spent by professional personnel. search fee or review fee for a quarter-
Where a request requires the time of hour period unless more than half of
managerial personnel, the fee will be that period is required for search or re-
$10.25 for each quarter hour of time view.
spent by these personnel. (4) Except for requesters seeking
(2) Duplication. The NTSB will charge records for commercial use, the NTSB
duplication fees, subject to the limita- will provide the following items with-
tions of paragraph (d) of this section. out charge:
(i) The NTSB utilizes the services of (i) The first 100 pages of duplication
a commercial reproduction facility for (or the cost equivalent) of a record; and
requests for duplicates of NTSB public (ii) The first two hours of search (or
dockets and publications. the cost equivalent) for a record.
(ii) Regarding the reproduction of (5) Whenever the total fee calculated
non-public records in response to a under paragraph (c) of this section is
FOIA request, the NTSB will charge $14.00 or less for any request, the NTSB
$0.10 per page for the duplication of a will not charge a fee.
standard-size paper record. For other (6) When the NTSB’s FOIA Office de-
forms of duplication, the NTSB will termines or estimates that fees to be
charge the direct costs of the duplica- charged under this section will amount
tion. to more than $25.00, the Office will no-
(iii) Where the NTSB certifies tify the requester of the actual or esti-
records upon request, the NTSB will mated amount of the fees, unless the
charge the direct cost of certification. requester has indicated a willingness to
(3) Review. The NTSB will charge fees pay fees as high as those anticipated. If
for the initial review of a record to de- the FOIA Office is able to estimate
termine whether the record falls within only a portion of the expected fee, the
the scope of a request, or whether the FOIA Office will advise the requester
record is exempt from disclosure. Such that the estimated fee may be only a
fees will be charged to requesters who portion of the total fee. Where the
make a request for commercial pur- FOIA Office notifies a requester that
poses. The NTSB will not charge for the actual or estimated fees will exceed
subsequent review of the request and $25.00, the NTSB will not expend addi-
responsive record; for example, in gen- tional agency resources on the request
eral, the NTSB will not charge addi- until the requester agrees in writing to
tional fees for review at the adminis- pay the anticipated total fee. In cir-
trative appeal level when the NTSB has cumstances involving a total fee that
already applied an exemption. The will exceed $250.00, the NTSB may re-
NTSB will charge review fees at the quire the requester to make an advance
same rate as those charged for a search payment or deposit of a specific
under paragraph (c)(1)(ii), above. amount before beginning to process the
(c) Limitations on charging fees. For request.
purposes of this section: (7) The NTSB may charge interest on
(1) The NTSB will not charge a fee any unpaid bill starting on the 31st day
for notices, decisions, orders, etc. pro- following the date of billing the re-
vided to persons acting as parties in quester. Interest charges will be as-
the investigation, or where required by sessed at the rate provided at 31 U.S.C.
law to be served on a party to any pro- 3717 and will accrue from the date of
ceeding or matter before the NTSB. the billing until the NTSB receives
Likewise, the NTSB will not charge payment. The NTSB shall follow the
fees for requests made by family mem- provisions of the Debt Collection Act of
bers of accident victims, when the 1982 (Pub. L. 97–365, 96 Stat. 1749), as
NTSB has investigated the accident amended, and its administrative proce-
that is the subject of the FOIA request. dures, including the use of consumer
(2) The NTSB will not charge a reporting agencies, collection agencies,
search fee for requests from edu- and offset.
132
(8) Where a requester has previously stantially identical form, would not be
failed to pay a properly charged FOIA as likely to contribute to such under-
fee to the NTSB within 30 days of the standing where nothing new would be
date of billing, the NTSB may require added to the public’s understanding.
the requester to pay the full amount (iii) Whether disclosure of the re-
due, plus any applicable interest, and quested information would contribute
to make an advance payment of the to the understanding of a reasonably
full amount of any anticipated fee, be- broad audience of persons interested in
fore the NTSB begins to process a new the subject, as opposed to the indi-
request or continues to process a pend- vidual understanding of the requester.
ing request from that requester. The NTSB will consider a requester’s
(9) Where the NTSB reasonably be- expertise in the subject area and abil-
lieves that a requester or group of re- ity to effectively convey information
questers acting together is attempting to the public.
to divide a request into multiple series (iv) Whether the disclosure is likely
of requests for the purpose of avoiding to enhance the public’s understanding
fees, the NTSB may aggregate those re- of government operations or activities.
quests and charge accordingly. (3) In determining whether the re-
(d) Requirements for waiver or reduc- quester is primarily in the commercial
tion of fees. For fee purposes, the NTSB interest of the requester, the NTSB
will determine, whenever reasonably will consider the following factors:
possible, the use to which a requester (i) The existence and magnitude of
will put the requested records. any commercial interest the requester
(1) The NTSB will furnish records re- may have, or of any person on whose
sponsive to a request without charge, behalf the requester may be acting.
or at a reduced charge, where the The NTSB will provide requesters with
NTSB determines, based on all avail- an opportunity in the administrative
able information, that the requester process to submit explanatory informa-
has shown that: tion regarding this consideration.
(i) Disclosure of the requested infor- (ii) Whether the commercial interest
mation is in the public interest because is greater in magnitude than any pub-
it is likely to contribute significantly lic interest in disclosure.
to public understanding of the oper- (4) Additionally, the NTSB may, at
ations of activities of the government, its discretion, waive publication, repro-
and duction, and search fees for qualifying
(ii) Disclosure of the requested infor- foreign countries, international organi-
mation is not primarily in the commer- zations, nonprofit public safety enti-
cial interest or for the commercial use ties, State and Federal transportation
of the requester. agencies, and colleges and universities,
(2) In determining whether disclosure after approval by the Chief, Records
of the requested information is in the Management Division.
public interest, the NTSB will consider (5) Where only some of the records to
the following factors: be released satisfy the requirements for
(i) Whether the subject of the re- a waiver of fees, the NTSB will grant a
quested records concerns identifiable waiver for those particular records.
operations or activities of the federal (6) Requests for the waiver or reduc-
government, with a connection that is tion of fees should address the factors
direct and clear, and not remote or at- listed in paragraphs (e)(2) and (e)(3) of
tenuated. In this regard, the NTSB will this section, insofar as they apply to
consider whether a requester’s use of each request. The NTSB will exercise
the documents would enhance trans- its discretion to consider the cost-ef-
portation safety or contribute to the fectiveness of its use of administrative
NTSB’s programs. resources in determining whether to
(ii) Whether the portions of a record grant waivers or reductions of fees.
subject to disclosure are meaningfully (e) Services available free of charge.
informative about government oper- (1) The following documents are
ations or activities. The disclosure of available without commercial repro-
information already in the public do- duction cost until limited supplies are
main, in either a duplicative or sub- exhausted:
133
(i) Press releases; 802.11 Agency review of requests for correc-

(ii) Safety Board regulations (Chap- tion or amendment of record.
ter VIII of Title 49, Code of Federal 802.12 Initial adverse agency determination
on correction or amendment.
Regulations);
(iii) Indexes to initial decisions, Subpart E—Review of Initial Adverse
Board orders, opinion and orders, and Determination
staff manuals and instructions;
(iv) Safety recommendations; and 802.14 Review procedure and judicial review.
(v) NTSB Annual Reports.
(2) The NTSB public Web site, located Subpart F—Fees
at http://www.ntsb.gov, also includes an 802.15 Fees.
e-mail subscription service for press re-
leases, safety recommendations, and Subpart G—Penalties
other announcements.
802.18 Penalties.
§ 801.61 Appeals of fee determinations.
Subpart H—Specific Exemptions
Requesters seeking an appeal of the
FOIA Officer’s fee or fee waiver deter- 802.20 Security records.
mination must send a written appeal to AUTHORITY: Privacy Act of 1974, Pub. L. 93–
the NTSB’s Managing Director within 579, 88 Stat. 1896 (5 U.S.C. 552a); Independent
20 days. The NTSB’s Managing Direc- Safety Board Act of 1974, Pub. L. 93–633, 88
tor will determine whether to grant or Stat. 2166 (49 U.S.C. 1901 et seq.); and Free-
deny any appeal made pursuant to dom of Information Act, Pub. L. 93–502, No-
vember 21, 1974, amending 5 U.S.C. 552.
§ 801.21 within 20 working days (exclud-
ing Saturdays, Sundays, and legal pub- SOURCE: 41 FR 22358, June 3, 1976, unless
lic holidays) after receipt of such ap- otherwise noted.
peal, except that this time limit may
be extended for as many as 10 addi- Subpart A—Applicability and
tional working days, in accordance Policy
with § 801.23.
§ 802.1 Purpose and scope.
PART 802—RULES IMPLEMENTING The purpose of this part is to imple-
THE PRIVACY ACT OF 1974 ment the provisions of 5 U.S.C. 552a
with respect to the availability to an
Subpart A—Applicability and Policy individual of records of the National
Transportation Safety Board (NTSB)
Sec. maintained on individuals. NTSB pol-
802.1 Purpose and scope.
icy encompasses the safeguarding of in-
802.2 Definitions.
dividual privacy from any misuse of
Subpart B—Initial Procedures and Federal records and the provision of ac-
Requirements cess to individuals to NTSB records
concerning them, except where such
802.5 Procedures for requests pertaining to access is in conflict with the Freedom
individual records in a record system. of Information Act, or other statute.
802.6 Types of requests and specification of
records. [41 FR 39758, Sept. 16, 1976]
802.7 Requests: How, where, and when pre-
sented; verification of identity of indi- § 802.2 Definitions.
viduals making requests; accompanying In this part:
persons; and procedures for acknowledge-
ment of requests.
Board means the five Members of the
National Transportation Safety Board,
Subpart C—Initial Determinations or a quorum thereof;
Individual means a citizen of the
802.8 Disclosure of requested information. United States or an alien lawfully ad-
mitted for permanent residence;
Subpart D—Correction or Amending the
National Transportation Safety Board
Record
(NTSB) means the agency set up under
802.10 Request for correction or amendment the Independent Safety Board Act of
to record. 1974;
134
Record means any item, collection, or dividual or by some identifying num-

grouping of information about an indi- ber, symbol, or other particular as-
vidual that is maintained under the signed to such individual. Written con-
control of the NTSB pursuant to Fed- sent is not required if the disclosure is:
eral law or in connection with the (a) To officers or employees of the
transaction of public business, includ- NTSB who require the information in
ing, but not limited to, education, fi- the official performance of their duties;
nancial transactions, medical history, (b) Required under 5 U.S.C. 552, Free-
and criminal or employment history, dom of Information Act;
and that contains a name, or an identi- (c) For a routine use compatible with
fying number, symbol, or other identi- the purpose for which it was collected;
fying particular assigned to an indi- (d) To the Bureau of the Census for
vidual, such as a finger or voice im- uses pursuant to title 13, U.S.C.;
print or photograph; (e) To a recipient who has provided
Routine use means the use of such the NTSB with advance adequate as-
record for a purpose compatible with surance that the record will be used
the purpose for which it was collected, solely as a statistical research or re-
including, but not limited to, referral porting record and that it is to be
to law enforcement agencies of viola- transferred in a form not individually
tions of the law and for discovery pur- identifiable; or
poses ordered by a court referral to po- (f) Pursuant to the order of a court of
tential employers, and for security competent jurisdiction.
clearance;
Statistical record means a record in a § 802.6 Types of requests and specifica-
system of records maintained for station of records.
tistical research or reporting purposes (a) Types of requests. An individual
only and which is not used wholly or may make the following request re-
partially in any determination con- specting records about himself main-
cerning an identifiable individual; tained by NTSB in any system of
System Manager means the agency of- records subject to the Act:
ficial who is responsible for the policies (1) Whether information concerning
and practices of his particular system himself is contained in any system of
or systems of record, as specified in the records.
NTSB notices of systems or records; (2) Access to a record concerning
and himself. Such request may include a re-
System of records means a group of quest to review the record and/or ob-
any records under the control of the tain a copy of all or any portion there-
NTSB from which information is re- of.
trieved by the name of an individual or (3) Correction or amendment of a
by some identifying number, symbol, record concerning himself.
or other identifying particular assigned (4) Accounting of disclosure to any
to the individual, whether presently in other person or Government agency of
existence or set up in the future. any record concerning himself con-
tained in any system of records con-
Subpart B—Initial Procedures and trolled by NTSB, except: (i) Disclosures
Requirements made pursuant to the FOIA; (ii) disclo-
sures made within the NTSB; (iii) dis-
§ 802.5 Procedures for requests per- closures made to another Government
taining to individual records in a agency or instrumentality for an au-
record system. thorized law enforcement activity pur-
The NTSB may not disclose any suant to subsection (b)(7) of the Act;
record to any person or other agency, and (iv) disclosures expressly exempted
except pursuant to a written request by NTSB from the requirements of sub-
by, or with the prior written consent section (c)(3) of the Act, pursuant to
of, the individual to whom the record subsection (k) thereof.
pertains, provided the record under the (b) Specification of records. All re-
control of the NTSB is maintained in a quests for access to records must rea-
system of records from which informa- sonably describe the system of records
tion is retrieved by the name of the in- and the individual’s record within the
135
system of records in sufficient detail to Administration, or his designee, shall

permit identification of the requested constitute receipt.
record. Specific information regarding (c) Requests made in person. Requests
the system name, the individual’s full may be made in person during official
name, and other information helpful in working hours of the NTSB at the of-
identifying the record or records shall fice where the record is located, as list-
be included. Requests for correction or ed in the ‘‘Notice of Systems of
amendment of records shall, in addi- Records’’ for the system in which the
tion, specify the particular record in- record is contained.
volved, state the nature of the correc- (d) Verification of identity of requester.
tion or amendment sought, and furnish (1) For written requests, the request-
justification for the correction or er’s identity must be verified before
amendment. the release of any record, unless ex-
(c) Inadequate identification of record. empted under the FOIA. This may be
Requests which do not contain infor- accomplished by adequate proof of
mation sufficient to identify the record identity in the form of a driver’s li-
requested will be returned promptly to cense or other acceptable item of the
the requester, with a notice indicating same type.
what information is lacking. Individ- (2) For requests in person, the re-
uals making requests in person will be quester’s identity may be established
informed of any deficiency in the speci- by a single document bearing a photo-
fication of the records at the time the graph (such as a passport or identifica-
request is made. Individuals making tion badge) or by two items of identi-
requests in writing will be notified of fication containing name, address, and
any such deficiency when their request signature (such as a driver’s license or
is acknowledged. credit card).
(3) Where a request is made for repro-
§ 802.7 Requests: How, where, and
when presented; verification of duced records which are to be delivered
identity of individuals making re- by mail, the request must include a no-
quests; accompanying persons; and tarized statement verifying the re-
procedures for acknowledgment of quester’s identity.
requests. (e) Inability to provide requisite docu-
(a) Requests—general. Requests may mentation of identity. A requester who
be made in person or in writing. Assist- cannot provide the necessary docu-
ance regarding requests or other mat- mentation of identity may provide a
ters relating to the Act may be ob- notarized statement, swearing or af-
tained by writing to the Director, Bu- firming his identity and the fact that
reau of Administration, National he is aware of the penalties for false
Transportation Safety Board, 800 Inde- statement imposed pursuant to 18
pendence Avenue, SW., Washington, DC U.S.C. 1001, and subsection (i)(3) of the
20594. The Director, Bureau of Adminis- Act. Where requested, the Director, Bu-
tration, or his designee, on request, reau of Administration, or his des-
will aid an individual in preparing an ignee, will assist the requester in for-
amendment to the record or to an ap- mulating the necessary document.
peal following denial of a request to (f) Accompanying persons. A requester
amend the record, pursuant to sub- may wish to have a person of his choice
section (f)(4) of the Act. accompany him to review the re-
(b) Written requests. Written requests quested record. Prior to the release of
shall be made to the Director, Bureau the record, the NTSB will require the
of Administration at the address given requester to furnish the Director, Bu-
above, and shall clearly state on the reau of Administration or his designee,
envelope and on the request itself, with a written statement authorizing
‘‘Privacy Act Request,’’ ‘‘Privacy Act disclosure of the record in the accom-
Statement of Disagreement,’’ ‘‘Privacy panying person’s presence.
Act Disclosure Accounting Request,’’ (g) Acknowledgment of requests. Writ-
‘‘Appeal from Privacy Act Adverse De- ten requests to verify the existence of,
termination,’’ or ‘‘Privacy Act Correc- to obtain access to, or to correct or
tion Request,’’ as the case may be. Ac- amend records about the requester
tual receipt by the Director, Bureau of maintained by NTSB in any system of
136
records subject to the Act, shall be ac- information needed to clarify the re-
knowledged in writing by the Director, quest; or
Bureau of Administration, or his des- (2) That the system of records identi-
ignee, within 3 working days after the fied does not include a record retriev-
date of actual receipt of the request by able by the requester’s name or other
the Director, Bureau of Administra- identifying particulars.
tion, or his designee. The acknowledg- (c) The System Manager shall advise
ment shall advise the requester of the the requester within 10 working days
need for any additional information to after actual receipt of the request by
process the request. Wherever prac- the Director, Bureau of Administra-
ticable, the acknowledgment shall no- tion, or his designee, that the request
tify the individual whether his request for access has been denied, and the rea-
has been granted or denied. When a re- son for the denial, or that the deter-
quest is made in person, every effort mination has been made to grant the
will be made to determine immediately request, either in whole or in part, in
whether the request will be granted. If which case the relevant information
such decision cannot be made, the re- will be provided.
quest will be processed in the same [41 FR 22358, June 3, 1976, as amended at 41
manner as a written request. Records FR 43154, Sept. 30, 1976]
will be made available for immediate
inspection whenever possible. Subpart D—Correction or
[41 FR 22358, June 3, 1976, as amended at 41 Amending the Record
FR 43154, Sept. 30, 1976]
§ 802.10 Request for correction or
amendment to record.
Subpart C—Initial Determinations
All requests for correcting or amend-
§ 802.8 Disclosure of requested infor- ing records shall be made in writing to
mation. the Director, Bureau of Administra-
(a) The System Manager may ini- tion, National Transportation Safety
tially determine that the request be Board, 800 Independence Avenue., SW.,
granted. If so, the individual making Washington, DC 20594, and shall be
the request shall be notified orally, or deemed received upon actual receipt by
in writing, and the notice shall include: the Director, Bureau of Administra-
(1) A brief description of the information. The request shall clearly be
tion to be made available; marked on the envelope and in the let-
(2) The time and place where the ter with the legend that it is a ‘‘Pri-
record may be inspected, or alter- vacy Act Correction Request.’’ The re-
natively, the procedure for delivery by quest must reasonably set forth the
mail to the requesting party; portion of the record which the indi-
(3) The estimated cost for furnishing vidual contends is not accurate, rel-
copies of the record; evant, timely, or complete.
(4) The requirements for verification [41 FR 22358, June 3, 1976, as amended at 41
of identity; FR 43154, Sept. 30, 1976]
(5) The requirements for authorizing
discussion of the record in the presence § 802.11 Agency review of requests for
correction or amendment of record.
of an accompanying person; and
(6) Any additional requirements Within 10 working days after actual
needed to grant access to a specific sys- receipt of the request by the Director,
tem of records or record. Bureau of Administration, or his des-
(b) Within 10 working days after ac- ignee, to correct or amend the record,
tual receipt of the request by the Di- the System Manager shall either make
rector, Bureau of Administration, or the correction in whole or in part, or
his designee, in appropriate cases, the inform the individual of the refusal to
requester will be informed: correct or amend the record as re-
(1) That the request does not reason- quested, and shall present the reasons
ably describe the system of records or for any denials.
record sought to permit its identifica- [41 FR 22358, June 3, 1976, as amended at 41
tion, and shall set forth the additional FR 43154, Sept. 30, 1976]
137
§ 802.12 Initial adverse agency deter- (c)(1) Review of denial of access. If the
mination on correction or amend- appeal upholds the denial of access to
ment. records, the Board shall: Notify the re-
If the System Manager determines quester in writing, explaining the
that the record should not be corrected Board’s determination; state that the
or amended in whole or in part, he will denial is a final agency action and that
forthwith make such finding in writ- judicial review is available in a district
ing, after consulting with the General court of the United States in the dis-
Counsel, or his designee. The requester trict where the requester resides or has
shall be notified of the refusal to cor- his principal place of business, or
rect or amend the record. The notifica- where the agency records are located,
tion shall be in writing, signed by the or in the District of Columbia; and re-
System Manager, and shall include— quest a filing with the Board of a con-
cise statement enumerating the rea-
(a) The reason for the denial;
sons for the requester’s disagreement
(b) The name and title or position of with the denial, pursuant to subsection
each person responsible for the denial (g) of the Act.
of the request; (2) Review of denial of correction or
(c) The appeal procedures for the in- amendment. If the appeal upholds the
dividual for a review of the denial; and denial in whole or in part for correc-
(d) Notice that the denial from the tion or amendment of the record, the
System Manager is appealable within same notification and judicial review
30 days from the receipt thereof by the privileges described in paragraph (c)(1)
requester to the Board. of this section shall apply.
The System Manager is allotted 10 (d) If the denial is reversed on appeal,
working days (or within such extended the Board shall notify the requester in
period as is provided in the section con- writing of the reversal. The notice
cerning ‘‘unusual circumstances’’ infra) shall include a brief statement out-
to respond to the request for review. If lining those portions of the individual’s
the requester does not receive an an- record which were not accurate, rel-
swer within such time, the delay shall evant, timely, or complete, and correc-
constitute a denial of the request and tions of the record which were made,
shall permit the requester immediately and shall provide the individual with a
to appeal to the Board, or to a district courtesy copy of the corrected record.
court. (e) Copies of all appeals and written
determinations will be furnished by the
System Manager to the Board.
Subpart E—Review of Initial (f) In unusual circumstances, time
Adverse Determination limits may be extended by not more
than 10 working days by written notice
§ 802.14 Review procedure and judicial to the individual making the request.
review.
The notice shall include the reasons for
(a) A requester may appeal from any the extension and the date on which a
adverse determination within 30 days determination is expected to be forth-
after actual receipt of a denial from coming. ‘‘Unusual circumstances’’ as
the System Manager. The appeal must used in this section shall include cir-
be in writing addressed to the Chair- cumstances where a search and collec-
man, National Transportation Safety tion of the requested records from field
Board, 800 Independence Avenue, SW., offices or other establishments are re-
Washington, DC 20594, and shall con- quired, cases where a voluminous
tain a statement on the envelope and amount of data is involved, and cases
in the appeal: ‘‘Appeal from Privacy where consultations are required with
Act Adverse Determination.’’ other agencies or with others having a
(b) The Board shall make a deter- substantial interest in the determina-
mination with respect to the appeal tion of the request.
within 30 working days after the actual (g) Statements of Disagreement. (1)
receipt of the appeal by the Chairman, Written Statements of Disagreement
except as provided for in ‘‘unusual cir- may be furnished by the individual
cumstances’’ infra. within 30 working days of the date of
138
actual receipt of the final adverse de- (i) Disclosure to others of records con-
termination of the Board. They shall cerning individuals. Neither the Board
be addressed to the Director, Bureau of nor other NTSB personnel shall dis-
Administration, National Transpor- close any record which is contained in
tation Safety Board, 800 Independence a system of records maintained by
Avenue, SW., Washington, DC 20594, NTSB, by any means of communica-
and shall be clearly marked, both on tion, including oral communication, to
the statement and on the envelope, any person, or to another Government
‘‘Privacy Act Statement of Disagree- agency, except pursuant to a written
ment.’’ request by, or with the prior written
(2) The Director, Bureau of Adminis- consent, of the individual to whom the
tration, or his designee, shall be re- record pertains, unless disclosure of
sponsible for ensuring that: the record is:
(i) The Statement of Disagreement is (1) To the Board and NTSB personnel
included in the system of records in who have a need for the record in the
which the disputed item of information performance of their duties;
is maintained; and (2) Required under the FOIA;
(3) For a routine use published in the
(ii) The original record is marked to
FEDERAL REGISTER;
indicate the information disputed, the
(4) To the Bureau of the Census for
existence of the Statement of Disagree-
purposes of planning or carrying out a
ment, and its location within the rel- census or survey, or related activity
evant system of records. pursuant to the provisions of title 13 of
(3) The Director, Bureau of Adminis- the U.S.C.;
tration, or his designee, may, if he (5) To a recipient who has provided
deems it appropriate, prepare a concise NTSB with adequate advance written
Statement of Explanation indicating assurance that the record will be used
why the requested amendments or cor- solely as a statistical research or re-
rections were not made. Such State- porting record and that the record is
ment of Explanation shall be included transferred in a form that is not identi-
in the system of records in the same fiable with respect to individuals; 1
manner as the Statement of Disagree- (6) To the National Archives of the
ment. Courtesy copies of the NTSB United States as a record which has
Statement of Explanation and the no- sufficient historical or other value to
tation of dispute, as marked on the warrant its continued preservation by
original record, shall be furnished to the U.S. Government, or to the Admin-
the individual who requested correc- istrator of the General Services Admin-
tion or amendment of the record. istration, or his designee, for evalua-
(h) Notices of correction and/or amend- tion to determine whether the record
ment, or dispute. After a record has been has such value;
corrected or a Statement of Disagree- (7) To another agency or to an instru-
ment has been filed, the Director, Bu- mentality of any governmental juris-
reau of Administration, or his des- diction within or under the control of
ignee, shall within 30 working days the United States for a civil or crimi-
thereof, advise all previous recipients nal law enforcement activity if the ac-
of the affected record as to the correc- tivity is authorized by law, and if the
tion or the filing of the Statement of head of the agency or instrumentality
Disagreement. The identity of such re- has made a written request to NTSB
cipients shall be determined pursuant specifying the particular portion of the
to an accounting of disclosures re-
quired by the Act or any other ac- 1 The advance written statement of assur-
counting previously made. Any disclo- ance shall state the purpose for which the
sure of disputed information occurring record is requested and certify that it will be
after a Statement of Disagreement has used only for statistical purposes. Prior to
release under this paragraph, the record
been filed shall clearly identify the
shall be stripped of all personally identifi-
specific information disputed and shall able information and reviewed to ensure that
be accompanied by a copy of the State- the identity of any individual cannot reason-
ment of Disagreement and a copy of ably be determined by combining two or
any NTSB Statement of Explanation. more statistical records.
139
record desired and the law enforcement the compelling circumstances justi-
activity for which the record is fying the disclosure.
sought; 2 [41 FR 22358, June 3, 1976, as amended at 41
(8) To any person upon a showing of FR 43154, Sept. 30, 1976]
compelling circumstances affecting the
health or safety of any individual;
Subpart F—Fees
(9) To either House of Congress or, to
the extent of matter within its juris- § 802.15 Fees.
diction, to any committee, or sub-
No fees shall be charged for providing
committee thereof, or to any joint
the first copy of a record, or any por-
committee of the Congress, or to any
tion thereof, to individuals to whom
subcommittee of such joint committee;
the record pertains. The fee schedule
(10) To the Comptroller General, or for other records is the same as that
any of his authorized representatives, appearing in the appendix to part 801 of
in the course of the performance of the this chapter, implementing the FOIA,
duties of the General Accounting Of- as amended from time to time, except
fice; or that the cost of any search for and re-
(11) Pursuant to the order of a court view of the record shall not be included
of competent jurisdiction. in any fee under this Act, pursuant to
(j) Notices of subpoenas. When records subsection (f)(5) of the Act.
concerning an individual are subpoe-
naed or otherwise disclosed pursuant to
court order, the NTSB officer or em-
Subpart G—Penalties
ployee served with the subpoena shall § 802.18 Penalties.
be responsible for assuring that the in-
dividual is notified of the disclosure (a) An individual may bring a civil
within 5 days after such subpoena or action against the NTSB to correct or
other order becomes a matter of public amend the record, or where there is a
record. The notice shall be mailed to refusal to comply with an individual
the last known address of the indi- request or failure to maintain any
vidual and shall contain the following record with accuracy, relevance, time-
information: (1) The date the subpoena liness and completeness, so as to guar-
is returnable; (2) the court in which it antee fairness, or failure to comply
is returnable; (3) the name and number with any other provision of 5 U.S.C.
of the case or proceeding; and (4) the 552a. The court may order the correc-
nature of the information sought. tion or amendment. It may assess
against the United States reasonable
(k) Notices of emergency disclosures.
attorney fees and other costs, or may
When information concerning an indi-
enjoin the NTSB from withholding the
vidual has been disclosed to any person
records and order the production to the
under compelling circumstances affect-
complainant, and it may assess attor-
ing health or safety, the NTSB officer
ney fees and costs.
or employee who made or authorized
(b) Where it is determined that the
the disclosure shall notify the indi-
action was willful or intentional with
vidual at his last known address within
respect to 5 U.S.C. 552(g)(1) (c) or (d),
5 days of the disclosure. The notice
the United States shall be liable for the
shall contain the following informa-
actual damages sustained, but in no
tion: (1) The nature of the information
case less than the sum of $1,000 and the
disclosed; (2) the person or agency to
costs of the action with attorney fees.
whom the information was disclosed;
(c) Criminal penalties may be im-
(3) the date of the disclosure; and (4)
posed against an officer or employee of
the NTSB who fully discloses material
2 A record may be disclosed to a law en-
which he knows is prohibited from dis-
forcement agency at the initiative of NTSB closure, or who willfully maintains a
if criminal conduct is suspected, provided
that such disclosure has been established as
system of records without meeting the
a routine use by publication in the FEDERAL notice requirements, or who knowingly
REGISTER, and the instance of misconduct is and willfully requests or obtains any
directly related to the purpose for which the record concerning an individual from
record is maintained. an agency under false pretenses. These
140
offenses shall be misdemeanors with a

fine not to exceed $5,000.
Subpart H—Specific Exemptions

§ 802.20 Security records.
Pursuant to, and limited by, 5 U.S.C.
552a(k)(5), the NTSB’s system of
records, which contains the Security
Records of NTSB employees, prospec-
tive employees, and potential contrac-
tors, shall be exempt from disclosure of
the material and the NTSB’s handling
thereof under subsections (d), (e)(1) and
(e)(4) (H) and (I) of 5 U.S.C. 552a.
PART 803—OFFICIAL SEAL

[43 FR 36454, Aug. 17, 1978]
Sec. § 803.3 Authority to affix Seal.
803.1 Description.
803.3 Authority to affix Seal. (a) The Seal shall be in the custody
803.5 Use of the Seal. and control of the Director, Bureau of
Administration of the Board.
AUTHORITY: Sec. 303(c)(2), Independent
(b) The Director, Bureau of Adminis-
Safety Board Act of 1974, Pub. L. 93–633, 88
Stat. 2168 (49 U.S.C. 1902(c)(2)).
tration may delegate and authorize re-
delegations of this authority.
§ 803.1 Description. [40 FR 30238, July 17, 1975, as amended at 41
The official seal of the National FR 39758, Sept. 16, 1976]
Transportation Safety Board is de-
§ 803.5 Use of the Seal.
scribed as follows: An American bald
eagle with wings displayed, holding in (a) The Seal is the official emblem of
his dexter (right) talon an olive branch the Board and its use is therefore per-
and in his sinister (left) talon, a bundle mitted only as provided in this part.
of 13 arrows; above his head is a scroll (b) Use by any person or organization
inscribed ‘‘E Pluribus Unum,’’ bearing outside of the Board may be made only
a shield with vertical stripes of alter- with the Board’s prior written ap-
nating white and red, crowned by a proval.
field of blue, all within an encircling (c) Requests by any person or organi-
zation outside of the Board for permis-
inscription ‘‘National Transportation
sion to use the Seal must be made in
Safety Board.’’ When illustrated in
writing to Director, Bureau of Admin-
color, the background is white. The
istration, National Transportation
wings, the body, and the upper portion Safety Board, 800 Independence Ave-
of the legs of the eagle are shades of nue, SW., Washington, DC 20594. The
brown; the head, neck, and tail are request must specify in detail the exact
white; the beak, feet, and lower portion use to be made. Any permission grant-
of the legs are gold. The inscription on ed shall apply only to the specific use
the scroll is black. The encircling infor which it was granted.
scription is the same shade of gold as (d) Use of the Seal shall be essen-
the eagle’s beak. The arrows and the tially for informational purposes. The
olive branch are a lighter shade of gold. Seal may not be used on any article or
The red and blue of the shield are na- in any manner which may discredit the
tional flag red and blue. The official Seal or reflect unfavorably upon the
seal of the Board, in black and white, Board, or which implies Board endorse-
appears below: ment of commercial products or serv-
ices, or of the user’s or users’ policies
or activities. Specifically, permission
141
EC01AU91.227</GPH>
Pt. 804 49 CFR Ch. VIII (10–1–07 Edition)
may not be granted under this section § 804.1 Applicability.

for nonofficial use— (a) This part implements the provi-
(1) On souvenir or novelty items of an sions of the Government in the Sun-
expendable nature; shine Act (5 U.S.C. 552b). These proce-
(2) On toys, gifts, or premiums; dures apply to meetings, as defined
(3) As a letterhead design; herein, of the Members of the National
(4) On menus, matchbook covers, cal- Transportation Safety Board (NTSB).
endars, or similar items; (b) Requests for all documents other
(5) To adorn civilian clothing; or than the transcripts, recordings, and
(6) On athletic clothing or equip- minutes described in § 804.9 shall con-
ment. tinue to be governed by part 801 of the
(e) Where necessary to avoid any pro- NTSB regulations (49 CFR part 801).
hibited implication or confusion as to
§ 804.2 Policy.
the Board’s association with the user
or users, an appropriate legend will be It is the policy of the NTSB to pro-
prescribed by the Board for prominent vide the public with the fullest prac-
display in connection with the per- ticable information regarding the deci-
mitted use. sionmaking processes of the Board,
(f) Falsely making, forging, counter- while protecting the rights of individ-
feiting, mutilating, or altering the uals and the ability of the Board to dis-
charge its statutory functions and re-
Seal, or knowingly using or possessing
sponsibilities. The public is invited to
with fraudulent intent any altered Seal
attend but not to participate in open
is punishable under section 506 of Title
meetings.
18, U.S.C.
[40 FR 30238, July 17, 1975, as amended at 41 § 804.3 Definitions.
FR 39758, Sept. 16, 1976] As used in this part: Meeting means
the deliberations of three or more
PART 804—RULES IMPLEMENTING Members where such deliberations de-
THE GOVERNMENT IN THE SUN- termine or result in the joint conduct
SHINE ACT or disposition of official NTSB busi-
ness, and includes conference telephone
calls otherwise coming within the defi-
Sec.
nition. A meeting does not include:
804.2 Policy.
(a) Notation voting or similar consid-
804.3 Definitions.
eration of business, whether by circula-
804.4 Open meetings requirement.
tion of material to the Members indi-
804.5 Grounds on which meetings may be vidually in writing or by a polling of
closed or information may be withheld. the Members individually by tele-
804.6 Procedures for closing meetings, or phone.
withholding information, and requests by (b) Deliberations by three or more
affected persons to close a meeting. Members (1) to open or to close a meet-
804.7 Procedures for public announcement ing or to release or to withhold infor-
of meetings. mation pursuant to § 804.6, (2) to call a
804.8 Changes following public announce- meeting on less than seven days’ notice
ment. as permitted by § 804.7(b), or (3) to
804.9 Transcripts, recordings, or minutes of change the subject matter or the deter-
closed meetings. mination to open or to close a publicly
804.10 Availability and retention of tran- announced meeting under § 804.8(b).
scripts, recordings, and minutes, and ap- (c) An internal session attended by
plicable fees.
three or more Members for which the
AUTHORITY: Government in the Sunshine sole purpose is to have the staff brief
Act, Pub. L. 94–409, 90 Stat. 1241 (5 U.S.C. the Board concerning an accident, inci-
552b); Independent Safety Board Act of 1974, dent, or safety problem.
Pub. L. 93–633, 88 Stat. 2166 (49 U.S.C. 1901 et Member means an individual duly ap-
seq.). pointed and confirmed to the collegial
SOURCE: 42 FR 13284, Mar. 10, 1977, unless body, known as ‘‘the Board,’’ which
otherwise noted. heads the NTSB.
142
National Transportation Safety Board (g) Disclose investigatory records

(NTSB) means the agency set up under compiled for law enforcement purposes,
the Independent Safety Board Act of or information which if written would
1974. be contained in such records, but only
[42 FR 13284, Mar. 10, 1977, as amended at 42 to the extent that the production of
FR 31794, June 23, 1977] such records or information would:
(1) Interfere with enforcement pro-
§ 804.4 Open meetings requirement. ceedings;
Members shall not jointly conduct or (2) Deprive a person of a right to a
dispose of agency business other than fair trial or an impartial adjudication;
in accordance with this part. Except as (3) Constitute an unwarranted inva-
provided in § 804.5, every portion of sion of personal privacy;
every meeting of the Board shall be (4) Disclose the identity of a con-
open to public observation. fidential source and, in the case of a
record compiled by a criminal law en-
§ 804.5 Grounds on which meetings forcement authority in the course of a
may be closed or information may
be withheld. criminal investigation, or by an agency
conducting a lawful national security
Except in a case where the Board intelligence investigation, confidential
finds that the public interest requires information furnished only by the con-
otherwise, a meeting may be closed and fidential source;
information pertinent to such meeting
(5) Disclose investigative techniques
otherwise required by §§ 804.6, 804.7, and
and procedures; or
804.8 to be disclosed to the public may
be withheld if the Board properly de- (6) Endanger the life or physical safe-
termines that such meeting or portion ty of law enforcement personnel;
thereof or the disclosure of such infor- (h) Disclose information contained in
mation is likely to: or related to examination, operating,
(a) Disclose matters that are (1) spe- or condition reports prepared by, on be-
cifically authorized under criteria es- half of, or for the use of an agency re-
tablished by an Executive Order to be sponsible for the regulation or super-
kept secret in the interests of national vision of financial institutions;
defense or foreign policy, and (2) are in (i) Disclose information the pre-
fact properly classified pursuant to mature disclosure of which would be
such Executive Order; likely to significantly frustrate imple-
(b) Relate solely to the internal per- mentation of a proposed action of the
sonnel rules and practices of the NTSB; NTSB: Provided, That the NTSB has
(c) Disclose matters specifically ex- not already disclosed to the public the
empted from disclosure by statute content or nature of its proposed ac-
(other than 5 U.S.C. 552): Provided, That tion or is not required by law to make
such statute (1) requires that the mat- such disclosure on its own initiative
ters be withheld from the public in prior to taking final action on such
such a manner as to leave no discretion proposal; or
on the issue, or (2) establishes par- (j) Specifically concern the Board’s
ticular criteria for withholding or re-
issuance of a subpoena, or the NTSB’s
fers to particular types of matters to
participation in a civil action or pro-
be withheld;
ceeding, an action in a foreign court or
(d) Disclose trade secrets and com-
international tribunal, or an arbitra-
mercial or financial information ob-
tained from a person and privileged or tion, or the initiation, conduct, or dis-
confidential; position by the NTSB of a particular
(e) Involve accusing any person of a case of formal agency adjudication pur-
crime, or formally censuring any per- suant to the procedures in 5 U.S.C. 554
son; or otherwise involving a determination
(f) Disclose information of a personal on the record after opportunity for a
nature where disclosure would con- hearing.
stitute a clearly unwarranted invasion
of personal privacy;
143
§ 804.6 Procedures for closing meet- § 804.7 Procedures for public an-
ings, or withholding information, nouncement of meetings.
and requests by affected persons to (a) For each meeting, the NTSB shall
close a meeting. make public announcement, at least
(a) A meeting shall not be closed, or one week before the meeting, of the:
information pertaining thereto with- (1) Time of the meeting;
held, unless a majority of all Members (2) Place of the meeting;
votes to take such action. A separate (3) Subject matter of the meeting;
vote shall be taken with respect to any (4) Whether the meeting is to be open
action under § 804.5. A single vote is or closed; and
permitted with respect to a series of (5) The name and business telephone
meetings, a portion or portions of number of the official designated by
which are proposed to be closed to the the NTSB to respond to requests for in-
public, or with respect to any informa- formation about the meeting.
(b) The one week advance notice re-
tion concerning such series of meet-
quired by paragraph (a) of this section
ings, so long as each meeting in such
may be reduced only if:
series involves the same particular sub-
(1) A majority of all Members deter-
ject matters and is scheduled to be held mines by recorded vote that NTSB
no more than thirty days after the ini- business requires that such meeting be
tial meeting in such series. Each Mem- scheduled in less than seven days; and
ber’s vote under this paragraph shall be (2) The public announcement re-
recorded and proxies are not permitted. quired by paragraph (a) of this section
(b) Any person whose interest may be be made at the earliest practicable
directly affected if a portion of a meet- time.
ing is open may request the Board to (c) Immediately following each pub-
close that portion on any of the lic announcement required by this sec-
grounds referred to in § 804.5 (e), (f), or tion, or by § 804.8, the NTSB shall sub-
(g). Requests, with reasons in support mit a notice of public announcement
thereof, should be submitted to the for publication in the FEDERAL REG-
General Counsel, National Transpor- ISTER.
tation Safety Board, 800 Independence
Avenue, SW., Washington, DC 20594. On § 804.8 Changes following public an-
nouncement.
motion of any Member, the Board shall
determine by recorded vote whether to (a) The time or place of a meeting
grant the request. may be changed following the public
(c) Within one working day of any announcement only if the NTSB pub-
vote taken pursuant to this section, licly announces such change at the ear-
liest practicable time. Members need
the NTSB shall make available a writ-
not approve such change.
ten copy of such vote reflecting the
(b) The subject matter of a meeting
vote of each Member on the question
or the determination of the Board to
and, if a portion of a meeting is to be
open or to close a meeting, or a portion
closed to the public a full written ex- thereof, to the public may be changed
planation of its action closing the following public announcement only if:
meeting and a list of all persons ex- (1) A majority of all Members deter-
pected to attend and their affiliation. mines by recorded vote that NTSB
(d) Before every closed meeting, the business so requires and that no earlier
General Counsel of the NTSB shall pub- announcement of the change was pos-
licly certify that, in his or her opinion, sible; and
the meeting may be closed to the pub- (2) The NTSB publicly announces
lic and shall state each relevant ex- such change and the vote of each Mem-
emptive provision. A copy of such cer- ber thereon at the earliest practicable
tification, together with a statement of time.
the presiding officer setting forth the
time and place of the meeting and the § 804.9 Transcripts, recordings, or min-
persons present, shall be retained by utes of closed meetings.
the NTSB as part of the transcript, re- Along with the General Counsel’s
cording, or minutes required by § 804.9. certification and presiding officer’s
144
National Transportation Safety Board § 805.735–1
statement referred to in § 804.6(d), the 805.735–5 Receipt of gifts, entertainment,

NTSB shall maintain a complete tran- and favors by Members or employees.
script of electronic recording adequate 805.735–6 Misuse of information by Members
and employees.
to record fully the proceedings of each 805.735–7 Outside activities of Members and
meeting, or a portion thereof, closed to employees.
the public. The NTSB may maintain a 805.735–8 Employment of family members in
set of minutes in lieu of such tran- transportation and related enterprises.
script or recording for meetings closed 805.735–9 Use of Government property.
pursuant to § 804.5 (h) or (j). Such min- 805.735–10 Member and employee indebted-
utes shall fully and clearly describe all ness.
805.735–11 Gambling, betting, and lotteries.
matters discussed and shall provide a
805.735–12 Coercion.
full and accurate summary of any ac- 805.735–13 Conduct prejudicial to the Gov-
tions taken, and the reasons therefor, ernment.
including a description of each of the 805.735–14 Specific regulations for special
views expressed on any item and the Government employees.
record of any rollcall vote. All docu- 805.735–15 Miscellaneous statutory provi-
ments considered in connection with sions.
any actions shall be identified in such 805.735–16 Statements of employment and fi-
nancial interests.
minutes.
805.735–17 Supplementary statements.
805.735–18 Interests of employees’ relatives.
§ 804.10 Availability and retention of 805.735–19 Information not known by em-
transcripts, recordings, and min- ployees.
utes, and applicable fees. 805.735–20 Information not required of em-
The NTSB shall make promptly ployees.
available to the public the transcript, 805.735–21 Confidentiality of statements.
electronic recording, or minutes of the 805.735–22 Effect of statements on other re-
quirements.
discussion of any item on the agenda or
805.735–23 Submission of statements by spe-
of any testimony received at the meet- cial Government employees.
ing, except for such item, or items, of 805.735–24 Review of financial statements.
discussion or testimony as determined 805.735–25 Publication and interpretation.
by the NTSB to contain matters which 805.735–26 Employee’s complaint on filing
may be withheld under the exemptive requirements.
provisions of § 804.5. Copies of the non- 805.735–27 Disciplinary or remedial action.
exempt portions of the transcript or APPENDIX I TO PART 805—MISCELLANEOUS
minutes, or transcription of such re- STATUTORY PROVISIONS
cordings disclosing the identity of each APPENDIX II TO PART 805—EMPLOYEES RE-
QUIRED TO SUBMIT STATEMENTS
speaker, shall be furnished to any per-
son at the actual cost of transcription AUTHORITY: E.O. 11222 of May 8, 1965, 30 FR
or duplication. the NTSB shall main- 6469, 3 CFR 1965 Supp.; 5 CFR 735.101 et seq.,
tain a complete verbatim copy of the and 5 CFR 735.404.
transcript, a complete copy of the min- SOURCE: 40 FR 30239, July 17, 1975, unless
utes, or a complete electronic record- otherwise noted.
ing of each meeting, or a portion there-
of, closed to the public for at least two § 805.735–1 Purpose.
years after such meeting, or until one This part sets forth the standards of
year after the conclusion of any NTSB ethical and other conduct required of
proceeding with respect to which the all Board Members and employees, in
meeting, or a portion thereof, was held, implementation of Executive Order
whichever occurs later. 11222, May 8, 1965 (30 FR 6469), and part
735 of the Civil Service Commission
PART 805—EMPLOYEE Regulations adopted pursuant thereto
RESPONSIBILITIES AND CONDUCT (5 CFR part 735). It also contains ref-
erences to the several applicable stat-
Sec.
utes governing employee conduct, par-
805.735–1 Purpose. ticularly Pub. L. 87–849, 76 Stat. 119 (18
805.735–2 Definitions. U.S.C. 201 et seq.), and the ‘‘Code of
805.735–3 Policy. Ethics for Government Service,’’ House
805.735–4 Financial interests of Members Concurrent Resolution 175, 85th Con-
and employees. gress, 2d Session (72 Stat. B12).
145
§ 805.735–2 49 CFR Ch. VIII (10–1–07 Edition)
§ 805.735–2 Definitions. (3) Impeding Government efficiency

or economy;
As used in this part.
(4) Losing complete independence or
Executive order means Executive
impartiality;
Order 11222 of May 8, 1965 (30 FR 6469).
(5) Making a Government decision
Members and employees means the outside official channels; or
Board Members and employees of the
(6) Affecting adversely the confidence
National Transportation Safety Board
of the public in the integrity of the
(Board) and active duty officers or en-
Government.
listed members of the Armed Forces
detailed to the Board, but does not in- § 805.735–4 Financial interests of Mem-
clude special Government employees. bers and employees.
Person means an individual, a cor-
poration, a company, an association, a (a) A Member or employee shall not:
firm, a partnership, a society, a joint (1) Have direct or indirect financial
stock company, or any other organiza- interests which conflict, or appear to
tion or institution. conflict, with his assigned duties and
Special Government employee means an responsibilities within the Board; or
employee of the Board who is retained, (2) Engage in, directly or indirectly,
designated, appointed, or employed to a financial transaction as a result of,
perform temporary duties, with or or primarily relying on, information
without compensation, for a period not obtained through his employment by
to exceed 120 days during any period of the Board.
365 consecutive days, on either a full- (b) This section does not preclude a
time or intermittent basis. Member or an employee from having a
financial interest or engaging in finan-
[54 FR 10332, Mar. 13, 1989] cial transactions to the same extent as
a private citizen not employed by the
§ 805.735–3 Policy. Government, so long as it is not pro-
(a) The maintenance of unusually hibited by law, the Executive Order, 5
high standards of honesty, integrity, CFR part 735, or the regulations in this
impartiality, and conduct by its Mem- part.
bers and employees and special Govern-
ment employees is essential to assure § 805.735–5 Receipt of gifts, entertain-
the proper performance of the Board’s ment, and favors by Members or
business and the maintenance of con- employees.
fidence by citizens in their Govern- (a) Except as provided in paragraphs
ment. Therefore, the Board requires (b) and (g) of this section, a Member or
that its Members and employees and employee shall not solicit or accept, di-
special Government employees adhere rectly or indirectly, any gift, gratuity,
strictly to the highest standard of eth- favor, entertainment, loan, or any
ical conduct in all of their social, busi- other thing of monetary value, from a
ness, political and other off-the-job ac- person who:
tivities, relationships, and interests, as (1) Has, or is seeking to obtain, con-
well as in their official actions. tractual or other business or financial
(b) All Members and employees and relations with the Board;
special Government employees shall (2) Conducts operations or activities
avoid situations which might result in that are subject to Board jurisdiction;
actual or apparent misconduct or con- or
flicts of interest. (3) Has interests that may be sub-
(c) Members and employees shall stantially affected by the performance
avoid any action, whether or not spe- or nonperformance of his official duty.
cifically prohibited by the regulations (b) The prohibitions of paragraph (a)
in this part which might result in, or of this section do not apply to:
create the appearance of: (1) Obvious family or personal rela-
(1) Using public office for private tionships such as those between the
gain; employee and his parents, children, or
(2) Giving preferential treatment to spouse, when the circumstances make
any person; it clear that those relationships rather
146
than the business of the persons con- receiving less salary than himself.
cerned are the motivating factors; However, paragraph (c) of this section
(2) Acceptance of food and refresh- and this paragraph (d) do not prohibit
ments of nominal value on infrequent a voluntary gift of nominal value or a
occasions in the ordinary course of a donation in a nominal amount made on
luncheon or dinner meeting, other a special occasion, such as marriage,
meetings, or inspection tours where a illness, retirement, or transfer.
Member or employee may properly be (e) Members and employees shall not
in attendance; accept a gift, present, decoration, or
(3) Acceptance of unsolicited adver- other thing from a foreign government
tising or promotional material, such as unless authorized by Congress as pro-
pens, pencils, note pads, calendars, and vided by the Constitution and in 5
other items of nominal intrinsic value; U.S.C. 7342.
(4) Acceptance of loans from banks or (f) Members and employees may not
other financial institutions on cus- be directly reimbursed by a person for
tomary terms to finance proper and travel on official business under agency
usual activities of employees, such as orders. However, reimbursement in the
home mortgage loans; form of a donation may be made to the
(5) Utilization by Members or em- Board. The Member or employee in-
ployees of the services offered to the volved will be paid by the Board in ac-
public by any of the persons specified cordance with applicable laws and reg-
in paragraph (a) of this section: Pro- ulations relating to reimbursement for
vided, That full value, as published in a official travel. If the Member or em-
carrier’s tariffs, or as is customarily ployee is furnished accommodations,
charged to the public, is paid therefor; goods, or services in kind they may be
(6) Carriage without charge by a car- treated as a donation to the Board, and
rier, of Members or employees engaged either no per diem and other travel ex-
in official duties, for safety purposes, penses will be paid or an appropriate
as provided for in the Civil Aeronautics reduction will be made in the per diem
Board’s regulations; or other travel expenses payable, de-
(7) Acceptance of invitations, when pending upon the extent of the dona-
approved by the Chairman or the Man- tion. No Member or employee may be
aging Director, with respect to meals reimbursed, or payment made on his
and accommodations when on official behalf, for excessive personal living ex-
business outside the continental penses, gifts, entertainment, or other
United States; where commercial ac- personal benefits.
commodations are unavailable or inap- (g) Members and employees are not
propriate; or where refusal of the offer precluded from receiving bona fide re-
would be otherwise inappropriate in imbursement, unless prohibited by law,
light of all circumstances involved; and for expenses of nonofficial travel and
(8) Acceptance of an invitation ad- such other necessary subsistence as is
dressed to the Board, when approved by compatible with this part for private
the Chairman or the Managing Direc- personal interests for which no Govern-
tor, by an employee (including, where ment payment or reimbursement is au-
applicable, his wife or a member of his thorized.
immediate family), to participate in an [40 FR 30239, July 17, 1975, as amended at 41
inaugural flight or similar ceremonial FR 39758, Sept. 16, 1976]
event related to transportation, and
accept food, lodging, and entertain- § 805.735–6 Misuse of information by
ment incident thereto. Members and employees.
(c) Members and employees shall not For the purpose of furthering private
solicit contributions from another interest, Members and employees shall
Member or employee for a gift, or not, except as provided in § 805.735–7(c),
make a donation as a gift, to a Member directly or indirectly, use, or allow the
or employee in a superior official posi- use of, official information obtained
tion. through or in connection with his em-
(d) A Member or an employee in a su- ployment within the Board which has
perior official position shall not accept not been made available to the general
a gift from an employee or employees public.
147
§ 805.735–7 Outside activities of Mem- pose of the special preparation of a per-

bers and employees. son or class of persons for an examina-
(a) A Member or employee shall not tion of the Civil Service Commission or
engage in outside employment or other Board of Examiners for the Foreign
outside activity not compatible with Service, that is dependent on informa-
the full and proper discharge of his du- tion obtained as a result of his employ-
ties and responsibilities as an officer or ment by the Board, except when that
employee of the Board. Before an em- information has been made available to
ployee can engage in outside employ- the general public or will be made
ment or activity for profit, he shall ob- available on request, or when the
tain the approval of the Board’s Man- Chairman gives written authorization
aging Director by requesting written for the use of nonpublic information on
authorization from the Managing Di- the basis that the use is in the public
rector prior to engaging in such activ- interest.
ity. Board Members desiring to engage (d) Board Members, as Presidential
in outside employment or activity for appointees covered by section 401(a) of
profit may request prior written au- the Executive order, are specifically
thorization from the Chairman. Should precluded by 5 CFR 735.203(c) from re-
such authorization be granted, the ceiving compensation or anything of
Member or employee has a continuing monetary value for any consultation,
responsibility to confine himself to the lecture, discussion, writing, or appear-
scope of the authorization. If the cir- ance, the subject matter of which is de-
cumstances change so as to involve a voted substantially to the responsibil-
possible incompatible activity, the ities, programs, or operations of their
Member or employee must seek further agency, or which draws substantially
authorization in order to continue in on official data or ideas which have not
his outside employment or activity for become part of the body of public infor-
profit. Authorization granted in spe- mation.
cific cases may be deemed subse- (e) If an activity covered by para-
quently to involve an incompatible ac- graphs (c) and (d) of this section is to
tivity, and in such cases the Member or be undertaken as official duty, ex-
employee concerned shall be notified in penses will be borne by the Board, and
writing of the cancellation of the au- the Member or employee may not ac-
thorization with instructions to modify cept compensation or allow his ex-
or terminate the outside activity at penses to be paid for by the person or
the earliest practicable time. group under whose auspices the activ-
(b) Incompatible activities by Mem- ity is being performed. If it is deter-
bers or employees include, but are not mined that the activity is to be under-
limited to: taken in a private capacity, the Mem-
(1) Acceptance of a fee, compensa- ber or employee may not use duty
tion, gift, payment of expense, or any hours or Government facilities, but he
other thing of monetary value in cir- may accept compensation, and he may
cumstances in which acceptance may use his official title if he makes it
result in, or create the appearance of, a clear that he does not represent the
conflict of interest; or Board.
(2) Outside employment or activity (f) Members and employees shall not
which tends to impair his mental or receive any salary or anything of mon-
physical capacity to perform in an ac- etary value from a private source as
ceptable manner his duties and respon- compensation for his services to the
sibilities within the Board. Board (18 U.S.C. 209).
(c) Employees are encouraged to en- (g) This section does not preclude a
gage in teaching, lecturing, and writ- Member or employee from:
ing that is not prohibited by law, the (1) Participating in the activities of
Executive order, 5 CFR part 735, or the national or State political parties not
regulations in this part. However, an prohibited by law;
employee shall not, either for or with- (2) Participating in the affairs of or
out compensation, engage in teaching, acceptance of an award for a meri-
lecturing, or writing, including teach- torious public contribution or achieve-
ing, lecturing, or writing for the pur- ment given by a charitable, religious,
148
professional, social, fraternal, non- circumstances, reflect adversely on the

profit educational or recreational, pub- Board as his employer.
lic service, or civic organization.
§ 805.735–11 Gambling, betting, and
[40 FR 30239, July 17, 1975, as amended at 41 lotteries.
FR 39758, Sept. 16, 1976]
Members and employees shall not
§ 805.735–8 Employment of family participate, while on Board-owned or
members in transportation and released property or while on duty for
lated enterprises. the Board, in any gambling activity,
(a) No individual will be employed or including the operation of a gambling
retained in employment by the Board if device, conducting a lottery or pool, a
a member of his immediate family game for money or property, or in sell-
(blood relations who are residents of ing or purchasing a numbers slip or
the employee’s household) is employed ticket. However, this section does not
by a carrier, a person or firm rep- preclude activities regarding solicita-
resenting a carrier, or a transportation tions conducted by an employee recre-
trade association. ation and welfare organization among
(b) Members and employees may re- its members, for organizational sup-
quest a waiver, modification, or post- port, or for benefit or welfare funds for
ponement of the implementation of its members, these activities having
this prohibition from the Chairman been approved under section 3 of Exec-
and Managing Director, respectively, utive Order 10927, dated March 18, 1961.
on the grounds of undue hardship to
himself or the family member involved. § 805.735–12 Coercion.
The request must contain an agree- Members and employees shall not use
ment to forego any privilege to which their employment by the Board to co-
the Board Member or employee would erce, or give the appearance of coerc-
be entitled as a relative of the family ing, a person to provide financial ben-
member. efit to themselves or another person,
[40 FR 30239, July 17, 1975, as amended at 41 particularly one with whom they have
FR 39758, Sept. 16, 1976] family, business, or financial ties.
§ 805.735–9 Use of Government prop- § 805.735–13 Conduct prejudicial to the

erty. Government.
Members and employees shall not, di- Members and employees shall not en-
rectly or indirectly, use, or allow the gage in criminal, infamous, dishonest,
use of, Board property of any kind, in- immoral, or notoriously disgraceful
cluding property leased to the Board, conduct, or other conduct prejudicial
for other than officially approved ac- to the Board or to the Government.
tivities. A Member or employee has a
positive duty to protect and conserve § 805.735–14 Specific regulations for
Board property, including equipment, special Government employees.
supplies, and other property entrusted (a) Use of Board affiliation. A special
to or issued to him. Government employee of the Board
shall not use his Government employ-
§ 805.735–10 Member and employee in- ment for a purpose that is, or gives the
debtedness. appearance of being, motivated by the
Members and employees shall pay desire for private gain for himself or
each just financial obligation in a another person, particularly one with
proper and timely manner, especially whom he has family, business, or finan-
one imposed by law, such as Federal, cial ties.
State, or local taxes. For the purpose (b) Use of inside information. (1) A spe-
of this section, a ‘‘just financial obliga- cial Government employee shall not
tion’’ means one acknowledged by the use inside information obtained as a re-
employee or one reduced to judgment sult of his employment by the Board
by a court, and ‘‘in a proper and timely for private gain for himself or another
manner’’ means in a manner which the person, either by direct action on his
Board determines does not, under the part or by counsel, recommendation, or
149
suggestion to another person, particu- (1) Ninety days after the effective
larly one with whom he has family, date of the regulations in this part if
business, or financial ties. For this pur- he is employed on or before that effec-
pose of this section, ‘‘inside informative date; or
tion’’ means information obtained (2) Thirty days after he becomes sub-
under Government authority which has ject to the reporting requirements by
not become part of the body of public occupying a position covered under
information. paragraph (a) of this section, if he oc-
(2) Special Government employees cupies the position after that effective
may teach, lecture, or write in a man- date.
ner not inconsistent with § 805.735–7(c)
(b) An employee required to submit a
for employees.
(c) Receipt of gifts, entertainment, and statement of employment and financial
favors. (1) A special Government em- interests shall submit that statement
ployee, while employed by the Board or in the format prescribed by the Man-
in connection with his employment, aging Director.
shall not receive or solicit from a per- (c) Board Members are subject to sep-
son having business with the Board, arate reporting requests under section
anything of value such as a gift, gra- 401 of the Executive order, and are not
tuity, loan, entertainment, or favor for required to file statements pursuant to
himself or another person, particularly this section.
one with whom he has family, business,
[40 FR 30239, July 17, 1975, as amended at 41
or financial ties. FR 39758, Sept. 16, 1976]
(2) The exception as set forth in
§ 805.735–5(b) for employees will apply § 805.735–17 Supplementary state-
with equivalent force and effect to spe- ments.
cial Government employees with re-
gard to the prohibitions of paragraph Changes in, or additions to, the infor-
(a) of this section. mation contained in an employee’s
(d) Applicability of other provisions. statement of employment and financial
The provisions of § 805.735–9 (Use of interests shall be reported in supple-
Government property), § 805.735–11 mentary statements, in the format pre-
(Gambling, betting, and lotteries), scribed by the Managing Director, as of
§ 805.735–12 (Coercion), § 805.735–13 (Con- June 30th of each year. If there are not
duct prejudicial to the Government) changes or additions, a negative report
and § 805.735–15 (Miscellaneous statu- is not required. Notwithstanding the
tory provisions) apply to special Gov- filing of the annual report required by
ernment employees in the same man- this section, each employee shall at all
ner as to employees. times avoid acquiring a financial inter-
est that could result, or taking an ac-
§ 805.735–15 Miscellaneous statutory
provisions. tion that would result, in a violation of
the conflict-of-interest provisions, 18
Each Member and employee shall ac- U.S.C. 208, or the provisions of this
quaint himself with the statutory pro- part.
visions in appendix I, attached hereto
and made a part thereof, which relate [40 FR 30239, July 17, 1975, as amended at 41
to his ethical and other conduct as a FR 39758, Sept. 16, 1976]
Member and employee of the Board and
the Government. § 805.735–18 Interests of employees’
relatives.
§ 805.735–16 Statements of employment The interest of a spouse, minor child,
and financial interests. or other members of an employee’s im-
(a) All employees in the positions mediate household is considered to be
specified in appendix II, attached here- an interest of the employee. For the
to and made a part thereof, shall sub- purpose of this section, ‘‘member of an
mit a statement of employment and fi- employee’s household’’ means those
nancial interests under the regulations blood relations who are residents of the
in this part in triplicate to the Per-
employee’s household.
sonnel Officer not later than:
150
§ 805.735–19 Information not known by regulation. The submission of a state-

employees. ment or supplementary statement by
If any information required to be in- an employee does not permit him or
cluded on a statement of employment any other person to participate in a
and financial interests or supple- matter in which his or the other per-
mentary statement, including holdings son’s participation is prohibited by
placed in trust, is not known to the law, order, or regulation.
employee but is known to another per-
son, the employee shall require that § 805.735–23 Submission of statements
other person to submit information in by special Government employees.
his behalf. (a) A special Government employee
§ 805.735–20 Information not required shall submit a statement of employ-
of employees. ment and financial interests which re-
ports:
An employee is not required to sub-
mit on a statement of employment and (1) All other employment; and
financial interests or supplementary (2) The financial interests of the spe-
statement, any information relating to cial Government employee which the
the employee’s connection with, or in- Chairman determines are relevant in
terest in, a professional society or a the light of the duties he is to perform.
charitable, religious, social, fraternal, (b) A special Government employee
recreational, public service, civic, or who is a consultant or expert shall sub-
political organization, or a similar or- mit a statement of employment and fi-
ganization not conducted as a business nancial interests to the Personnel Offi-
enterprise. For the purpose of this sec- cer, in the format prescribed by the
tion, educational and other institu- Managing Director, at the time of his
tions doing research and development employment, and shall keep his state-
or related work, involving grants of ment current throughout his period of
money from or contracts with the Gov- employment by submission of supple-
ernment, are deemed ‘‘business enter- mentary statements.
prises’’ and are required to be included (c) The Chairman may waive the re-
in an employee’s statement of employ-
quirement in paragraph (a) of this sec-
ment and financial interests.
tion for the submission of a statement
§ 805.735–21 Confidentiality of state- of employment and financial interests
ments. in the case of a special Government
Subject to the provisions of § 805.735– employee who is not a consultant or an
24 concerning review of employee expert when it has been determined
statements, each statement of employ- that the duties of the position held by
ment and financial interests, and each the special Government employee are
supplementary statement, shall be held of a nature, and at such a level of re-
in confidence. The Personnel Officer is sponsibility, that the submission of the
personally responsible for the retention statement by the incumbent is not nec-
of employee statements in confidence essary to protect the integrity of the
and may not disclose information from Board. For the purpose of paragraphs
a statement or allow access to a state- (b) and (c) of this section, the following
ment, except to carry out the purpose are examples of special Government
of this part, or as the Civil Service employees who are not consultants and
Commission or the Chairman may de- experts;
termine for good cause shown. (1) A physician, dentist, or allied
medical specialist whose services are
§ 805.735–22 Effect of statements on
other requirements. procured to provide care and service to
patients; or
The statements of employment and
(2) A veterinarian whose services are
financial interests and supplementary
procured to provide care and service to
statements required of employees are
animals.
in addition to, and not in substitution
for, or in derogation of, any similar re- [40 FR 30239, July 17, 1975, as amended at 41
quirement imposed by law, order, or FR 39758, Sept. 16, 1976]
151
§ 805.735–24 Review of financial state- § 805.735–25 Publication and interpre-

ments. tation.
(a) The Personnel Officer shall review (a) The Personnel Officer of the
each statement of employment and fi- Board shall be responsible for making
nancial interests submitted under the the regulations in this part and all re-
regulations in this part (other than his visions thereof, and the formats for
own, which is reviewed by the Man- statements of employment and finan-
cial interests available to:
aging Director) to determine whether
(1) Each Member, employee, and spe-
conflicts of interest or apparent con-
cial Government employee at the time
flicts of interest exist. If the review, or of issuance and at least annually there-
other information from other sources, after;
indicates a conflict between the inter- (2) Each new Member, employee, and
ests of an employee or special Govern- special Government employee of the
ment employee and the performance of Board at the time of his entrance on
his services for the Board, the Per- duty; and
sonnel Officer shall forward the state- (3) Each Member, employee, and spe-
ment, together with a position descrip- cial Government employee of the
tion of the employee involved, to the Board at such other times as cir-
General Counsel of the Board. cumstances warrant.
(b) The employee or special Govern- (b) The Personnel Officer shall have
ment employee whose statement has available for review by Members, em-
been referred under the provisions of ployees, and special Government em-
paragraph (a) of this section will re- ployees of the Board, copies of such
ceive, from the General Counsel, advice laws, Executive orders, Civil Service
and guidance regarding the matters Commission regulations and instruc-
questioned by the Personnel Officer. He tions, and Board regulations as may
currently appertain to their standards
will be afforded an opportunity to ex-
of ethical and other conduct.
plain the conflict or appearance of con-
(c) The General Counsel of the Board
flict. It is expected that most problems is designated to provide counseling and
will be settled at this informal stage. assistance to interpret the regulations
However, if an agreement cannot be in this part and matters relating to
reached after consultation, the matter ethical conduct, particularly matters
shall be reported by the General Coun- subject to the provisions of the con-
sel, after consulting with the Managing flict-of-interest laws and other matters
Director, to the Chairman for resolu- covered by the Executive order. These
tion. counseling services are available to all
(c) The Chairman may provide the Members, employees, and special Gov-
employee or special Government em- ernment employees at the General
ployee concerned with an additional Counsel’s office, by appointment for
opportunity to explain the conflict or consultation or by written communica-
appearance of conflict. If the matter tion.
cannot be resolved, the Chairman may
invoke the disciplinary provisions of § 805.735–26 Employee’s complaint on
filing requirements.
§ 805.735–27, or may decide that reme-
dial steps shall be taken with regard to An employee who believes that his
such employee or special Government position has been improperly included
employee. When the questions of con- under the regulations in this part, as
flict of interest are resolved at one of one requiring the submission of a
the stages of review, the reviewing offi- statement of employment and financial
cial shall sign and date a copy of the interests, may request review through
employee’s statement to evidence his the Board’s grievance procedure.
clearance, and this statement shall § 805.735–27 Disciplinary or remedial
thereafter be kept as provided in action.
§ 805.735–21.
(a) A violation of the regulations in
[40 FR 30239, July 17, 1975, as amended at 41 this part by an employee or special
FR 39758, Sept. 16, 1976] Government employee may be cause
152
National Transportation Safety Board Pt. 805, App. II
for disciplinary action in addition to (c) The prohibition against lobbying with
any penalty prescribed by Federal stat- appropriate funds (18 U.S.C. 1913).
ute or regulation, except for active (d) The prohibitions against disloyalty and
striking (5 U.S.C. 7311, 18 U.S.C. 1918).
duty officers or enlisted members of (e) The prohibition against the employ-
the Armed Forces detailed to the Board ment of a member of a Communist organiza-
in which cases disciplinary actions tion (50 U.S.C. 784).
may be effected against such military (f) The prohibition against:
personnel by the parent military serv- (1) The disclosure of classified information
ice. Disciplinary action may take the (18 U.S.C. 798, 50 U.S.C. 783); and
form of a warning, suspension, demo- (2) The disclosure of confidential informa-
tion, or removal, depending upon the tion (18 U.S.C. 1905, 49 U.S.C. 1472(f)).
(g) The provision relating to the habitual
gravity of the offense. use of intoxicants to excess (5 U.S.C. 8352).
(b) Any employee or special Govern- (h) The prohibition against the misuse of a
ment employee who is charged with a Government vehicle (31 U.S.C. 638a(c)).
violation of the regulations in this part (i) The prohibition against the misuse of
shall be provided an opportunity to ex- the franking privilege (18 U.S.C. 1719).
plain the violation, or appearance of (j) The prohibition against the use of de-
violation, to the charging authority. ceit in an examination or personnel action in
The charging authority shall be the connection with Government employment
(18 U.S.C. 1917).
Managing Director of the Board.
(k) The prohibition against fraud or false
(c) When, after consideration of the statements in a Government matter (18
explanation, the charging authority de- U.S.C. 1001).
cides that disciplinary action is not re- (l) The prohibition against mutilating or
quired, he may take appropriate reme- destroying a public record (18 U.S.C. 2071).
dial action. Remedial action may in- (m) The prohibition against counterfeiting
clude, but is not limited to: and forging transportation requests (18
(1) Changes in assigned duties; U.S.C. 508).
(2) Divestment by the employee or (n) The prohibition against:
(1) Embezzlement of Government money or
special Government employee of any fi- property (18 U.S.C. 641);
nancial interest that conflicts, or ap- (2) Failing to account for public money (18
pears to conflict, with the performance U.S.C. 643); and
of his official duties; or (3) Embezzlement of the money or property
(3) Disqualification for a particular of another person in the possession of an em-
assignment. ployee by reason of his employment (18
(d) Remedial or disciplinary action U.S.C. 654).
shall be effected in accordance with (o) The prohibition against unauthorized
any applicable laws, Executive orders, use of documents relating to claims from or
by the Government (18 U.S.C. 285).
and regulations. (p) The prohibition against political activi-
[40 FR 30239, July 17, 1975, as amended at 41 ties in subchapter III of chapter 73 of title 5,
FR 39758, Sept. 16, 1976] U.S.C., and 18 U.S.C. 602, 603, 607, and 608.
(q) The prohibition against an employee’s
APPENDIX I TO PART 805— acting as the agent of a foreign principal reg-
MISCELLANEOUS STATUTORY PROVISIONS istered under the Foreign Agents Registra-
tion Act (18 U.S.C. 219).
Each Member and employee and each spe-
cial Government employee has a positive APPENDIX II TO PART 805—EMPLOYEES
duty to acquaint himself with each statute REQUIRED TO SUBMIT STATEMENTS
which relates to his ethical and other con-
duct as an officer or employee of the Na- Statements of employment and financial
tional Transportation Safety Board and of interests are required of the following:
the Government. Therefore, each Member (a) Employees in grades GS–16 or above, or
and employee and each special Government in positions not subject to the Classification
employee shall acquaint himself with the Act paid at a rate at or above the entrance
following statutory and nonstatutory provi- rate for GS–16.
sions which relate to his ethical and other (b) Special assistants to the members.
conduct: (c) Office of the managing director:
(a) House Concurrent Resolution 175, 85th (1) Legislative affairs officer.
Congress, 2d Session (72 Stat. B12), the ‘‘Code (2) Program analysis officer.
of Ethics for Government Service.’’ (d) Attorneys in grade GS–15.
(b) Chapter 11 of Title 18, United States (e) Office of public affairs:
Code, relating to bribery, graft, and conflicts (1) Director.
of interest (18 U.S.C. 201 through 209). (2) Deputy director.
153
(f) Bureau of administration: § 806.2 Applicability.
(1) Director.
(2) Deputy director—personnel officer. This rule supplements Executive
(3) Chief, operations and facilities division. Order 12065 within the Board with re-
(4) Contracting specialist. gard to national security information.
(5) Comptroller. It establishes general policies and cer-
(6) Budget officer. tain procedures for the classification
(7) Accounting officer.
(g) Division and branch chiefs within the
and declassification of information
bureaus of accident investigation, tech- which is generated, processed, and/or
nology, and plans and programs. stored by the Board. In this connec-
(h) Chief or senior investigators, field of- tion, the Board does not have any
fices. original classification authority but in-
[41 FR 39758, Sept. 16, 1976] frequently does receive classified infor-
NOTE: The above regulation and its appen- mation from other agencies.
dices were approved by the Civil Service
Commission (OPM) on July 16, 1968, and Sep- § 806.3 Definitions.
tember 13, 1972, respectively, prior to submis-
sion to the Office of the Federal Register. (a) Classified information. Informa-
tion or material, herein collectively
termed information, that is owned by,
PART 806—NATIONAL SECURITY IN- produced for or by, or under the con-
FORMATION POLICY AND trol of, the United States Government
GUIDELINES, IMPLEMENTING and that has been determined pursuant
REGULATIONS to Executive Order 12065, or prior or-
ders, to require protection against un-
Sec. authorized disclosure and that is so
806.1 General policy. designated. One of the following classi-
806.3 Definitions.
fications will be shown:
806.4 Mandatory review for declassification. (1) Top secret means information, the
unauthorized disclosure of which rea-
AUTHORITY: Sec. 304, Independent Safety
Board Act of 1974, 88 Stat. 2168 (49 U.S.C.
sonably could be expected to cause ex-
1903). E.O. 12065, 43 FR 28949, July 3, 1978. ceptionally grave damage to the na-
tional security.
SOURCE: 45 FR 20104, Mar. 27, 1980, unless
otherwise noted.
(2) Secret means information, the un-
authorized disclosure of which reason-
§ 806.1 General policy. ably could be expected to cause serious
damage to national security.
(a) The interests of the United States
and its citizens are best served by mak- (3) Confidential means information,
ing information regarding the affairs of the unauthorized disclosure of which
Government readily available to the reasonably could be expected to cause
public. This concept of an informed identifiable damage to the national se-
citizenry is reflected in the Freedom of curity.
Information Act and in the current (b) Foreign government information
public information policies of the exec- means either: (1) Information provided
utive branch. to the United States by a foreign gov-
(b) Within the Federal Government ernment or international organization
there is some official information and of governments in the expectation, ex-
material which, because it bears di- press or implied, that the information
rectly on the effectiveness of our na- is to be kept in confidence; or (2) infor-
tional defense and the conduct of our mation produced by the United States
foreign relations, must be subject to pursuant to a written joint arrange-
some constraints for the security of ment with a foreign government or
our Nation and the safety of our people international organization of govern-
and our allies. To protect against ac- ments requiring that either the infor-
tions hostile to the United States, of mation or the arrangements or both, be
both an overt and covert nature, it is kept in confidence.
essential that such official information (c) National security means the na-
and material be given only limited dis- tional defense and foreign relations of
semination. the United States.
154
(d) Declassification event means an 807.110 Self-evaluation.

event which would eliminate the need 807.111 Notice.
for continued classification. 807.112–807.129 [Reserved]
807.130 General prohibitions against dis-
§ 806.4 Mandatory review for declas- crimination.
sification. 807.131–807.139 [Reserved]
807.140 Employment.
(a) Requests for mandatory review 807.141–807.148 [Reserved]
for declassification under section 3–501 807.149 Program accessibility: Discrimina-
of E.O. 12065 must be in writing and tion prohibited.
should be addressed to: National Secu- 807.150 Program accessibility: Existing fa-
cilities.
rity Oversight Officer, National Trans-
807.151 Program accessibility: New con-
portation Safety Board, Washington, struction and alterations.
DC 20594. 807.152–807.159 [Reserved]
(b) The requester shall be informed of 807.160 Communications.
the date of receipt of the request at the 807.161–807.169 [Reserved]
Board. This date will be the basis for 807.170 Compliance procedures.
the time limits specified by section 3– AUTHORITY: 29 U.S.C. 794.
501 of E.O. 12065. If the request does not
SOURCE: 51 FR 4578, Feb. 5, 1986, unless oth-
reasonably describe the information erwise noted.
sought, the requester shall be notified
that, unless additional information is § 807.101 Purpose.
provided or the request is made more
This part effectuates section 119 of
specific, no further action will be
the Rehabilitation, Comprehensive
taken.
Services, and Developmental Disabil-
(c) When the Board receives a request
ities Amendments of 1978, which
for information in a document which is
amended section 504 of the Rehabilita-
in its custody but which was classified
tion Act of 1973 to prohibit discrimina-
by another agency, it shall refer the re-
tion on the basis of handicap in pro-
quest to the appropriate agency for re-
grams or activities conducted by Exec-
view, together with a copy of the docu-
utive agencies or the United States
ment containing the information re- Postal Service.
quested, where practicable. The Board
shall also notify the requester of the § 807.102 Application.
referral, unless the association of the
This part applies to all programs or
reviewing agency with the information
activities conducted by the agency.
requires protection. The reviewing
agency shall review the document in § 807.103 Definitions.
coordination with any other agency in-
volved or which had a direct interest in For purposes of this part, the term—
Assistant Attorney General means the
the classification of the subject mat-
Assistant Attorney General, Civil
ter. The reviewing agency shall re-
Rights Division, United States Depart-
spond directly to the requester in ac-
ment of Justice.
cordance with the pertinent procedures
Auxiliary aids means services or de-
described above and, if requested, shall
vices that enable persons with im-
notify the Board of its determination.
paired sensory, manual, or speaking
skills to have an equal opportunity to
PART 807—ENFORCEMENT OF participate in, and enjoy the benefits
NONDISCRIMINATION ON THE of, programs or activities conducted by
BASIS OF HANDICAP IN PRO- the agency. For example, auxiliary aids
GRAMS OR ACTIVITIES CON- useful for persons with impaired vision
DUCTED BY THE NATIONAL include readers, Brailled materials,
TRANSPORTATION SAFETY audio recordings, telecommunications
devices and other similar services and
BOARD devices. Auxiliary aids useful for per-
sons with impaired hearing include
Sec.
807.101 Purpose. telephone handset amplifiers, tele-
807.102 Application. phones compatible with hearing aids,
telecommunication devices for deaf
807.103 Definitions.
807.104–807.109 [Reserved] persons (TDD’s), interpreters,
155
notetakers, written materials, and physical impairment that substantially

other similar services and devices. limits one or more major life activi-
Complete complaint means a written ties.
statement that contains the complain- (4) Is regarded as having an impairment
ant’s name and address and describes means—
the agency’s alleged discriminatory ac- (i) Has a physical or mental impair-
tion in sufficient detail to inform the ment that does not substantially limit
agency of the nature and date of the al- major life activities but is treated by
leged violation of section 504. It shall the agency as constituting such a limi-
be signed by the complainant or by tation;
someone authorized to do so on his or (ii) Has a physical or mental impair-
her behalf. Complaints filed on behalf ment that substantially limits major
of classes or third parties shall describe
life activities only as a result of the at-
or identify (by name, if possible) the
titudes of others toward such impair-
alleged victims of discrimination.
ment; or
Facility means all or any portion of
buildings, structures, equipment, (iii) Has none of the impairments de-
roads, walks, parking lots, rolling fined in subparagraph (1) of this defini-
stock or other conveyances, or other tion but is treated by the agency as
real or personal property. having such an impairment.
Handicapped person means any person Qualified handicapped person means—
who has a physical or mental impair- (1) With respect to any agency pro-
ment that substantially limits one or gram or activity under which a person
more major life activities, has a record is required to perform services or to
of such an impairment, or is regarded achieve a level of accomplishment, a
as having such an impairment. handicapped person who meets the es-
As used in this definition, the phrase: sential eligibility requirements and
(1) Physical or mental impairment in- who can achieve the purpose of the pro-
cludes— gram or activity without modifications
(i) Any physiological disorder or con- in the program or activity that the
dition, cosmetic disfigurement, or ana- agency can demonstrate would result
tomical loss affecting one of more of in a fundamental alteration in its na-
the following body systems: Neuro- ture; or
logical; musculoskeletal; special sense (2) With respect to any other pro-
organs; respiratory, including speech gram or activity, a handicapped person
organs; cardiovascular; reproductive; who meets the essential eligibility re-
digestive; genitourinary; hemic and quirements for participation in, or re-
lymphatic; skin; and endocrine; or ceipt of benefits from, that program or
(ii) Any mental or psychological dis- activity.
order, such as mental retardation, or- (3) Qualified handicapped person is de-
ganic brain syndrome, emotional or fined for purposes of employment in 29
mental illness, and specific learning CFR 1613.702(f), which is made applica-
disabilities. The term physical or mental ble to this part by § 807.140.
impairment includes, but is not limited Section 504 means section 504 of the
to, such diseases and conditions as or-
Rehabilitation Act of 1973 (Pub. L. 93–
thopedic, visual, speech, and hearing
112, 87 Stat. 394 (29 U.S.C. 794)), as
impairments, cerebral palsy, epilepsy,
amended by the Rehabilitation Act
muscular dystrophy, multiple sclerosis,
Amendments of 1974 (Pub. L. 93–516, 88
cancer, heart disease, diabetes, mental
Stat. 1617), and the Rehabilitation,
retardation, emotional illness, and
Comprehensive Services, and Develop-
drug addiction and alcoholism.
mental Disabilities Amendments of
(2) Major life activities includes func-
1978 (Pub. L. 95–602, 92 Stat. 2955). As
tions such as caring for one’s self, per-
used in this part, section 504 applies
forming manual tasks, walking, seeing,
only to programs or activities con-
hearing, speaking, breathing, learning,
and working. ducted by Executive agencies and not
(3) Has a record of such an impairment to federally assisted programs.
means has a history of, or has been [51 FR 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5,
misclassified as having, a mental or 1986]
156
§§ 807.104–807.109 [Reserved] (i) Deny a qualified handicapped per-

son the opportunity to participate in
§ 807.110 Self-evaluation. or benefit from the aid, benefit, or
(a) The agency shall, by April 9, 1987, service;
evaluate its current policies and prac- (ii) Afford a qualified handicapped
tices, and the effects thereof, that do person an opportunity to participate in
not or may not meet the requirements or benefit from the aid, benefit, or
of this part, and to the extent modi- service that is not equal to that af-
fication of any such policies and prac- forded others;
tices is required, the agency shall pro- (iii) Provide a qualified handicapped
ceed to make the necessary modifica- person with an aid, benefit, or service
tions. that is not as effective in affording
(b) The agency shall provide an op- equal opportunity to obtain the same
portunity to interested persons, includ- result, to gain the same benefit, or to
ing handicapped persons or organiza- reach the same level of achievement as
tions representing handicapped per- that provided to others;
sons, to participate in the self-evalua- (iv) Provide different or separate aid,
tion process by submitting comments benefits, or services to handicapped
(both oral and written). persons or to any class of handicapped
(c) The agency shall, until three persons than is provided to others un-
years following the completion of the less such action is necessary to provide
self-evaluation, maintain on file and qualified handicapped persons with aid,
make available for public inspections: benefits, or services that are as effec-
(1) A description of areas examined tive as those provided to others;
and any problems identified, and (v) Deny a qualified handicapped per-
(2) A description of any modifications son the opportunity to participate as a
made. member of planning or advisory boards;
or
§ 807.111 Notice. (vi) Otherwise limit a qualified
The agency shall make available to handicapped person in the enjoyment
employees, applicants, participants, of any right, privilege, advantage, or
beneficiaries, and other interested per- opportunity enjoyed by others receiv-
sons such information regarding the ing the aid, benefit, or service.
provisions of this part and its applica- (2) The agency may not deny a quali-
bility to the programs or activities fied handicapped person the oppor-
conducted by the agency, and make tunity to participate in programs or
such information available to them in activities that are not separate or dif-
such manner as the head of the agency ferent, despite the existence of permis-
finds necessary to apprise such persons sibly separate or different programs or
of the protections against discrimina- activities.
tion assured them by section 504 and (3) The agency may not, directly or
this regulation. through contractual or other arrange-
ments, utilize criteria or methods of
§§ 807.112–807.129 [Reserved] administration the purpose or effect of
which would—
§ 807.130 General prohibitions against (i) Subject qualified handicapped per-
discrimination. sons to discrimination on the basis of
(a) No qualified handicapped person handicap; or
shall, on the basis of handicap, be ex- (ii) Defeat or substantially impair ac-
cluded from participation in, be denied complishment of the objectives of a
the benefits of, or otherwise be sub- program or activity with respect to
jected to discrimination under any pro- handicapped persons.
gram or activity conducted by the (4) The agency may not, in deter-
agency. mining the site or location of a facil-
(b)(1) The agency, in providing any ity, make selections the purpose or ef-
aid, benefit, or service, may not, di- fect of which would—
rectly or through contractual, licens- (i) Exclude handicapped persons
ing, or other arrangements, on the from, deny them the benefits of, or oth-
basis of handicap— erwise subject them to discrimination
157
§§ 807.131–807.139 49 CFR Ch. VIII (10–1–07 Edition)
under any program or activity con- program or activity, when viewed in its
ducted by the agency; or entirety, is readily accessible to and
(ii) Defeat or substantially impair usable by handicapped persons. This
the accomplishment of the objectives paragraph does not—
of a program or activity with respect (1) Necessarily require the agency to
to handicapped persons. make each of its existing facilities ac-
(5) The agency, in the selection of cessible to and usable by handicapped
procurement contractors, may not use persons; or
criteria that subject qualified handi- (2) Require the agency to take any
capped persons to discrimination on
action that it can demonstrate would
the basis of handicap.
result in a fundamental alteration in
(c) The exclusion of nonhandicapped
the nature of a program or activity or
persons from the benefits of a program
limited by Federal statute or Execu- in undue financial and administrative
tive order to handicapped persons or burdens. In those circumstances where
the exclusion of a specific class of agency personnel believe that the pro-
handicapped persons from a program posed action would fundamentally
limited by Federal statute or Execu- alter the program or activity or would
tive order to a different class of handi- result in undue financial and adminis-
capped persons is not prohibited by trative burdens, the agency has the
this part. burden of proving that compliance with
(d) The agency shall administer pro- § 807.150(a) would result in such alter-
grams and activities in the most inte- ation or burdens. The decision that
grated setting appropriate to the needs compliance would result in such alter-
of qualified handicapped persons. ation or burdens must be made by the
agency head or his or her designee
§§ 807.131–807.139 [Reserved] after considering all agency resources
available for use in the funding and op-
§ 807.140 Employment. eration of the conducted program or
No qualified handicapped person activity, and must be accompanied by
shall, on the basis of handicap, be sub- a written statement of the reasons for
jected to discrimination in employ- reaching that conclusion. If an action
ment under any program or activity would result in such an alteration or
conducted by the agency. The defini- such burdens, the agency shall take
tions, requirements, and procedures of any other action that would not result
section 501 of the Rehabilitation Act of in such an alteration or such burdens
1973 (29 U.S.C. 791), as established by but would nevertheless ensure that
the Equal Employment Opportunity handicapped persons receive the bene-
Commission in 29 CFR part 1613, shall fits and services of the program or ac-
apply to employment in federally con- tivity.
ducted programs or activities. (b) Methods. The agency may comply
§§ 807.141–807.148 [Reserved] with the requirements of this section
through such means as redesign of
§ 807.149 Program accessibility: Dis- equipment, reassignment of services to
crimination prohibited. accessible buildings, assignment of
Except as otherwise provided in aides to beneficiaries, home visits, de-
§ 807.150, no qualified handicapped per- livery of services at alternate acces-
son shall, because the agency’s facili- sible sites, alteration of existing facili-
ties are inaccessible to or unusable by ties and construction of new facilities,
handicapped persons, be denied the use of accessible rolling stock, or any
benefits of, be excluded from participa- other methods that result in making
tion in, or otherwise be subjected to its programs or activities readily ac-
discrimination under any program or cessible to and usable by handicapped
activity conducted by the agency. persons. The agency is nor required to
make structural changes in existing fa-
§ 807.150 Program accessibility: Exist- cilities where other methods are effec-
ing facilities. tive in achieving compliance with this
(a) General. The agency shall operate section. The agency, in making alter-
each program or activity so that the ations to existing buildings, shall meet
158
accessibility requirements to the ex- behalf of, or for the use of the agency
tent compelled by the Architectural shall be designed, constructed, or al-
Barriers Act of 1968, as amended (42 tered so as to be readily accessible to
U.S.C. 4151–4157), and any regulations and usable by handicapped persons.
implementing it. In choosing among The definitions, requirements, and
available methods for meeting the re- standards of the Architectural Barriers
quirements of this section, the agency Act (42 U.S.C. 4151–4157), as established
shall give priority to those methods in 41 CFR 101–19.600 to 101–19.607, apply
that offer programs and activities to to buildings covered by this section.
qualified handicapped persons in the
most integrated setting appropriate. §§ 807.152–807.159 [Reserved]
(c) Time period for compliance. The
agency shall comply with the obliga- § 807.160 Communications.
tions established under this section by (a) The agency shall take appropriate
June 6, 1986, except that where struc- steps to ensure effective communica-
tural changes in facilities are under- tion with applicants, participants, per-
taken, such changes shall be made by sonnel of other Federal entities, and
April 7, 1989, but in any event as expe-
members of the public.
ditiously as possible.
(d) Transition plan. In the event that (1) The agency shall furnish appro-
structural changes to facilities will be priate auxiliary aids where necessary
undertaken to achieve program acces- to afford a handicapped person an equal
sibility, the agency shall develop, by opportunity to participate in, and
October 7, 1986, a transition plan set- enjoy the benefits of, a program or ac-
ting forth the steps necessary to com- tivity conducted by the agency.
plete such changes. The agency shall (i) In determining what type of auxil-
provide an opportunity to interested iary aid is necessary, the agency shall
persons, including handicapped persons give primary consideration to the re-
or organizations representing handi- quests of the handicapped person.
capped persons, to participate in the (ii) The agency need not provide indi-
development of the transition plan by vidually prescribed devices, readers for
submitting comments (both oral and personal use or study, or other devices
written). A copy of the transition plan of a personal nature.
shall be made available for public in- (2) Where the agency communicates
spection. The plan shall, at a min- with applicants and beneficiaries by
imum— telephone, telecommunication devices
(1) Identify physical obstacles in the for deaf persons (TDD’s) or equally ef-
agency’s facilities that limit the acces- fective telecommunication systems
sibility of its programs or activities to shall be used.
handicapped persons; (b) The agency shall ensure that in-
(2) Describe in detail the methods terested persons, including persons
that will be used to make the facilities with impaired vision or hearing, can
accessible; obtain information as to the existence
(3) Specify the schedule for taking and location of accessible services, ac-
the steps necessary to achieve compli- tivities, and facilities.
ance with this section and, if the time (c) The agency shall provide signage
period of the transition plan is longer at a primary entrance to each of its in-
than one year, identify steps that will accessible facilities, directing users to
be taken during each year of the tran- a location at which they can obtain in-
sition period; and formation about accessible facilities.
(4) Indicate the official responsible The international symbol for accessi-
for implementation of the plan. bility shall be used at each primary en-
[51 FR 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5, trance of an accessible facility.
1986] (d) This section does not require the
agency to take any action that it can
§ 807.151 Program accessibility: New demonstrate would result in a funda-
construction and alterations. mental alteration in the nature of a
Each building or part of a building program or activity or in undue finan-
that is constructed or altered by, on cial and administrative burdens. In
159
§§ 807.161–807.169 49 CFR Ch. VIII (10–1–07 Edition)
those circumstances where agency per- (e) If the agency receives a complaint
sonnel believe that the proposed action over which it does not have jurisdic-
would fundamentally alter the program tion, it shall promptly notify the com-
or activity or would result in undue fi- plainant and shall make reasonable ef-
nancial and administrative burdens, forts to refer the complaint to the ap-
the agency has the burden of proving propriate government entity.
that compliance with § 807.160 would re- (f) The agency shall notify the Archi-
sult in such alteration or burdens. The tectural and Transportation Barriers
decision that compliance would result Compliance Board upon receipt of any
in such alteration or burdens must be complaint alleging that a building or
made by the agency head or his or her facility that is subject to the Architec-
designee after considering all agency tural Barriers Act of 1968, as amended
resources available for use in the fund- (42 U.S.C. 4151–4157), or section 502 of
ing and operation of the conducted pro- the Rehabilitation Act of 1973, as
gram or activity, and must be accom- amended (29 U.S.C. 792), is not readily
panied by a written statement of the accessible to and usable by handi-
reasons for reaching that conclusion. If capped persons.
an action required to comply with this (g) Within 180 days of the receipt of a
section would result in such an alter- complete complaint for which it has ju-
ation or such burdens, the agency shall risdiction, the agency shall notify the
take any other action that would not complainant of the results of the inves-
result in such an alteration or such tigation in a letter containing—
burdens but would nevertheless ensure (1) Findings of fact and conclusions
that, to the maximum extent possible, of law;
handicapped persons receive the bene- (2) A description of a remedy for each
fits and services of the program or ac- violation found;
tivity. (3) A notice of the right to appeal.
(h) Appeals of the findings of fact and
§§ 807.161–807.169 [Reserved] conclusions of law or remedies must be
filed by the complainant within 90 days
§ 807.170 Compliance procedures. of receipt from the agency of the letter
(a) Except as provided in paragraph required by § 807.170(g). The agency
(b) of this section, this section applies may extend this time for good cause.
to all allegations of discrimination on (i) Timely appeals shall be accepted
the basis of handicap in programs or and processed by the head of the agen-
activities conducted by the agency. cy.
(b) The agency shall process com- (j) The head of the agency shall no-
plaints alleging violations of section tify the complainant of the results of
504 with respect to employment accord- the appeal within 60 days of the receipt
ing to the procedures established by of the request. If the head of the agen-
the Equal Employment Opportunity cy determines that additional informa-
Commission in 29 CFR part 1613 pursu- tion is needed from the complainant,
ant to section 501 of the Rehabilitation he or she shall have 60 days from the
Act of 1973 (29 U.S.C. 791). date of receipt of the additional infor-
(c) Director, Bureau of Administra- mation to make his or her determina-
tion shall be responsible for coordi- tion on the appeal.
nating implementation of this section. (k) The time limits cited in para-
Complaints may be sent to Director, graphs (g) and (j) of this section may be
Bureau of Administration, 800 Inde- extended with the permission of the
pendence Ave., SW., Room 802, Wash- Assistant Attorney General.
ington, DC 20594. (l) The agency may delegate its au-
(d) The agency shall accept and in- thority for conducting complaint in-
vestigate all complete complaints for vestigations to other Federal agencies,
which it has jurisdiction. All complete except that the authority for making
complaints must be filed within 180 the final determination may not be
days of the alleged act of discrimina- delegated to another agency.
tion. The agency may extend this time [51 FR 4579, Feb. 5, 1986, as amended at 51 FR
period for good cause. 4579, Feb. 5, 1986]
160
PART 821—RULES OF PRACTICE IN Subpart G—Initial Decision

AIR SAFETY PROCEEDINGS 821.42 Initial decision by law judge.
821.43 Effect of law judge’s initial decision
Subpart A—General Provisions or appealable order and appeal there-
from.
Sec.
821.1 Definitions. Subpart H—Appeal from Initial Decision
821.2 Applicability and description of part.
821.3 Description of docket numbering sys- 821.47 Notice of appeal.
tem. 821.48 Briefs and oral argument.
821.49 Issues on appeal.
Subpart B—General Rules Applicable to 821.50 Petition for rehearing, reargument,
Petitions for Review, Appeals to the reconsideration or modification of an
Board, and Appeals from Law Judges’ order of the Board.
Initial Decisions and Appealable Or-
ders Subpart I—Special Rules Applicable to
Proceedings Involving Emergency and
821.6 Appearances and rights of witnesses. Other Immediately Effective Orders
821.7 Filing of documents with the Board.
821.8 Service of documents. 821.52 General.
821.9 Intervention and amicus appearance. 821.53 Appeal.
821.10 Computation of time. 821.54 Petition for review of Administra-
821.11 Extensions of time. tor’s determination of emergency.
821.12 Amendment and withdrawal of plead- 821.55 Complaint, answer to complaint, mo-
ings. tions and discovery.
821.13 Waivers. 821.56 Hearing and initial decision or ap-
821.14 Motions. pealable order of law judge.
821.15 Motion to disqualify a Board Member. 821.57 Procedure on appeal.
821.16 Interlocutory appeals from law
judges’ rulings on motions. Subpart J—Ex Parte Communications
821.17 Motions to dismiss, for judgment on
the pleadings and for summary judg- 821.60 Definitions.
ment. 821.61 Prohibited ex parte communications.
821.18 Motion for a more definite statement. 821.62 Procedures for handling ex parte
821.19 Depositions and other discovery. communications.
821.20 Subpoenas, witness fees, and appear- 821.63 Requirement to show cause and impo-
ances of Board Members, officers and em- sition of sanction.
ployees.
821.21 Official notice. Subpart K—Judicial Review of Board
Orders
Subpart C—Special Rules Applicable to
Proceedings Under 49 U.S.C. 44703 821.64 Judicial review.
AUTHORITY: 49 U.S.C. 1101–1155, 44701–44723,
821.24 Initiation of proceeding.
46301; unless otherwise noted.
821.25 Burden of proof.
821.26 Motion to dismiss petition for review SOURCE: 68 FR 22625, Apr. 29, 2003, unless
for lack of standing. otherwise noted.
Subpart D—Special Rules Applicable to

Proceedings Under 49 U.S.C. 44709
Subpart A—General Provisions
821.30 Initiation of proceeding. § 821.1 Definitions.
821.31 Complaint procedure. (a) As used in this part:
821.32 Burden of proof. Administrator means the Adminis-
821.33 Motion to dismiss stale complaint.
trator of the Federal Aviation Admin-
Subpart E—Law Judges istration (FAA);
Airman certificate means any certifi-
821.35 Assignment, duties and powers. cate issued by the FAA to an airman,
and shall include medical certificates
Subpart F—Hearing required for airmen;
821.37 Notice of hearing. Appeal from an initial decision means a
request to the Board to review a law
821.38 Evidence.
821.39 Argument and submissions. judge’s decision;
821.40 Record.
161
Appeal to the Board means a request which the Administrator seeks to

to the Board for the review by a law amend, modify, suspend or revoke a
judge of an order of the Administrator; certificate, or impose a civil penalty;
Appealable order means an order of a Petition for review means a petition
law judge that has the effect of termi- filed pursuant to 49 U.S.C. 44703 for re-
nating the proceeding, such as one view of the Administrator’s denial of
granting a motion to dismiss in lieu of an application for issuance or renewal
an answer, as provided in § 821.17, or of an airman certificate;
one granting a motion for judgment on Petitioner means a person who has
the pleadings or summary judgment. filed a petition for review;
Appealable order does not include an Pilot means a person who holds a
order granting in part a motion to dis- pilot certificate issued under Part 61 of
miss and requiring an answer to any Title 14 of the Code of Federal Regula-
remaining allegation or allegations, an tions;
order granting in part judgment on the Repairman means a person who holds
pleadings or summary judgment, or a a repairman certificate issued under
ruling on an interlocutory matter; Part 65 of Title 14 of the Code of Fed-
Board means the National Transpor- eral Regulations;
tation Safety Board; Respondent means the holder of a cer-
Case Manager means the officer of the tificate who has appealed to the Board
Board’s Office of Administrative Law from an order of the Administrator
Judges responsible for the processing of amending, modifying, suspending or re-
cases within that office; voking a certificate, or imposing a
Certificate means any certificate civil penalty.
issued by the Administrator under 49 (b) Terms defined in 49 U.S.C. Chap-
U.S.C. Chapter 447; ters 11, 447 and 463 are used as so de-
Chief Law Judge means the adminis- fined.
trative law judge in charge of the adju-
dicative function of the Board’s Office § 821.2 Applicability and description of
of Administrative Law Judges; part.
Complaint means an order of the Ad- The provisions of this part govern all
ministrator, reissued for pleading pur- air safety proceedings, including pro-
poses, from which an appeal to the ceedings before a law judge on petition
Board has been taken pursuant to sec- for review of the denial of any airman
tions 49 U.S.C. 44106, 44709 or 46301; certificate (including a medical certifi-
Emergency order means an order of cate), or on appeal from any order of
the Administrator issued pursuant to the Administrator amending, modi-
49 U.S.C. 44709, which recites that an fying, suspending or revoking a certifi-
emergency exists and that safety in air cate. The provisions of this part also
commerce or air transportation and govern all proceedings on appeal from
the public interest require the imme- an order of the Administrator imposing
diate effectiveness of such order; a civil penalty on a flight engineer,
Flight engineer means a person who mechanic, pilot or repairman, or a per-
holds a flight engineer certificate son acting in such capacity. All pro-
issued under Part 63 of Title 14 of the ceedings on appeal to the Board from
Code of Federal Regulations; any initial decision or order of a law
Initial decision means the law judge’s judge are also governed by this part.
decision on the issue or issues remain-
ing for disposition at the close of a § 821.3 Description of docket num-
hearing; bering system.
Law judge means the administrative In addition to sequential numbering
law judge assigned to hear and preside of cases as received, each case formally
over the respective proceeding; handled by the Board will receive a let-
Mechanic means a person who holds a ter prefix. These letter prefixes reflect
mechanic certificate issued under Part the case type: ‘‘SE’’ for safety enforce-
65 of Title 14 of the Code of Federal ment (certificate suspension/revoca-
Regulations; tion) cases; ‘‘SM’’ (safety medical) for
Order means the document (some- cases involving denials of medical cer-
times also termed the complaint) by tification; ‘‘CD’’ for cases involving
162
non-medical certificate denials; ‘‘SR’’ § 821.7 Filing of documents with the

for cases involving safety registration Board.
issues under 49 U.S.C. 44101 et seq.; (a) Filing address, method and date of
‘‘CP’’ for cases involving the imposi- filing. (1) Except as provided in para-
tion of civil penalties; ‘‘NA’’ for cases graph (a)(2) of this section, documents
in which a petition for review or appeal are to be filed with the Office of Ad-
is not accepted because of a patent pro- ministrative Law Judges, National
cedural deficiency; and ‘‘EAJA’’ for Transportation Safety Board, 490
cases involving applications for fees L’Enfant Plaza East, SW., Room 4704,
and expenses under the Equal Access to Washington, DC 20594, and addressed to
Justice Act, governed by Part 826. the assigned law judge, if any. If the
proceeding has not yet been assigned to
a law judge, documents shall be ad-
Subpart B—General Rules Appli- dressed to the Case Manager.
cable to Petitions for Review, (2) Subsequent to the filing of a no-
Appeals to the Board, and tice of appeal from a law judge’s initial
Appeals From Law Judges Ini- decision or appealable order, the
tial Decisions and Appealable issuance of a decision permitting an in-
Orders terlocutory appeal, or the expiration of
the period within which an appeal from
§ 821.6 Appearances and rights of wit- the law judge’s initial decision or ap-
nesses. pealable order may be filed, all docu-
ments are to be filed with the Office of
(a) Any party to a proceeding may General Counsel, National Transpor-
appear and be heard in person, or by an tation Safety Board, 490 L’Enfant
attorney or other representative des- Plaza East, SW., Room 6401, Wash-
ignated by that party. Upon hearing, ington, DC 20594.
and for good cause shown, the Board (3) Documents shall be filed by per-
may suspend or bar any person from sonal delivery, by U.S. Postal Service
practicing before it. first-class mail or by overnight deliv-
(b) Any person appearing in person in ery service. Except as specifically pro-
any proceeding governed by this part vided in Subpart I (governing emer-
may be accompanied, represented and gency proceedings), facsimile filing is
advised, and may be examined by, his limited. Documents to be filed with a
or her own counsel or representative. law judge or the Case Manager may be
(c) Any person who submits data or transmitted by facsimile, but such fil-
evidence in a proceeding governed by ing must be followed, no later than the
this part may, by timely request, pro- next business day, by transmission of
cure a copy of any document submitted the original by personal delivery, first-
by him or her, or a copy of any tran- class mail or overnight delivery serv-
script made of his or her testimony, on ice. Facsimile filing of documents to be
payment of reasonable costs. Original filed with the Office of General Counsel
documents, data or evidence may be re- is not permitted unless specifically au-
thorized under Subpart I or requested
tained by a party upon permission of
by that office.
the law judge or the Board, upon sub-
(4) Documents shall be deemed filed
stitution of a copy thereof.
on the date of personal delivery; on the
(d) Any party to a proceeding who is send date shown on the facsimile
represented by an attorney or rep- (where facsimile service is permitted
resentative shall notify the Board of under paragraph (a)(3) of this section
the name, address and telephone num- or Subpart I); and, for mail delivery
ber of that attorney or representative. service, on the mailing date shown on
In the event of a change in representa- the certificate of service, on the date
tion, the party shall notify the Board shown on the postmark if there is no
(in the manner provided in § 821.7) and certificate of service, or on the mailing
the other parties to the proceeding date shown by other evidence if there
(pursuant to § 821.8) before the new at- is no certificate of service and no post-
torney or representative may partici- mark. Where the document bears a
pate in the proceeding in any way. postmark that cannot reasonably be
163
reconciled with the mailing date shown Case Manager. All motions, requests
on the certificate of service, the docu- and documents submitted subsequent
ment will be deemed filed on the date to the filing of a notice of appeal from
of the postmark. a law judge’s initial decision or appeal-
(b) Number of copies. Service on the able order, or a decision permitting an
Board of petitions for review, appeals interlocutory appeal, or after the expi-
from orders of the Administrator, and ration of the period within which an
notices of appeal from law judges’ ini- appeal from the law judge’s initial de-
tial decisions and appealable orders cision or appealable order may be filed,
shall be by executed original and 3 cop- shall be addressed to the Board’s Gen-
ies. Service of all other documents eral Counsel.
shall be by executed original and one
copy. Copies need not be signed, but § 821.8 Service of documents.
the name of the person signing the (a) Who must be served. (1) Copies of
original shall be shown thereon. all documents filed with the Board
(c) Form. (1) Petitions for review, ap- must be served on (i.e., sent to) all
peals to the Board from orders of the other parties to the proceeding, on the
Administrator, and notices of appeal date of filing, by the person filing
from law judges’ initial decisions and them. A certificate of service shall be a
appealable orders may be in the form of part of each document and any copy or
a letter signed by the petitioner or ap- copies thereof tendered for filing, and
pealing party, and shall be typewritten shall certify concurrent service on the
or in legible handwriting. Board and the parties. A certificate of
(2) Documents filed with the Board service shall be in substantially the
consisting of more than one page may following form:
be affixed only in the upper left-hand
I hereby certify that I have this day served
corner by staple or clip, and shall not
the foregoing [specify document] on the fol-
be bound or hole-punched. Any docu- lowing party’s counsel or designated rep-
ment failing to comply with this re- resentatives [or party, if without counsel or
quirement is subject to being returned representative], at the address indicated, by
to the filing party. [specify the method of service (e.g., first-
(d) Content. Each document filed with class mail, personal service, etc.)]
the Board shall contain a concise and [List names and addresses of all persons
complete statement of the facts relied served]
upon, and the relief sought, by the fil- Dated at ll, this llllday of ll 20ll
ing party. (Signature) lllllllllllllllll
For (on behalf of) llllllllllllll
(e) Subscription. The original of every
document filed shall be signed by the (2) Service shall be made on the per-
filing party, or by that party’s attor- son designated in accordance with
ney or other representative. § 821.7(f) to receive service. If no such
(f) Designation of person to receive serv- person has been designated, service
ice. The initial document filed by a shall be made directly on the party.
party in a proceeding governed by this (b) Method of service. (1) Service of
part shall show on the first page the documents by any party on any other
name, address and telephone number of party shall be accomplished by the
the person or persons who may be method prescribed in § 821.7(a)(3) for the
served with documents on that party’s filing of documents with the Board.
behalf. (2) Notices of hearing, written initial
(g) To whom directed. All motions, re- decisions, law judges’ appealable orders
quests and documents submitted in and Board orders on appeal shall be
connection with petitions for review served by the Board on parties other
and appeals to the Board from orders of than the Administrator by certified
the Administrator shall designate, and mail. Such documents may be served
be addressed to, the law judge to whom on the Administrator by first-class
the proceeding has been assigned, if mail or facsimile. The Board may serve
any. If the proceeding has not yet been all other documents on the parties by
assigned to a law judge, the document first-class mail or facsimile.
shall bear the designation ‘‘unas- (c) Where service shall be made. Except
signed,’’ and shall be addressed to the for personal service, parties shall be
164
served at the address appearing in the tionally filed with motion for leave.
official record. If no address for service The motion for leave shall identify the
on the Administrator is designated in interest of the movant and shall state
the record, documents shall be ad- the reasons why a brief of amicus cu-
dressed for service to the Office of riae is desirable. Such brief and motion
Chief Counsel, 800 Independence Ave- shall be filed within the briefing time
nue, SW., Washington, DC 20591. In the allowed the party whose position the
case of an agent designated by an air brief would support, unless good cause
carrier under 49 U.S.C. 46103, service for late filing is shown, in which event
may be accomplished only at the the General Counsel may provide an
agent’s office or usual place of resi- opportunity for response in deter-
dence. mining whether to accept the amicus
(d) Presumption of service. There shall brief.
be a presumption of lawful service:
(1) When receipt has been acknowl- § 821.10 Computation of time.
edged by a person who customarily or In computing any period of time pre-
in the ordinary course of business re- scribed or allowed by this part, by no-
ceives mail at the residence or prin- tice or order of a law judge or the
cipal place of business of the party or
Board, or by any applicable statute,
of the person designated under § 821.7(f);
the date of the act, event or default
or
after which the designated period of
(2) When a properly addressed enve-
time begins to run is not to be included
lope, sent to the most current address
in the computation. The last day of the
in the official record, by regular, reg-
period so computed is to be included
istered or certified mail, has been re-
unless it is a Saturday, Sunday or legal
turned as unclaimed or refused.
holiday for the Board, in which event
(e) Date of service. The date of service
the period runs until the end of the
shall be determined in the same man-
next day which is not a Saturday, Sun-
ner as the filing date is determined
day or legal holiday. In all cases, Sat-
under § 821.7(a)(4).
urdays, Sundays and legal holidays for
§ 821.9 Intervention and amicus ap- the Board shall be included in the com-
pearance. putation of time, except they shall not
be included in computations of time re-
(a) Intervention. Any person may
specting petitions for review of deter-
move for leave to intervene in a pro-
minations as to the existence of emer-
ceeding, and may become a party
gencies under § 821.54.
thereto, if it is found that such person
has a property, financial or other le- § 821.11 Extensions of time.
gitimate interest that will not be ade-
quately represented by the existing (a) On written request filed with the
parties, and that such intervention will Board and served on all other parties,
not unduly broaden the issues or delay or oral request with any extension
the proceeding. Except for good cause granted confirmed in writing and
shown, no motion for leave to inter- served on all other parties by the re-
vene will be entertained if filed less questor, and for good cause shown, the
than 15 days prior to the hearing. The law judge or the Board may grant an
extent to which an intervenor may par- extension of time to file any document;
ticipate in the proceeding is wholly however, no extension of time will be
within the law judge’s discretion. granted for the filing of a document to
(b) Amicus curiae briefs. A brief of which a statutory time limit applies.
amicus curiae in a matter on appeal (b) Extensions of time to file peti-
from a law judge’s initial decision or tions for reconsideration shall not be
appealable order may be filed, if ac- granted upon a showing of good cause,
companied by written consent of all but only in extraordinary cir-
the parties, or by leave of the General cumstances.
Counsel if, in his or her opinion, the (c) The General Counsel is authorized
brief will not unduly broaden the mat- to grant unopposed extensions of time
ters at issue or prejudice any party to on timely oral request without a show-
the proceeding. A brief may be condi- ing of good cause in cases on appeal to
165
the Board from a law judge’s initial de- quested, and shall be accompanied by
cision or appealable order. Written affidavits or other evidence relied
confirmation of such a grant of exten- upon. Motions introduced during a
sion of time must promptly be sent by hearing may be made orally on the
the requesting party to the Board and record, unless the law judge directs
served on all other parties to the pro- otherwise.
ceeding. (c) Replies to motions. Except when a
motion is made during a hearing, any
§ 821.12 Amendment and withdrawal party may file a reply, accompanied by
of pleadings. such affidavits or other evidence as
(a) Amendment. At any time more that party desires to rely upon, within
than 15 days prior to the hearing, a 15 days after the date of service of the
party may amend its pleadings by fil- motion on that party. Upon notice to
ing an amended pleading with the the parties, the law judge or the Board
Board and serving copies thereof on all may, where appropriate, set a shorter
other parties. After that time, amend- time for filing a reply. Where a motion
ment shall be allowed only at the dis- is made during a hearing, the reply
cretion of the law judge. In the case of may be made at the hearing, or orally
amendment of an answerable pleading, or in writing within such time as the
the law judge shall allow any adverse law judge may fix.
party a reasonable time to object or (d) Oral argument; briefs. No oral ar-
answer. Amendments to complaints gument will be heard on a motion un-
shall be consistent with the require- less the law judge or the Board directs
ments of 49 U.S.C. 44709(c) and 44710(c). otherwise.
(b) Withdrawal. Except in the case of (e) Effect of pendency of motions. Ex-
a petition for review, an appeal to the cept as provided in §§ 821.17(a) and
Board, a complaint, or an appeal from 821.18(a), the filing or pendency of a
a law judge’s initial decision or appeal- motion shall not automatically alter
able order, pleadings may be with- or extend the time fixed in this part (or
drawn only upon approval of the law any extension thereof previously grant-
judge or the Board. ed) for the parties to take any actions.
§ 821.13 Waivers. § 821.15 Motion to disqualify a Board
Waivers of any rights provided by Member.
statute or regulation shall either be in A motion requesting that a Board
writing or by stipulation made at the Member disqualify himself or herself
hearing and entered into the record, from participating in a proceeding
and shall set forth the precise terms under this part shall be filed in writing
and conditions of the waiver. with the Board.
§ 821.14 Motions. § 821.16 Interlocutory appeals from
(a) General. Any application to a law law judges’ rulings on motions.
judge or to the Board for an order or Rulings of law judges on motions
ruling not otherwise provided for in which are not dispositive of the pro-
this part shall be by motion. Prior to ceeding as a whole may not be appealed
the assignment of the proceeding to a to the Board prior to its consideration
law judge, all motions shall be ad- of the entire proceeding, except in ex-
dressed to the Case Manager. There- traordinary circumstances and with
after, and prior to the expiration of the the consent of the law judge who made
period within which an appeal from the the ruling. Interlocutory appeals shall
law judge’s initial decision may be be disallowed unless the law judge
filed, all motions shall be addressed to finds, either orally on the record or in
the law judge. At all other times, mo- writing, that to allow such an appeal is
tions shall be addressed to the General necessary to prevent substantial det-
Counsel. riment to the public interest or undue
(b) Form and content. Unless made prejudice to a party. If an interlocu-
during a hearing, motions shall be tory appeal is allowed, any party may
made in writing, shall state with par- file a brief with the Board within such
ticularity the grounds for the relief re- time as the law judge directs. No oral
166
argument will be heard unless the and certain. The motion shall cite the
Board directs otherwise. defects complained of and the details
sought. If the motion is granted and
§ 821.17 Motions to dismiss, for judg- the law judge’s order is not complied
ment on the pleadings and for sum- with within 15 days after service there-
mary judgment. of, the law judge shall strike the por-
(a) Motions to dismiss petition for re- tion or portions of the petition for re-
view or complaint. A motion to dismiss view or complaint to which the motion
a petition for review or a complaint is directed. If the motion is denied, the
may be filed in lieu of an answer, with- moving party shall file an answer with-
in the time limit for filing an answer in 10 days after service of the law
set forth in § 821.24(c) or § 821.31(b). If judge’s order on the motion.
such motion is not granted in its en- (b) A party may file a motion to clar-
tirety, the answer shall be filed within ify an answer in the event that the an-
10 days after service of the law judge’s swer fails to respond clearly to the pe-
order on the motion. tition for review or the complaint.
(b) Motions to dismiss for lack of juris-
diction. A motion to dismiss on the § 821.19 Depositions and other dis-
ground that the Board lacks jurisdic- covery.
tion may be made by any party at any (a) Depositions. After a petition for
time. review or a complaint is filed, any
(c) Motions for judgment on the plead- party may take the testimony of any
ings. A party may file a motion for person, including a party, by deposi-
judgment on the pleadings on the basis tion, upon oral examination or written
that no answer has been filed, or that questions, without seeking prior Board
the pleadings disclose that there are no approval. Reasonable notice shall be
material issues of fact to be resolved given in writing to the other parties,
and that party is entitled to judgment stating the name of the witness and
as a matter of law. the time and place of the taking of the
(d) Motions for summary judgment. A deposition. A copy of any notice of dep-
party may file a motion for summary osition shall be served on the law judge
judgment on the basis that the plead- to whom the proceeding has been as-
ings and other supporting documenta- signed or, if no law judge has been as-
tion establish that there are no mate- signed, on the Case Manager. In other
rial issues of fact to be resolved and respects, the taking of any deposition
that party is entitled to judgment as a shall be in compliance with the provi-
matter of law. sions of 49 U.S.C. 46104(c).
(e) Appeals of dismissal, judgment on (b) Exchange of information by the par-
the pleadings and summary judgment or- ties. At any time before the hearing, at
ders. When a law judge grants a motion the request of any party, the parties
to dismiss, a motion for judgment on may exchange information, such as
the pleadings or a motion for summary witness lists, exhibit lists, curricula
judgment, and terminates the pro- vitae and bibliographies of expert wit-
ceeding without a hearing, an appeal of nesses, and other pertinent data. Any
such order to the Board may be filed party may also use written interrog-
pursuant to the provisions of § 821.47. atories, requests for admissions and
When a motion to dismiss, a motion for other discovery tools. The requesting
judgment on the pleadings or a motion party shall set the time for compliance
for summary judgment is granted in with the request, which shall be rea-
part, § 821.16 applies. sonable and give due consideration to
the closeness of the hearing, especially
§ 821.18 Motion for a more definite in emergency proceedings governed by
statement. Subpart I. Copies of discovery requests
(a) A party may, in lieu of an answer, and responses shall be served on the
file a motion requesting that the peti- law judge to whom the proceeding has
tioner’s statement of reasons and sup- been assigned or, if no law judge has
porting facts in a petition for review or been assigned, on the Case Manager. In
the Administrator’s allegations of fact the event of a dispute, either the as-
in a complaint be made more definite signed law judge or another law judge
167
delegated this responsibility (if a law and expenses shall be paid by the party
judge has not yet been assigned or if at whose request the witness is subpoe-
the assigned law judge is unavailable) naed or appears. The Board may de-
may issue an appropriate order, includ- cline to process a proceeding further
ing an order directing compliance with should a party fail to compensate a
any ruling previously made with re- witness pursuant to this paragraph.
spect to discovery. (c) Board Members, officers and employ-
(c) Use of the Federal Rules of Civil ees. In order to encourage a free flow of
Procedure. Those portions of the Fed- information to the Board’s accident in-
eral Rules of Civil Procedure that per- vestigators, the Board disfavors the use
tain to depositions and discovery may of its personnel in enforcement pro-
be used as a general guide for discovery ceedings. Therefore, the provisions of
practice in proceedings before the paragraph (a) of this section are not
Board, where appropriate. The Federal applicable to Board Members, officers
Rules and the case law that construes and employees, or the production of
them shall be considered by the Board documents in their custody. Applica-
and its law judges as instructive, rath- tions for subpoenas requiring the at-
er than controlling. tendance of such persons, or the pro-
(d) Failure to provide or preserve evi- duction of such documents, must be ad-
dence. The failure of any party to com- dressed to the General Counsel, and
ply with a law judge’s order compelling shall set forth the need of the moving
discovery, or to cooperate with a time- party for the testimony or documents
ly request for the preservation of evi- sought, and a showing that such mate-
dence, may result in a negative infer- rial is not now, and was not otherwise,
ence against that party with respect to reasonably available from other
the matter sought and not provided or sources. Only upon the General Coun-
preserved, a preclusion order, dismissal sel’s written approval for the issuance
or other relief deemed appropriate by of a subpoena requiring a Board Mem-
the law judge. ber, officer or employee to provide tes-
timony and/or to produce documents in
§ 821.20 Subpoenas, witness fees, and connection with discovery or at a hear-
appearances of Board Members, of- ing may a law judge issue such a sub-
ficers and employees. poena. The law judge shall not permit
(a) Subpoenas. Except as provided in the testimony or documentary evi-
paragraph (c) of this section, subpoenas dence provided by a Board Member, of-
requiring the attendance of witnesses, ficer or employee to include any ex-
or the production of documentary or pression of opinion, or any account of
tangible evidence, for the purpose of statements of a party made during the
taking depositions or at a hearing, may Board’s investigation of any accident.
be issued by the presiding law judge (or
the chief law judge, if the proceeding § 821.21 Official notice.
has not been assigned to a law judge) Where a law judge or the Board in-
upon application by any party. The ap- tends to take official notice of a mate-
plication shall show the general rel- rial fact not appearing in the evidence
evance and reasonable scope of the evi- in the record, notice shall be given to
dence sought. Any person upon whom a all parties, who may within 10 days file
subpoena is served may, within 7 days a petition disputing that fact.
after service of the subpoena, but in
any event prior to the return date
thereof, file with the law judge who Subpart C—Special Rules Appli-
issued the subpoena a motion to quash cable to Proceedings Under
or modify the subpoena, and such filing 49 U.S.C. 44703
shall stay the effectiveness of the sub-
poena pending final action by the law § 821.24 Initiation of proceeding.
judge on the motion. (a) Petition for review. Where the Ad-
(b) Witness fees. Witnesses shall be en- ministrator has denied an application
titled to the same fees and expenses for for the issuance or renewal of an air-
mileage as are paid to witnesses in the man certificate, the applicant may file
courts of the United States. The fees with the Board a petition for review of
168
the Administrator’s denial. The peti- § 821.25 Burden of proof.

tion must be filed with the Board with- In proceedings under 49 U.S.C. 44703,
in 60 days after the date on which no- the burden of proof shall be upon the
tice of the Administrator’s denial was petitioner.
served on the petitioner.
(b) Form and content of petition. The § 821.26 Motion to dismiss petition for
petition may be in letter form. It shall review for lack of standing.
identify the Administrator’s certificate Upon motion by the Administrator
denial action, and contain a complete within the time limit for filing an an-
but concise statement of the reasons swer, a petition for review shall be dis-
why the petitioner believes the certifi- missed for lack of standing in either of
cate denial was erroneous. the following instances:
(c) Answer to petition. The Adminis- (a) If the petition seeks the issuance
trator shall file an answer to the peti- of the same type of certificate that was
tion for review within 20 days after the under an order of suspension on the
date of service of the petition. The an- date of the denial; or
swer shall specifically address each of (b) If the petition seeks the issuance
the reasons set forth in the petition as of the same type of certificate that had
to why the petitioner believes the cer- been revoked within one year of the
tificate denial was erroneous. date of the denial, unless the order re-
(d) Stay of proceeding pending request voking such certificate provides other-
for special issuance (restricted) medical wise.
certificate. The Board lacks the author-
ity to review requests for special Subpart D—Special Rules Applica-
issuance (restricted) medical certifi- ble to Proceedings Under 49
cates, or to direct that they be issued. U.S.C. 44709
Where a request for a special issuance
certificate has been filed with the Ad- § 821.30 Initiation of proceeding.
ministrator pursuant to the Federal (a) Appeal. Where the Administrator
Aviation Regulations, the Board will, has issued an order amending, modi-
upon the petitioner’s written request, fying, suspending or revoking a certifi-
hold a petition for review of a denial of cate, the affected certificate holder (re-
an unrestricted medical certificate in spondent) may file with the Board an
abeyance pending final action by the appeal from the Administrator’s order.
Administrator on the special issuance The respondent shall simultaneously
request, but for no longer than 180 days serve a copy of the appeal on the Ad-
after the date on which the unre- ministrator. The appeal must be filed
stricted medical certificate denial was with the Board within 20 days after the
issued. date on which the Administrator’s
(e) New evidence. Where review of a order was served on the respondent, ex-
denial of an unrestricted medical cer- cept as provided with respect to emer-
tificate is at issue, if the petitioner has gency and other immediately effective
undergone medical testing or evalua- orders under § 821.53(a).
tion in addition to that already sub- (b) Form and content of appeal. The
mitted or known to the Administrator, appeal may be in letter form. It shall
and wishes to introduce the results identify the certificate or certificates
into the record, such new medical evi- affected and the Administrator’s action
dence must be served on the Adminis- from which the appeal is sought.
trator at least 30 days prior to the (c) Effect of filing timely appeal with
hearing. Absent good cause, failure to the Board. Timely filing with the Board
so timely serve the new medical evi- of an appeal from an order of the Ad-
dence on the Administrator will result ministrator shall postpone the effec-
in the exclusion of such evidence from tive date of the order until final dis-
the record. The Administrator may position of the appeal by the law judge
amend his or her answer to respond to or the Board, except where the order
such new medical evidence within 10 appealed from is an emergency or other
days after the date on which he or she immediately effective order, in which
was served therewith. case the effectiveness of the order will
169
not be so stayed during the pendency of stale pursuant to the following provi-
the appeal. sions:
(a) In those cases where the com-
§ 821.31 Complaint procedure. plaint does not allege lack of qualifica-
(a) Filing, time of filing and service on tion of the respondent:
respondent. The order of the Adminis- (1) The Administrator shall be re-
trator from which an appeal has been quired to show, by reply filed within 15
taken shall serve as the complaint. The days after the date of service of the re-
Administrator shall (except as provided spondent’s motion, that good cause ex-
isted for the delay in providing such
in § 821.55(a) with respect to emergency
advice, or that the imposition of a
proceedings) file the complaint with
sanction is warranted in the public in-
the Board within 10 days after the date
terest, notwithstanding the delay or
on which he or she was served with the
the reasons therefor.
appeal by the respondent, and shall si-
(2) If the Administrator does not es-
multaneously serve a copy of the com-
tablish good cause for the delay, or for
plaint on the respondent. If the Admin-
the imposition of a sanction in the pub-
istrator has determined that the re-
lic interest notwithstanding the delay,
spondent lacks qualification to be a
the law judge shall dismiss the stale al-
certificate holder, the order filed as the
legations and proceed to adjudicate the
complaint, or an accompanying state-
remaining portion of the complaint, if
ment, shall identify the pleaded factual
any.
allegations on which this determina- (b) In those cases where the com-
tion is based. plaint alleges lack of qualification of
(b) Answer to complaint. The respond- the respondent, the law judge shall
ent shall (except as provided in first determine whether an issue of
§ 821.55(b) with respect to emergency lack of qualification would be pre-
proceedings) file with the Board an an- sented if all of the allegations, stale
swer to the complaint within 20 days and timely, are assumed to be true. If
after the date on which the complaint so, the law judge shall deny the re-
was served by the Administrator, and spondent’s motion. If not, the law
shall simultaneously serve a copy of judge shall proceed as in paragraph (a)
the answer on the Administrator. Fail- of this section.
ure by the respondent to deny the
truth of any allegation or allegations
in the complaint may be deemed an ad-
Subpart E—Law Judges
mission of the truth of the allegation § 821.35 Assignment, duties and pow-
or allegations not answered. The an- ers.
swer shall also identify any affirmative
(a) Assignment of law judge and dura-
defenses that the respondent intends to
tion of assignment. The chief law judge
raise at the hearing. The answer may
shall assign a law judge to preside over
be amended to include affirmative de-
each proceeding. Until such assign-
fenses in accordance with the provi-
ment, motions, requests and docu-
sions of § 821.12(a).
ments shall be addressed to the Case
§ 821.32 Burden of proof. Manager for handling by the chief law
judge, who may handle these matters
In proceedings under 49 U.S.C. 44709, personally or delegate them to other
the burden of proof shall be upon the law judges for decision. After assign-
Administrator. ment of a proceeding to a law judge, all
motions, requests and documents shall
§ 821.33 Motion to dismiss stale com- be addressed to that law judge. The au-
plaint. thority of the assigned law judge shall
Where the complaint states allega- terminate upon the expiration of the
tions of offenses which occurred more period within which appeals from ini-
than 6 months prior to the Administra- tial decisions or appealable orders may
tor’s advising the respondent as to rea- be filed, or upon the law judge’s with-
sons for proposed action under 49 drawal from the proceeding.
U.S.C. 44709(c), the respondent may (b) Powers of law judge. Law judges
move to dismiss such allegations as shall have the following powers:
170
(1) To give notice of, and to hold, pre- ience of the hearing site to scheduled
hearing conferences and hearings, and transportation service. Only in the
to consolidate proceedings which in- most extraordinary circumstances may
volve a common question of law or consideration be given to locating a
fact; hearing in a foreign country.
(2) To hold conferences, before or dur- (b) Hearing in several sessions. Where
ing the hearing, for the settlement or appropriate, the law judge may hold a
simplification of issues; hearing in more than one session, at
(3) To issue subpoenas, and to take
the same or different locations.
depositions or cause depositions to be
taken; § 821.38 Evidence.
(4) To dispose of procedural requests
or similar matters; Each party shall have the right to
(5) To rule on motions; present a case-in-chief, or defense, by
(6) To regulate the conduct of hear- oral and documentary evidence, to sub-
ings; mit evidence in rebuttal, and to con-
(7) To administer oaths and affirma- duct such cross-examination as may be
tions; required for a full and true disclosure
(8) To examine witnesses; of the facts. Hearsay evidence (includ-
(9) To receive evidence and rule upon ing hearsay within hearsay, where
objections and offers of proof; and there are acceptable circumstantial in-
(10) To issue initial decisions. dicia of trustworthiness) shall be ad-
(c) Disqualification. A law judge shall missible. All material and relevant evi-
withdraw from a proceeding if, at any dence should be admitted, but the law
time, he or she deems himself or her-
judge may exclude unduly repetitious
self disqualified. If the law judge does
evidence.
not withdraw, and if an appeal from
the law judge’s initial decision is filed, § 821.39 Argument and submissions.
the Board will, on motion of a party,
determine whether the law judge At the hearing, the law judge shall
should have withdrawn and, if so, order give the parties adequate opportunity
appropriate relief. for the presentation of arguments in
support of, or in opposition to, mo-
Subpart F—Hearing tions, objections and proposed rulings.
Prior to the issuance of the initial de-
§ 821.37 Notice of hearing. cision, the parties shall be afforded a
(a) Time and location of hearing. The reasonable opportunity to submit for
law judge to whom the proceeding is consideration proposed findings and
assigned (or the chief judge) shall set a conclusions, and supporting reasons
reasonable date, time and place for the therefor.
hearing. Except as provided with re-
spect to emergency proceedings in § 821.40 Record.
§ 821.56(a), a written notice of hearing The transcript of testimony and ex-
shall be served on the parties at least hibits, together with all papers, re-
30 days in advance of the hearing. The quests and rulings filed in the pro-
law judge may set the hearing for a ceeding before the law judge, shall con-
date fewer than 30 days after the date
stitute the exclusive record of the pro-
of the issuance of the notice of hearing
ceeding. Copies of the transcript may
if all of the parties consent to an ear-
be obtained by any party upon pay-
lier hearing date. In setting the date of
the hearing, due regard shall be given ment of the reasonable cost thereof. A
to the parties’ discovery needs. In set- copy of the transcript may be exam-
ting the place of the hearing, due re- ined at the National Transportation
gard shall be given to the location of Safety Board, Office of Administrative
the subject incident, the convenience Law Judges, Public Docket Section.
of the parties and their witnesses, and
the conservation of Board funds. An-
other relevant factor in determining
the place of the hearing is the conven-
171
Subpart G—Initial Decision tial decision or appealable order has

passed, the law judge may, for good
§ 821.42 Initial decision by law judge. cause, reopen the matter on notice to
(a) Written or oral decision. The law the parties.
judge may render his or her initial de- (b) Request for reconsideration of law
cision orally at the close of the hear- judge’s initial decision or order. A law
ing, or in writing at a later date, ex- judge may not reconsider an initial de-
cept as provided with respect to emer- cision or appealable order after the
gency proceedings in § 821.56(c). time for appealing to the Board from
(b) Content. The initial decision shall the decision or order has expired, or
include findings and conclusions upon after an appeal has been filed with the
all material issues of fact, credibility Board. However, a timely request for
of witnesses, law and discretion pre- reconsideration by the law judge of the
sented on the record, together with a initial decision or appealable order,
statement of the reasons therefor. filed before an appeal to the Board is
(c) Furnishing parties with, and taken, will stay the deadline for filing
issuance date of, oral decision. If the ini- an appeal until 10 days after the date
tial decision is rendered orally, a copy on which the law judge serves his or
thereof, excerpted from the hearing her decision on the reconsideration re-
transcript, shall be furnished to the quest. For the purpose of this para-
parties by the Office of Administrative graph, if a request for reconsideration
Law Judges. Irrespective of the date on and a notice of appeal are filed on the
which the copy of the decision is trans- same day, the reconsideration request
mitted to the parties, the issuance date will be deemed to have been filed first.
of the decision shall be the date on
which it was orally rendered. § 821.48 Briefs and oral argument.
(a) Appeal brief. Except as provided in
§ 821.43 Effect of law judge’s initial de- § 821.57(b) with respect to emergency
cision or appealable order and ap- proceedings, each appeal must be per-
peal therefrom.
fected, within 50 days after the date on
If no appeal from the law judge’s ini- which the oral initial decision was ren-
tial decision or appealable order is dered, or 30 days after the date on
timely filed, the initial decision or which the written initial decision or
order shall become final with respect appealable order was served, by the fil-
to the parties, but shall not be binding ing, and simultaneous service on the
precedent for the Board. The filing of a other parties, of a brief in support of
timely notice of appeal with the Board the appeal. An appeal may be dismissed
shall stay the effectiveness of the law by the Board, either on its own initia-
judge’s initial decision or order, unless tive or on motion of another party,
the basis for the decision or order is where a party who has filed a notice of
that the Board lacks jurisdiction. appeal fails to perfect the appeal by fil-
ing a timely appeal brief.
Subpart H—Appeal From Initial (b) Form and content of appeal brief. (1)
Decision In addition to the general form require-
ments for documents set forth in
§ 821.47 Notice of appeal. § 821.7(c)(2), the appeal brief must be
(a) Time within which to file notice of typewritten, double-spaced, on 81⁄2-by-
appeal. A party may appeal from a law 11 inch paper. The appeal brief shall set
judge’s initial decision or appealable forth the name, address and telephone
order by filing with the Board, and si- number of the party, or the attorney or
multaneously serving on the other par- other representative filing the brief on
ties, a notice of appeal, within 10 days the party’s behalf. No appeal brief may
after the date on which the oral initial contain more than 35 pages of text
decision was rendered or the written without prior leave of the General
initial decision or appealable order was Counsel, upon a showing of good cause.
served (except as provided in § 821.57(a) (2) The appeal brief shall enumerate
with respect to emergency pro- the appealing party’s objections to the
ceedings). At any time before the time law judge’s initial decision or appeal-
limit for filing an appeal from an ini- able order, and shall state the reasons
172
for such objections, including any legal his or her initial decision or order
precedent relied upon in support there- should be changed, the Board may
of. make any necessary findings and may
(3) Any error contained in the initial issue an order in lieu of the law judge’s
decision which is not objected to in the initial decision or order, or may re-
appeal brief may be deemed waived. mand the proceeding for any such pur-
(c) Reply brief. Any other party to the pose as the Board may deem necessary.
proceeding may file a brief in reply to
the appeal brief within 30 days after § 821.50 Petition for rehearing, reargu-
the date on which the appeal brief was ment, reconsideration or modifica-
served on that party (except as pro- tion of an order of the Board.
vided in § 821.57(b) with respect to (a) General. Any party to a pro-
emergency proceedings). A copy of the ceeding may petition the Board for re-
reply brief shall simultaneously be hearing, reargument, reconsideration
served on the appealing party and any or modification of a Board order on ap-
other parties to the proceeding. The peal from a law judge’s initial decision
form requirements governing the ap- or order. An initial decision or appeal-
peal brief set forth in paragraph (b)(1) able order of a law judge that has be-
also apply to the reply brief. come final because no timely appeal
(d) Other filings. Subsequent to the was taken therefrom may not be the
filing of the appeal and reply briefs, the subject of a petition under this section.
parties may file citations to supple- (b) Timing and service. The petition
mental authorities. This procedure must be filed with the Board, and si-
may be used only for identifying new multaneously served on the other par-
and relevant legal authority, and not ties, within 30 days after the date of
to correct omissions in briefing or to service of the Board’s order on appeal
respond to a reply brief. No argument from the law judge’s initial decision or
may be included with such a filing. order.
Such filing shall include a reference to (c) Content. The petition shall state
the page of the brief to which the cited briefly and specifically the matters of
legal authority pertains. Any response record alleged to have been erro-
shall be filed within 10 days of the date neously decided, and the ground or
of service of the supplemental filing, grounds relied upon. If the petition is
and shall be similarly limited in scope. based, in whole or in part, upon new
With these exceptions, the parties may matter, it shall set forth such new
make no other submissions, except by matter and shall contain affidavits of
leave of the Board, upon on a showing prospective witnesses, authenticated
of good cause. documents, or both, or an explanation
(e) Oral argument. Oral argument be- of why such substantiation is unavail-
fore the Board will not be held in pro- able, and shall explain why such new
ceedings under this part unless the matter could not have been discovered
Board, on motion of a party or on its in the exercise of due diligence prior to
own initiative, determines that oral ar- the date on which the evidentiary
gument is needed. record closed.
(d) Repetitious petitions. Repetitious
§ 821.49 Issues on appeal. petitions will not be entertained by the
(a) On appeal, the Board will consider Board, and will be summarily dis-
only the following issues: missed.
(1) Are the findings of fact each sup- (e) Reply to petition. Any other party
ported by a preponderance of reliable, to the proceeding may file a reply to
probative and substantial evidence? the petition within 15 days after the
(2) Are conclusions made in accord- date on which the petition was served
ance with law, precedent and policy? on that party. A copy of such reply
(3) Are the questions on appeal sub- shall simultaneously be served on the
stantial? petitioner and any other parties to the
(4) Have any prejudicial errors oc- proceeding.
curred? (f) Stay of effective date of Board’s
(b) If the Board determines that the order. The filing of a petition under
law judge erred in any respect, or that this section shall operate to stay the
173
effective date of the Board’s order, un- order of the Administrator is being ap-
less the Board directs otherwise. pealed.
Subpart I—Special Rules Applica- § 821.54 Petition for review of Admin-

istrator’s determination of emer-
ble to Proceedings Involving gency.
Emergency and Other Imme-
(a) Time within which to file petition. A
diately Effective Orders
respondent may, within 2 days after
§ 821.52 General. the date of receipt of an emergency or
other immediately effective order of
(a) Applicability. This subpart shall
the Administrator, file with the Board
apply to any order issued by the Ad-
a petition for review of the Administra-
ministrator under 49 U.S.C. 44709 as an
tor’s determination that an emergency,
emergency order, as an order not des-
requiring the order to be effective im-
ignated as an emergency order but
mediately, exists. This 2-day time
later amended to be an emergency
order, and any order designated as im- limit is statutory and the Board has no
mediately effective or effective imme- authority to extend it. If the respond-
diately. ent has not previously filed an appeal
(b) Effective date of emergency. The from the Administrator’s emergency or
procedure set forth herein shall apply other immediately effective order, the
as of the date on which written advice petition shall also be considered a si-
of the emergency character of the Ad- multaneously filed appeal from the
ministrator’s order is received and order under § 821.53.
docketed by the Board. (b) Form, content and service of peti-
(c) Computation of time. Time shall be tion. The petition may be in letter
computed in accordance with the provi- form. A copy of the Administrator’s
sions of § 821.10. order, from which review of the emer-
(d) Waiver. Except as provided in gency determination is sought, must be
§ 821.54(f), or where the law judge or the attached to the petition. If a copy of
Board determines that it would unduly the order is not attached, the petition
burden another party or the Board, a will be dismissed. While the petition
certificate holder (respondent) affected need only request that the Board re-
by an emergency or other immediately view the Administrator’s determina-
effective order of the Administrator tion as to the existence of an emer-
may, at any time after filing an appeal gency requiring the order be effective
from such an order, waive the applica- immediately, it may also enumerate
bility of the accelerated time limits of the respondent’s reasons for believing
this subpart; however, such a waiver that the Administrator’s emergency
shall not serve to lengthen any period determination is not warranted in the
of time for doing an act prescribed by interest of aviation safety. The peti-
this subpart which expired before the tion must be filed with the Board by
date on which the waiver was made. overnight delivery service or facsimile
and simultaneously served on the Ad-
§ 821.53 Appeal. ministrator by the same means.
(a) Time within which to file appeal. An (c) Reply to petition. If the petition
appeal from an emergency or other im- enumerates the respondent’s reasons
mediately effective order of the Admin- for believing that the Administrator’s
istrator must be filed within 10 days emergency determination is unwar-
after the date on which the Adminis- ranted, the Administrator may, within
trator’s order was served on the re- 2 days after the date of service of the
spondent. The respondent shall simul- petition, file a reply, which shall be
taneously serve a copy of the appeal on strictly limited to matters of rebuttal.
the Administrator. Such reply must be filed with the
(b) Form and content of appeal. The Board by overnight delivery service or
appeal may be in letter form. It shall facsimile and simultaneously served on
identify the certificate or certificates the respondent by the same means. No
affected and indicate that an emer- submissions other than the respond-
gency or other immediately effective ent’s petition and the Administrator’s
174
reply in rebuttal will be accepted, ex- § 821.55 Complaint, answer to com-

cept in accordance with paragraph (d) plaint, motions and discovery.
of this section. (a) Complaint. In proceedings gov-
(d) Hearing. No hearing shall be held erned by this subpart, the Administra-
on a petition for review of an emer- tor’s complaint shall be filed by over-
gency determination. However, the law night delivery service or facsimile, and
judge may, on his or her own initiative, simultaneously served on the respond-
and strictly in keeping with the prohi- ent by the same means, within 3 days
bition on ex parte communications set after the date on which the Adminis-
forth in § 821.61, solicit from the parties trator received the respondent’s ap-
additional information to supplement peal, or within 3 days after the date of
that previously provided by the par- service of an order disposing of a peti-
ties. tion for review of an emergency deter-
(e) Disposition. Within 5 days after mination, whichever is later.
the Board’s receipt of the petition, the (b) Answer to complaint. The respond-
chief law judge (or, if the case has been ent shall file with the Board an answer
assigned to a law judge, the law judge to the complaint within 5 days after
to whom the case is assigned) shall dis- the date on which the complaint was
pose of the petition by written order, served by the Administrator, and shall
and, in so doing, shall consider wheth- simultaneously serve a copy of the an-
er, based on the acts and omissions al- swer on the Administrator. Failure by
leged in the Administrator’s order, and the respondent to deny the truth of any
allegation or allegations in the com-
assuming the truth of such factual al-
plaint may be deemed an admission of
legations, the Administrator’s emer-
the truth of the allegation or allega-
gency determination was appropriate
tions not answered. The answer shall
under the circumstances, in that it
also identify any affirmative defenses
supports a finding that aviation safety
that the respondent intends to raise at
would likely be compromised by a stay
the hearing.
of the effectiveness of the order during (c) Motion to dismiss and motion for
the pendency of the respondent’s ap- more definite statement. In proceedings
peal. governed by this subpart, no motion to
(f) Effect of law judge’s ruling. If the dismiss the complaint or for a more
law judge grants the petition, the effec- definite statement of the complaint’s
tiveness of the Administrator’s order allegations shall be made, but the sub-
shall be stayed until final disposition stance thereof may be stated in the re-
of the respondent’s appeal by a law spondent’s answer. The law judge may
judge or by the Board. In such cases, permit or require a more definite state-
the remaining provisions of this sub- ment or other amendment to any
part (§§ 821.55–821.57) shall continue to pleading at the hearing, upon good
apply, unless the respondent, with the cause shown and upon just and reason-
Administrator’s consent, waives their able terms.
applicability. If the petition is denied, (d) Discovery. Discovery is authorized
the Administrator’s order shall remain in proceedings governed by this sub-
in effect, and the remaining provisions part. Given the short time available for
of this subpart shall continue to apply, discovery, the parties shall cooperate
unless their applicability is waived by to ensure timely completion of the dis-
the respondent. The law judge’s ruling covery process prior to the hearing.
on the petition shall be final, and is Discovery requests shall be served by
not appealable to the Board. However, the parties as soon as possible. A mo-
in the event of an appeal to the Board tion to compel discovery should be ex-
from a law judge’s decision on the mer- peditiously filed where any dispute
its of the emergency or other imme- arises, and the law judge shall prompt-
diately effective order, the Board may, ly rule on such a motion. Time limits
at its discretion, note, in its order dis- for compliance with discovery requests
posing of the appeal, its views on the shall be set by the parties so as to ac-
law judge’s ruling on the petition, and commodate, and not conflict with, the
such views shall serve as binding prece- accelerated adjudication schedule set
dent in all future cases. forth in this subpart. The provisions of
175
§ 821.19 shall apply, modified as nec- the unavailability of the hearing tran-
essary to meet the exigencies of this script.
subpart’s accelerated timeframes. (b) Briefs and oral argument. Each ap-
peal in proceedings governed by this
§ 821.56 Hearing and initial decision or subpart must be perfected, within 5
appealable order of law judge. days after the date on which the notice
(a) Notice of hearing. Within 3 days of appeal was filed, by the filing, and
after the date on which the Board re- simultaneous service on the other par-
ceives the Administrator’s complaint, ties, of a brief in support of the appeal.
or immediately upon the issuance of a Any other party to the proceeding may
law judge’s order disposing of a peti- file a brief in reply to the appeal brief
tion for review of the Administrator’s within 7 days after the date on which
emergency determination, if later, the the appeal brief was served on that
parties shall be served with a written party. A copy of the reply brief shall si-
multaneously be served on the appeal-
notice of hearing, setting forth the
ing party and any other parties to the
date, time and place of the hearing.
proceeding. Unless otherwise author-
The hearing shall be set for a date no
ized by the Board, all briefs in connec-
later than 30 days after the date on
tion with appeals governed by this sub-
which the respondent’s appeal was re- part must be filed and served by over-
ceived and docketed. To the extent night delivery service, or by facsimile
that they are not inconsistent with confirmed by personal or first-class
this section, the provisions of § 821.37(a) mail delivery of the original. Aside
shall also apply. from the time limits and methods of
(b) Conduct of hearing. The provisions filing and service specifically man-
of §§ 821.38, 821.39 and 821.40, concerning dated by this paragraph, the provisions
the taking of evidence, argument and of § 821.48 shall apply.
submissions by the parties, and the (c) Issues on appeal. The provisions of
composition of the hearing record, § 821.49(a) shall apply in proceedings
shall apply to proceedings governed by governed by this subpart.
this subpart. (d) Petition for rehearing, reargument,
(c) Initial decision and effect of initial reconsideration or modification of order.
decision or appealable order. The law The only petitions for rehearing, re-
judge’s initial decision shall be made argument, reconsideration or modifica-
orally on the record at the termination tion of an order which the Board will
of the hearing. The provisions of entertain in proceedings governed by
§ 821.42, concerning the content of the this subpart are those based on the
initial decision, the furnishing of cop- ground that new matter has been dis-
ies of the initial decision to the parties covered. Such petitions must:
and the issuance date of the initial de- (1) Set forth the new matter;
cision, and the provisions of § 821.43, (2) Contain affidavits of prospective
concerning the effect of the law judge’s witnesses, authenticated documents, or
initial decision or appealable order and both, or an explanation of why such
any appeal therefrom, shall apply to substantiation is unavailable; and
proceedings governed by this subpart. (3) Contain a statement explaining
why such new matter could not have
§ 821.57 Procedure on appeal. been discovered in the exercise of due
(a) Time within which to file notice of diligence prior to the date on which the
appeal. A party may appeal from a law evidentiary record closed.
judge’s initial decision or appealable
order by filing with the Board, and si- Subpart J—Ex Parte
multaneously serving on the other par- Communications
ties, a notice of appeal, within 2 days
after the date on which the initial deci- AUTHORITY: Sec. 4, Pub. L. 94–409, 5 U.S.C.
sion was orally rendered or the appeal- 556(d) and 557; 49 U.S.C. 1101–1155, 44701–44723,
able order was served. The time limita- 46301.
tions for the filing of documents re-
specting appeals governed by this sub- § 821.60 Definitions.
part will not be extended by reason of As used in this subpart:
176
Board decisional employee means a (c) All written responses, and memo-
Board Member, law judge or other em- randa stating the substance of all oral
ployee who is, or who may reasonably responses, to the communications de-
be expected to be, involved in the scribed in paragraphs (a) and (b) of this
decisional process of the proceeding; section.
Ex parte communication means an oral
or written communication not on the § 821.63 Requirement to show cause
public record with respect to which and imposition of sanction.
reasonable prior notice to all parties is (a) Upon receipt of a communication
not given, but does not include re- made or knowingly caused to be made
quests for status reports on any matter by a party in violation of § 821.61, the
or proceeding covered by this part. presiding law judge (or the chief law
judge, if the proceeding has not been
§ 821.61 Prohibited ex parte commu- assigned to a law judge) or the Board
nications. may, to the extent consistent with the
(a) The prohibitions of this section interests of justice and the policy of
shall apply from the time a petition for the underlying statutes it administers,
review or an appeal is filed unless the require the party to show cause why its
person responsible for the communica- claim or interest in the proceeding
tion has knowledge that a petition for should not be dismissed, denied, dis-
review or an appeal will be filed, in regarded or otherwise adversely af-
which case the prohibitions shall apply fected on account of such violation.
at the time of the acquisition of such (b) The Board may, to the extent con-
knowledge. Such prohibitions shall sistent with the interest of justice and
continue until the time of the Board’s the policy of the underlying statutes it
final disposition of the petition, appeal administers, consider a violation of
and any ancillary matters, such as the § 821.61 sufficient grounds for a decision
adjudication of a claim for fees and ex- adverse to a party who has knowingly
penses under the Equal Access to Jus- committed or knowingly caused such a
tice Act. violation to occur. Alternatively, the
(b) Except to the extent required for Board may impose a sanction on the
the disposition of ex parte matters as party’s attorney or representative, in-
authorized by law: cluding suspending or barring the at-
(1) No interested person outside the torney or representative from prac-
Board shall make or knowingly cause ticing before it, where such action
to be made to any Board decisional em- would be appropriate and penalizing
ployee an ex parte communication rel- the party represented would not be in
evant to the merits of the proceeding; the interest of justice.
(2) No Board decisional employee
shall make or knowingly cause to be Subpart K—Judicial Review of
made to any interested person outside Board Orders
the Board an ex parte communication
relevant to the merits of the pro- § 821.64 Judicial review.
ceeding. Ex parte communications (a) General. Judicial review of a final
solely relating to matters of Board pro- order of the Board may be sought as
cedure or practice are not prohibited provided in 49 U.S.C. 1153 and 46110 by
by this section. the filing of a petition for review with
the appropriate United States Court of
§ 821.62 Procedures for handling ex
parte communications. Appeals within 60 days of the date of
entry (i.e., service date) of the Board’s
A Board decisional employee who re- order. Under the applicable statutes,
ceives, makes or knowingly causes to any party may appeal the Board’s deci-
be made a communication prohibited sion. The Board is not a party in inter-
by § 821.61 shall place in the public est in such appellate proceedings and,
record of the proceeding: accordingly, does not typically partici-
(a) All such written communications; pate in the judicial review of its deci-
(b) Memoranda stating the substance sions. In matters appealed by the Ad-
of all such oral communications; and ministrator, the other parties should
177
anticipate the need to make their own the Board within 10 days after service
defense. of the Commandant’s decision upon the
(b) Stay pending judicial review. No re- party or his designated attorney. Upon
quest for a stay pending judicial review good cause shown, the time for filing
will be entertained if it is received by may be extended.
the Board after the effective date of (b) Notice of appeal shall be ad-
the Board’s order (see § 821.50(b)). If a dressed to the Docket Clerk, National
stay action is to be timely, any request Transportation Safety Board, Wash-
must be filed sufficiently in advance of ington, DC 20594. At the same time, a
the effective date of the Board’s order copy shall be served on the Com-
to allow for a reply and Board review. mandant (GL), U.S. Coast Guard,
Washington, DC 20590.
PART 825—RULES OF PROCEDURE (c) The notice of appeal shall state
FOR MERCHANT MARINE AP- the name of the party, the number of
the Commandant’s decision, and, in
PEALS FROM DECISIONS OF THE brief, the grounds for the appeal.
COMMANDANT, U.S. COAST
GUARD § 825.10 Referral of record.
Upon receipt of a notice of appeal,
Sec. the Commandant shall immediately
825.5 Notice of appeal. transmit to the Board the complete
825.10 Referral of record. record of the hearing upon which his
825.15 Issues on appeal. decision was based. This includes the
825.20 Briefs in support of appeal. charges, the transcript of testimony,
825.25 Oral argument. and hearing proceedings (including ex-
825.30 Action by the Board. hibits), briefs filed by the party, the de-
825.35 Action after remand. cision of the administrative law judge,
825.40 Ex parte communications.
and the Commandant’s decision on ap-
AUTHORITY: Sec. 304(a)(9)(B), Independent peal. It does not include intra-agency
Safety Board Act of 1974, Pub. L. 93–633, 88 staff memoranda provided as advice to
Stat. 2169 (49 U.S.C. 1903(a)(9)(B)). the Commandant to aid in his decision.
SOURCE: 40 FR 30248, July 17, 1975, unless
otherwise noted. § 825.15 Issues on appeal.
The only issues that may be consid-
ered on appeal are:
The provisions of this part govern all (a) A finding of a material fact is er-
proceedings before the National Trans- roneous;
portation Safety Board (Board) on ap- (b) A necessary legal conclusion is
peals taken from decisions, on or after without governing precedent or is a de-
April 1, 1975, of the Commandant, U.S. parture from or contrary to law or
Coast Guard, sustaining orders of an precedent;
administrative law judge, revoking, (c) A substantial and important ques-
suspending, or denying a license, cer- tion of law, policy, or discretion is in-
tificate, document, or register in pro- volved; or
ceedings under: (d) A prejudicial procedural error has
(a) R.S. 4450, as amended (46 U.S.C. occurred.
239);
(b) Act of July 15, 1954 (46 U.S.C. 239a– § 825.20 Briefs in support of appeal.
b); or (a) Within 20 days after the filing of
(c) Section 4, Great Lakes Pilotage a notice of appeal, the appellant must
Act (46 U.S.C. 216(b)). file, in the same manner as prescribed
for the notice in § 825.5, a brief in sup-
§ 825.5 Notice of appeal. port of the appeal.
(a) A party may appeal from the (b) This document shall set forth:
Commandant’s decision sustaining an (1) The name and address of the ap-
order of revocation, suspension, or de- pellant;
nial of a license, certificate, document, (2) The number and a description of
or register in proceedings described in the license, certificate, document, or
§ 825.1, by filing a notice of appeal with register involved;
178
(3) A summary of the charges af- to the administrative law judge of the
firmed by the Commandant as proved; Coast Guard who heard the case, or to
(4) Fact findings by the Commandant another administrative law judge of
disputed by the appellant; the Coast Guard, with appropriate di-
(5) Specific statements of errors of rections.
laws asserted;
(6) Specific statements of any abuse § 825.35 Action after remand.
of discretion asserted; and When a case has been remanded
(7) The relief requested. under § 825.30, a party shall retain all
(c) Objection based upon evidence of rights of review under 46 CFR part 5
record need not be considered unless and this part, as applicable.
the appeal contains specific record ci-
tation to the pertinent evidence. § 825.40 Ex parte communications.
(d) When a brief has been filed by ap-
(a) As used in this section:
pellant under this section, the Coast
Board decisional employee means a
Guard may, within 15 days of service of
Board Member or employee who is or
the brief on the Commandant, submit
who may reasonably be expected to be
to the Board a reply brief.
(e) If a party who has filed a notice of involved in the decisional process of
appeal does not perfect the appeal by the proceeding;
the timely filing of an appeal brief, the Ex parte communication means an oral
Board may dismiss the appeal on its or written communication not on the
own initiative or on motion of the public record with respect to which
Coast Guard. reasonable prior notice to all parties is
not given, but it shall not include re-
§ 825.25 Oral argument. quests for status reports on any matter
or proceeding covered by this part.
(a) If any party desires to argue a
case orally before the Board, he should (b) The prohibition of paragraph (c)
request leave to make such argument of this section shall apply from the
in his brief filed pursuant to § 825.20. time a proceeding is noticed for hear-
(b) Oral argument before the Board ing unless the person responsible for
will normally not be granted unless the the communication has knowledge that
Board finds good cause for such argu- it will be noticed, in which case the
ment. If granted, the parties will be ad- prohibition shall apply at the time of
vised of the date. the acquisition of such knowledge.
(c) Except to the extent required for
§ 825.30 Action by the Board. the disposition of ex parte matters as
authorized by law:
(a) On review by the Board, if no re-
versible error is found in the Com- (1) No interested person outside the
mandant’s decision on appeal, that de- Board shall make or knowingly cause
cision will be affirmed. to be made to any Board employee an
(b) On review by the Board, if revers- ex parte communication relevant to
ible error is found in the Com- the merits of the proceeding;
mandant’s decision on appeal, the (2) No Board employee shall make or
Board may: knowingly cause to be made to any in-
(1) Set aside the entire decision and terested person outside the Board an ex
dismiss the charges if it finds the error parte communication relevant to the
incurable; or merits of the proceeding.
(2) Set aside the order, or conclu- Ex parte communications regarding
sions, or findings of the Commandant solely matters of Board procedure or
and remand the case to him for further practice are not prohibited by this
consideration if it finds the error cur- paragraph.
able. (d) A Board employee who receives or
(c) When a matter has been remanded who makes or knowingly causes to be
to the Commandant under paragraph made a communication prohibited by
(b) of this section, the Commandant paragraph (c) of this section, shall
may act in accordance with the terms place on the public record of the pro-
of the order of remand, or he may, as ceeding:
appropriate, further remand the matter (1) All such written communications;
179
(2) Memoranda stating the substance Subpart C—Procedures for Considering

of all such oral communication; and Applications
(3) All written responses, and memo-
826.31 Filing and service of documents and
randa stating the substance of all oral
general procedures.
responses, to materials described in 826.32 Answer to application.
paragraphs (d) (1) and (2) of this sec- 826.33 Reply.
tion. 826.34 Comments by other parties.
(e) Upon receipt of a communication 826.35 Settlement.
knowingly made or caused to be made 826.36 Further proceedings.
in violation of paragraph (c) of this sec- 826.37 Decision.
tion, the Board may, to the extent con- 826.38 Board review.
sistent with the interests of justice and 826.39 Judicial review.
the policy of the underlying statutes, 826.40 Payment of award.
require the party to show cause why
AUTHORITY: Section 203(a)(1) Pub. L. 99–80,
his or her interest in the proceeding
99 Stat. 186 (5 U.S.C. 504).
should not be dismissed, denied, dis-
regarded, or otherwise adversely af- SOURCE: 46 FR 48209, Oct. 1, 1981, unless
fected on account of such violation. otherwise noted.
(f) The Board may, to the extent con-
sistent with the interests of justice and Subpart A—General Provisions
the policy of the underlying statutes
administered by the Board, consider a § 826.1 Purpose of these rules.
violation of this section sufficient The Equal Access to Justice Act, 5
grounds for a decision adverse to a U.S.C. 504 (the Act), provides for the
party who has knowingly committed award of attorney fees and other ex-
such violation or knowingly caused penses to eligible individuals and enti-
such violation to occur. ties who are parties to certain adminis-
(Authority: Sec. 4, Government in the Sun- trative proceedings (adversary adju-
shine Act, Pub. L. 94–409, amending 5 U.S.C. dications) before the National Trans-
556 (d) and 5 U.S.C. 557; Independent Safety portation Safety Board (Board). An eli-
Board Act of 1974, Pub. L. 93–633, 88 Stat. 2166 gible party may receive an award when
(49 U.S.C. 1901 et seq.)) it prevails over the Federal Aviation
[42 FR 21614, Apr. 28, 1977] Administration (FAA), unless the Gov-
ernment agency’s position in the pro-
PART 826—RULES IMPLEMENTING ceeding was substantially justified or
special circumstances make an award
THE EQUAL ACCESS TO JUSTICE unjust. The rules in this part describe
ACT OF 1980 the parties eligible for awards and the
proceedings that are covered. They also
Subpart A—General Provisions explain how to apply for awards, and
Sec. the procedures and standards that this
826.1 Purpose of these rules. Board will use to make them. As used
826.2 When the Act applies. hereinafter, the term ‘‘agency’’ applies
826.3 Proceedings covered. to the FAA.
826.4 Eligibility of applicants.
826.5 Standards for awards. § 826.2 When the Act applies.
826.6 Allowable fees and expenses. The Act applies to any adversary ad-
826.7 Rulemaking on maximum rates for at- judication identified in § 826.3 as cov-
torney fees. ered under the Act.
826.8 Awards against the Federal Aviation
Administration. [59 FR 30531, June 14, 1994]
Subpart B—Information Required From § 826.3 Proceedings covered.

Applicants
(a) The Act applies to certain adver-
826.21 Contents of application. sary adjudications conducted by the
826.22 Net worth exhibit. Board. These are adjudications under 5
826.23 Documentation of fees and expenses. U.S.C. 554 in which the position of the
826.24 When an application may be filed. FAA is presented by an attorney or
180
other representative who enters an ap- (3) A charitable or other tax-exempt

pearance and participates in the pro- organization described in section
ceedings. Proceedings to grant or 501(c)(3) of the Internal Revenue Code
renew certificates or documents, here- (26 U.S.C. 501(c)(3)) with not more than
after referred to as ‘‘licenses,’’ are ex- 500 employees;
cluded, but proceedings to modify, sus- (4) A cooperative association as de-
pend, or revoke licenses or to impose a fined in section 15(a) of the Agricul-
civil penalty on a flight engineer, me- tural Marketing Act (12 U.S.C. 1141j(a))
chanic, pilot, or repairman (or person with not more than 500 employees; and
acting in that capacity) are covered if (5) Any other partnership, corpora-
they are otherwise ‘‘adversary adju- tion, association, or public or private
dications.’’ For the Board, the type of organization with a net worth of not
proceeding covered includes (but may more than $7 million and not more
not be limited to) aviation enforce- than 500 employees.
ment cases appealed to the Board (c) For the purpose of eligibility, the
under sections 501, 609, 611 and 901 of net worth and number of employees of
the Federal Aviation Act (49 U.S.C. an applicant shall be determined as of
44101 et seq., 44720–44711, 44715, 46301). the date the proceeding was initiated.
(b) The Board may also designate a (d) An applicant who owns an unin-
proceeding not listed in paragraph (a) corporated business will be considered
as an adversary adjudication for pur- an ‘‘individual’’ rather than a ‘‘sole
poses of the Act by so stating in an owner of an unincorporated business’’
order initiating the proceeding or des- if the issues on which the applicant
ignating the matter for hearing. The prevails are related primarily to per-
Board’s failure to designate a pro- sonal interests rather than to business
ceeding as an adversary adjudication interests.
shall not preclude the filing of an ap- (e) The employees of an applicant in-
plication by a party who believes the clude all persons who regularly per-
proceeding is covered by the Act; form services for remuneration for the
whether the procedure is covered will applicant, under the applicant’s direc-
then be an issue for resolution in pro- tion and control. Part-time employees
ceedings on the application. shall be included on a proportional
(c) If a proceeding includes both mat- basis.
ters covered by the Act and matters (f) The net worth and number of em-
specifically excluded from coverage, ployees of the applicant and all of its
any award made will include only fees affiliates shall be aggregated to deter-
and expenses related to covered issues. mine eligibility. Any individual, cor-
[46 FR 48209, Oct. 1, 1981, as amended at 59 FR poration, or other entity that directly
59054, Nov. 15, 1994] or indirectly controls or owns a major-
ity of the voting shares or other inter-
§ 826.4 Eligibility of applicants. est of the applicant, or any corporation
(a) To be eligible for an award of at- or other entity of which the applicant
torney fees and other expenses under directly or indirectly owns or controls
the Act, the applicant must be a party a majority of the voting shares or
to the adversary adjudication for which other interest, will be considered an af-
it seeks an award. The term ‘‘party’’ is filiate for purposes of this part, unless
defined in 5 U.S.C. 551(3). The applicant the administrative law judge deter-
must show that it meets all conditions mines that such treatment would be
of eligibility set out in this subpart unjust and contrary to the purposes of
and in subpart B. the Act in light of the actual relation-
(b) The types of eligible applicants ship between the affiliated entities. In
are as follows: addition, the administrative law judge
(1) An individual with a net worth of may determine that financial relation-
not more than $2 million; ships of the applicant other than those
(2) The sole owner of an unincor- described in this paragraph constitute
porated business who has a net worth special circumstances that would make
of not more than $7 million, including an award unjust.
both personal and business interests, (g) An applicant that participates in
and not more than 500 employees; a proceeding primarily on behalf of one
181
or more other persons or entities that in 5 U.S.C. 504(b)(1)(A)(ii). Application

would be ineligible is not itself eligible of these increased rate caps requires af-
for an award. firmative findings under § 821.6(c) of
[46 FR 48209, Oct. 1, 1981, as amended at 54 FR this chapter. For ease of application,
10332, Mar. 13, 1989] available U.S. City figures are repro-
duced as follows:
§ 826.5 Standards for awards. 1981 ........................................ 90.9
(a) A prevailing applicant may re- 1982 ........................................ 96.5
ceive an award for fees and expenses in- 1983 ........................................ 99.6
curred in connection with a proceeding, 1984 ........................................ 103.9
or in a significant and discrete sub-
1985 ........................................ 107.6
stantive portion of the proceeding, un-
less the position of the agency over 1986 ........................................ 109.6
which the applicant has prevailed was 1987 ........................................ 113.6
substantially justified. The burden of 1988 ........................................ 118.3
proof that an award should not be 1989 ........................................ 124.0
made to an eligible prevailing appli- 1990 ........................................ 130.7
cant is on the agency counsel, who may 1991 ........................................ 136.2
avoid an award by showing that the 1992 ........................................ 140.3
agency’s position was reasonable in law 1993 ........................................ 144.5
and fact.
(b) An award will be reduced or de- (2) No award to compensate an expert
nied if the applicant has unduly or un- witness may exceed the highest rate at
reasonably protracted the proceeding which the agency pays expert wit-
or if special circumstances make the nesses. However, an award may also in-
award sought unjust. clude the reasonable expenses of the at-
torney, agent, or witness as a separate
§ 826.6 Allowable fees and expenses. item, if the attorney, agent, or witness
(a) Awards will be based on rates cus- ordinarily charges clients separately
tomarily charged by persons engaged for such expenses.
in the business of acting as attorneys, (c) In determining the reasonableness
agents, and expert witnesses, even if of the fee sought for an attorney,
the services were made available with- agent, or expert witness, the adminis-
out charge or at a reduced rate to the trative law judge shall consider the fol-
applicant. lowing:
(b)(1) No award for the fee of an at- (1) If the attorney, agent, or witness
torney or agent under these rules may is in private practice, his or her cus-
exceed $75 indexed as follows: tomary fee for similar services, or if an
employee of the applicant, the fully al-
X CPI _ New
= located cost of the services;
$75 / hr CPI _1981 (2) The prevailing rate for similar
services in the community in which the
The CPI to be used is the annual aver- attorney, agent, or witness ordinarily
age CPI, All Urban Consumers, U.S. performs services;
City Average, All Items, except where
(3) The time actually spent in the
a local, All Item index is available.
representation of the applicant;
Where a local index is available, but re-
sults in a manifest inequity vis-a-vis (4) The time reasonably spent in light
the U.S. City Average, the U.S. City of the difficulty or complexity of the
Average may be used. The numerator issues in the proceeding; and
of that equation is the yearly average (5) Such other factors as may bear on
for the year(s) the services were pro- the value of the services provided.
vided, with each year calculated sepa- (d) The reasonable cost of any study,
rately. If an annual average CPI for a analysis, engineering report, test,
particular year is not yet available, the project, or similar matter prepared on
prior year’s annual average CPI shall behalf of a party may be awarded, to
be used. This formula increases the $75 the extent that the charge for the serv-
statutory cap by indexing it to reflect ice does not exceed the prevailing rate
cost of living increases, as authorized for similar services, and the study or
182
ER14JN94.001</MATH>
other matter was necessary for prepa- position of the agency in the pro-
ration of the applicant’s case. ceeding that the applicant alleges was
[46 FR 48209, Oct. 1, 1981, as amended at 58 FR
not substantially justified. Unless the
21544, Apr. 22, 1993; 59 FR 30531, June 14, 1994] applicant is an individual, the applica-
tion shall also state the number of em-
§ 826.7 Rulemaking on maximum rates ployees of the applicant and describe
for attorney fees. briefly the type and purpose of its or-
(a) In addition to increases based on ganization or business.
cost of living (see § 826.6), attorney fees (b) The application shall also include
in some or all of the proceedings cov- a statement that the applicant’s net
ered by this part may also be increased worth does not exceed $2 million (if an
beyond the statutory cap of $75 if war- individual) or $7 million (for all other
ranted by special factors (such as lim- applicants, including their affiliates).
ited availability of attorneys qualified However, an applicant may omit this
to handle certain types of proceedings). statement if:
The Board will conduct any rule- (1) It attaches a copy of a ruling by
making proceedings for this purpose the Internal Revenue Service that it
under the informal rulemaking proce- qualifies as an organization described
dures of the Administrative Procedure in section 501(c)(3) of the Internal Rev-
Act. enue Code (26 U.S.C. 501(c)(3)), or in the
(b) Any person may file with the case of a tax-exempt organization not
Board a petition for rulemaking to in- required to obtain a ruling from the In-
crease the maximum rate for attorney ternal Revenue Service on its exempt
fees by demonstrating that a special status, a statement that describes the
factor(s) justifies a higher fee. The pe- basis for the applicant’s belief that it
tition shall identify the rate the peti- qualifies under such section; or
tioner believes the Board should estab- (2) It states that it is a cooperative
lish and the proceeding(s) or types of association as defined in section 15(a)
proceedings in which the rate should be of the Agricultural Marketing Act (12
used. It should also explain fully the U.S.C. 1141j(a)).
reasons why the higher rate is war- (c) The application shall state the
ranted. The Board will respond to the amount of fees and expenses for which
petition within 60 days after it is filed, an award is sought.
by initiating a rulemaking proceeding, (d) The application may also include
denying the petition, or taking other any other matters that the applicant
appropriate action. wishes this agency to consider in deter-
[58 FR 21545, Apr. 22, 1993] mining whether and in what amount an
award should be made.
§ 826.8 Awards against the Federal (e) The application shall be signed by
Aviation Administration. the applicant or an authorized officer
When an applicant is entitled to an or attorney for the applicant. It shall
award because it prevails over an agen- also contain or be accompanied by a
cy of the United States that partici- written verification under oath or
pates in a proceeding before the Board under penalty of perjury that the infor-
and takes a position that is not sub- mation provided in the application is
stantially justified, the award shall be true and correct.
made against that agency. [46 FR 48209, Oct. 1, 1981, as amended at 59 FR
30532, June 14, 1994]
Subpart B—Information Required
From Applicants § 826.22 Net worth exhibit.
(a) Each applicant except a qualified
§ 826.21 Contents of application. tax-exempt organization or cooperative
(a) An application for an award of association must provide with its ap-
fees and expenses under the Act shall plication a detailed exhibit showing
identify the applicant and the pro- the net worth of the applicant and any
ceeding for which an award is sought. affiliates (as defined in § 826.4(f) of this
The application shall show that the ap- part) when the proceeding was initi-
plicant has prevailed and identify the ated. The exhibit may be in any form
183
convenient to the applicant that pro- plication, showing the hours spend in
vides full disclosure of the applicant’s connection with the proceeding by each
and its affiliates’ assets and liabilities individual, a description of the specific
and is sufficient to determine whether services performed, the rate at which
the applicant qualifies under the stand- each fee has been computed, any ex-
ards in this part. The administrative penses for which reimbursement is
law judge may require an applicant to sought, the total amount claimed, and
file additional information to deter- the total amount paid or payable by
mine the eligibility for an award. the applicant or by any other person or
(b) Ordinarily, the net worth exhibit entity for the services provided. The
will be included in the public record of administrative law judge may require
the proceeding. However, an applicant
the applicant to provide vouchers, re-
that objects to public disclosure of in-
ceipts, or other substantiation for any
formation in any portion of the exhibit
and believes there are legal grounds for expenses claimed.
withholding it from disclosure may § 826.24 When an application may be
submit that portion of the exhibit di- filed.
rectly to the administrative law judge
in a sealed envelope labeled ‘‘Confiden- (a) An application may be filed when-
tial Financial Information,’’ accom- ever the applicant has prevailed in the
panied by a motion to withhold the in- proceeding, but in no case no later
formation from public disclosure. The than the 30 days after the Board’s final
motion shall describe the information disposition of the proceeding. This 30-
sought to be withheld and explain, in day deadline is statutory and the
detail, why it falls within one or more Board has no authority to extend it.
of the specific exemptions from manda- (b) If review or reconsideration is
tory disclosure under the Freedom of sought or taken of a decision to which
Information Act, 5 U.S.C. 552(b) (1) an applicant believes it has prevailed,
through (9), why public disclosure of proceedings for the award of fees shall
the information would adversely affect be stayed pending final disposition of
the applicant, and why disclosure is the underlying controversy.
not required in the public interest. The (c) For purposes of this rule, final
material in question shall be served on disposition means the later of (1) the
counsel representing the agency date on which an unappealed initial de-
against which the applicant seeks an
cision by an administrative law judge
award, but need not be served on any
becomes administratively final; (2)
other party to the proceeding. If the
issuance of an order disposing of any
administrative law judge finds that the
petitions for reconsideration of the
information should not be withheld
from disclosure, it shall be placed in Board’s final order in the proceeding;
the public record of the proceeding. (3) if no petition for reconsideration is
Otherwise, any request to inspect or filed, the last date on which such a pe-
copy the exhibit shall be disposed of in tition could have been filed; or (4)
accordance with the Board’s estab- issuance of a final order or any other
lished procedures under the Freedom of final resolution of a proceeding, such
Information Act as inplemented by as a settlement or voluntary dismissal,
Part 801 of the Board’s rules. which is not subject to a petition for
reconsideration.
§ 826.23 Documentation of fees and ex-
penses. [46 FR 48209, Oct. 1, 1981, as amended at 59 FR
30532, June 14, 1994]
The application shall be accompanied
by full documentation of the fees and
expenses, including the cost of any Subpart C—Procedures for
study, analysis, engineering report, Considering Applications
test, project or similar matter, for
which an award is sought. A separate § 826.31 Filing and service of docu-
ments and general procedures.
itemized statement shall be submitted
for each professional firm or individual The rules contained in 49 CFR part
whose services are covered by the ap- 821 apply to proceedings under the Act,
184
unless they are superseded by or are in- judge determines that the public inter-
consistent with a provision of this est requires such participation in order
part. to permit full exploration of matters
raised in the comments.
[59 FR 30532, June 14, 1994]
§ 826.35 Settlement.
§ 826.32 Answer to application.
The applicant and agency counsel
(a) Within 30 days after service of an may agree on a proposed settlement of
application, counsel representing the the award before final action on the ap-
agency against which an award is plication, either in connection with a
sought may file an answer to the appli- settlement of the underlying pro-
cation. Unless agency counsel requests ceeding, or after the underlying pro-
an extension of time for filing or files ceeding has been concluded. If a pre-
a statement of intent to negotiate vailing party and agency counsel agree
under paragraph (b) of this section, on a proposed settlement of an award
failure to file an answer within the 30- before an application has been filed,
day period may be treated as a consent the application shall be filed with the
to the award requested. proposed settlement.
(b) If agency counsel and the appli-
cant believe that the issues in the fee § 826.36 Further proceedings.
application can be settled, they may (a) Ordinarily the determination of
jointly file a statement of their intent an award will be made on the basis of
to negotiate a settlement. The filing of the written record; however, on request
this statement shall extend the time of either the applicant or agency coun-
for filing an answer for an additional 30 sel, or on his or her own initiative, the
days, and further extensions may be administrative law judge assigned to
granted by the administrative law the matter may order further pro-
judge upon request by agency counsel ceedings, such as an informal con-
and the applicant. ference, oral argument, additional
(c) The answer shall explain in detail written submissions, or an evidentiary
any objections to the award requested hearing. Such further proceedings shall
and identify the facts relied on in sup- be held only when necessary for full
port of agency counsel’s position. If the and fair resolution of the issues arising
answer is based on any alleged facts from the application and shall be con-
not already in the record of the pro- ducted as promptly as possible.
ceeding, agency counsel shall include (b) A request that the administrative
with the answer either supporting affi- law judge order further proceedings
davits or a request for further pro- under this section shall specifically
ceedings under § 826.36. identify the information sought or the
disputed issues and shall explain why
§ 826.33 Reply. the additional proceedings are nec-
Within 15 days after service of an an- essary to resolve the issues.
swer, the applicant may file a reply. If
the reply is based on any alleged facts § 826.37 Decision.
not already in the record of the pro- The administrative law judge shall
ceeding, the applicant shall include issue an initial decision on the applica-
with the reply either supporting affida- tion within 60 days after completion of
vits or a request for further pro- proceedings on the application. The de-
ceedings under § 826.36. cision shall include written findings
and conclusions on the applicant’s eli-
§ 826.34 Comments by other parties. gibility and status as a prevailing
Any party to a proceeding other than party and an explanation of the rea-
the applicant and agency counsel may sons for any difference between the
file comments on an application within amount requested and the amount
30 days after it is served or on an an- awarded. The decision shall also in-
swer within 15 days after it is served. A clude, if at issue, findings on whether
commenting party may not participate the agency’s position was substantially
further in proceedings on the applica- justified, whether the applicant unduly
tion unless the administrative law protracted the proceedings, or whether
185
special circumstances make an award PART 830—NOTIFICATION AND RE-

unjust. PORTING OF AIRCRAFT ACCI-
§ 826.38 Board review.
DENTS OR INCIDENTS AND
OVERDUE AIRCRAFT, AND PRES-
Either the applicant or agency coun- ERVATION OF AIRCRAFT WRECK-
sel may seek review of the initial deci- AGE, MAIL, CARGO, AND
sion on the fee application, or the
RECORDS
Board may decide to review the deci-
sion on its own initiative, in accord-
Subpart A—General
ance with subpart H of part 821 for FAA
safety enforcement matters appealed Sec.
under section 609 of the Federal Avia- 830.1 Applicability.
tion Act. If neither the applicant nor 830.2 Definitions.
agency counsel seeks review and the
Board does not take review on its own Subpart B—Initial Notification of Aircraft
initiative, the initial decision on the Accidents, Incidents, and Overdue Aircraft
application shall become a final deci- 830.5 Immediate notification.
sion of the Board 30 days after it is 830.6 Information to be given in notifica-
issued. Whether to review a decision is tion.
a matter within the discretion of the
Board. If review is taken, the Board Subpart C—Preservation of Aircraft
will issue a final decision on the appli- Wreckage, Mail, Cargo, and Records
cation or remand the application to the 830.10 Preservation of aircraft wreckage,
administrative law judge who issued mail, cargo, and records.
the initial fee award determination for
further proceedings. Subpart D—Reporting of Aircraft Accidents,
Incidents, and Overdue Aircraft
§ 826.39 Judicial review.
830.15 Reports and statements to be filed.
Judicial review of final Board deci-
sions on awards may be sought as pro- AUTHORITY: Federal Aviation Act of 1958,
as amended (49 U.S.C. 40101 et seq.), and the
vided in 5 U.S.C. 504(c)(2). Independent Safety Board Act of 1974, as
amended (49 U.S.C. 1101 et seq.).
§ 826.40 Payment of award.
SOURCE: 53 FR 36982, Sept. 23, 1988, unless
An applicant seeking payment of an otherwise noted.
award shall submit to the disbursing
official of the FAA a copy of the
Board’s final decision granting the
Subpart A—General
award, accompanied by a statement § 830.1 Applicability.
that the applicant will not seek review
of the decision in the United States This part contains rules pertaining
courts. Applications for award grants to:
in cases involving the FAA shall be (a) Initial notification and later re-
sent to: The Office of Accounting and porting of aircraft incidents and acci-
dents and certain other occurrences in
Audit, AAA–1, Federal Aviation Ad-
the operation of aircraft, wherever
ministration, 800 Independence Avenue,
they occur, when they involve civil air-
SW., Washington, DC 20591. The agency
craft of the United States; when they
will pay the amount awarded to the ap- involve certain public aircraft, as spec-
plicant within 60 days, unless judicial ified in this part, wherever they occur;
review of the award or of the under- and when they involve foreign civil air-
lying decision of the adversary adju- craft where the events occur in the
dication has been sought by the appli- United States, its territories, or its
cant or any other party to the pro- possessions.
ceeding. (b) Preservation of aircraft wreckage,
mail, cargo, and records involving all
civil and certain public aircraft acci-
dents, as specified in this part, in the
186
United States and its territories or Notwithstanding any limitation relat-

possessions. ing to use of the aircraft for commer-
[60 FR 40112, Aug. 7, 1995]
cial purposes, an aircraft shall be con-
sidered to be a public aircraft without
§ 830.2 Definitions. regard to whether it is operated by a
unit of government on behalf of an-
As used in this part the following
other unit of government pursuant to a
words or phrases are defined as follows:
cost reimbursement agreement, if the
Aircraft accident means an occurrence
associated with the operation of an air- unit of government on whose behalf the
craft which takes place between the operation is conducted certifies to the
time any person boards the aircraft Administrator of the Federal Aviation
with the intention of flight and all Administration that the operation was
such persons have disembarked, and in necessary to respond to a significant
which any person suffers death or seri- and imminent threat to life or property
ous injury, or in which the aircraft re- (including natural resources) and that
ceives substantial damage. no service by a private operator was
Civil aircraft means any aircraft other reasonably available to meet the
than a public aircraft. threat.
Fatal injury means any injury which Serious injury means any injury
results in death within 30 days of the which: (1) Requires hospitalization for
accident. more than 48 hours, commencing with-
Incident means an occurrence other in 7 days from the date of the injury
than an accident, associated with the was received; (2) results in a fracture of
operation of an aircraft, which affects any bone (except simple fractures of
or could affect the safety of operations. fingers, toes, or nose); (3) causes severe
Operator means any person who hemorrhages, nerve, muscle, or tendon
causes or authorizes the operation of damage; (4) involves any internal
an aircraft, such as the owner, lessee, organ; or (5) involves second- or third-
or bailee of an aircraft. degree burns, or any burns affecting
Public aircraft means an aircraft used more than 5 percent of the body sur-
only for the United States Govern- face.
ment, or an aircraft owned and oper- Substantial damage means damage or
ated (except for commercial purposes) failure which adversely affects the
or exclusively leased for at least 90 structural strength, performance, or
continuous days by a government other flight characteristics of the aircraft,
than the United States Government, and which would normally require
including a State, the District of Co- major repair or replacement of the af-
lumbia, a territory or possession of the fected component. Engine failure or
United States, or a political subdivi- damage limited to an engine if only
sion of that government. ‘‘Public air- one engine fails or is damaged, bent
craft’’ does not include a government- fairings or cowling, dented skin, small
owned aircraft transporting property punctured holes in the skin or fabric,
for commercial purposes and does not ground damage to rotor or propeller
include a government-owned aircraft blades, and damage to landing gear,
transporting passengers other than: wheels, tires, flaps, engine accessories,
transporting (for other than commer- brakes, or wingtips are not considered
cial purposes) crewmembers or other ‘‘substantial damage’’ for the purpose
persons aboard the aircraft whose pres- of this part.
ence is required to perform, or is asso-
[53 FR 36982, Sept. 23, 1988, as amended at 60
ciated with the performance of, a gov- FR 40112, Aug. 7, 1995]
ernmental function such as fire-
fighting, search and rescue, law en-
forcement, aeronautical research, or Subpart B—Initial Notification of
biological or geological resource man- Aircraft Accidents, Incidents,
agement; or transporting (for other and Overdue Aircraft
than commercial purposes) persons
aboard the aircraft if the aircraft is op- § 830.5 Immediate notification.
erated by the Armed Forces or an in- The operator of any civil aircraft, or
telligence agency of the United States. any public aircraft not operated by the
187
Armed Forces or an intelligence agen- § 830.6 Information to be given in noti-

cy of the United States, or any foreign fication.
aircraft shall immediately, and by the The notification required in § 830.5
most expeditious means available, no- shall contain the following informa-
tify the nearest National Transpor- tion, if available:
tation Safety Board (Board) field of- (a) Type, nationality, and registra-
fice 1 when: tion marks of the aircraft;
(a) An aircraft accident or any of the (b) Name of owner, and operator of
following listed incidents occur: the aircraft;
(1) Flight control system malfunc- (c) Name of the pilot-in-command;
tion or failure; (d) Date and time of the accident;
(2) Inability of any required flight (e) Last point of departure and point
crewmember to perform normal flight of intended landing of the aircraft;
duties as a result of injury or illness; (f) Position of the aircraft with ref-
(3) Failure of structural components erence to some easily defined geo-
of a turbine engine excluding com- graphical point;
pressor and turbine blades and vanes; (g) Number of persons aboard, num-
(4) In-flight fire; or ber killed, and number seriously in-
(5) Aircraft collide in flight. jured;
(6) Damage to property, other than (h) Nature of the accident, the weath-
the aircraft, estimated to exceed $25,000 er and the extent of damage to the air-
for repair (including materials and craft, so far as is known; and
labor) or fair market value in the event (i) A description of any explosives,
of total loss, whichever is less. radioactive materials, or other dan-
(7) For large multiengine aircraft gerous articles carried.
(more than 12,500 pounds maximum
certificated takeoff weight):
(i) In-flight failure of electrical sys- Subpart C—Preservation of Air-
tems which requires the sustained use craft Wreckage, Mail, Cargo,
of an emergency bus powered by a and Records
back-up source such as a battery, aux-
iliary power unit, or air-driven gener- § 830.10 Preservation of aircraft
wreckage, mail, cargo, and records.
ator to retain flight control or essen-
tial instruments; (a) The operator of an aircraft in-
(ii) In-flight failure of hydraulic sys- volved in an accident or incident for
tems that results in sustained reliance which notification must be given is re-
on the sole remaining hydraulic or me- sponsible for preserving to the extent
chanical system for movement of flight possible any aircraft wreckage, cargo,
control surfaces; and mail aboard the aircraft, and all
(iii) Sustained loss of the power or records, including all recording medi-
thrust produced by two or more en- ums of flight, maintenance, and voice
gines; and recorders, pertaining to the operation
(iv) An evacuation of an aircraft in and maintenance of the aircraft and to
which an emergency egress system is the airmen until the Board takes cus-
utilized. tody thereof or a release is granted
(b) An aircraft is overdue and is be- pursuant to § 831.12(b) of this chapter.
lieved to have been involved in an acci- (b) Prior to the time the Board or its
dent. authorized representative takes cus-
tody of aircraft wreckage, mail, or
[53 FR 36982, Sept. 23, 1988, as amended at 60
cargo, such wreckage, mail, or cargo
FR 40113, Aug. 7, 1995]
may not be disturbed or moved except
to the extent necessary:
1 The Board field offices are listed under
(1) To remove persons injured or
U.S. Government in the telephone direc- trapped;
tories of the following cities: Anchorage, AK,
(2) To protect the wreckage from fur-
Atlanta, GA, West Chicago, IL, Denver, CO,
Arlington, TX, Gardena (Los Angeles), CA, ther damage; or
Miami, FL, Parsippany, NJ (metropolitan (3) To protect the public from injury.
New York, NY), Seattle, WA, and Wash- (c) Where it is necessary to move air-
ington, DC. craft wreckage, mail or cargo,
188
sketches, descriptive notes, and photo- 831.5 Priority of Board investigations.

graphs shall be made, if possible, of the 831.6 Request to withhold information.
original positions and condition of the 831.7 Right to representation.
831.8 Investigator-in-charge.
wreckage and any significant impact 831.9 Authority of Board representatives.
marks. 831.10 Autopsies.
(d) The operator of an aircraft in- 831.11 Parties to the investigation.
volved in an accident or incident shall 831.12 Access to and release of wreckage,
retain all records, reports, internal records, mail, and cargo.
documents, and memoranda dealing 831.13 Flow and dissemination of accident
with the accident or incident, until au- or incident information.
thorized by the Board to the contrary. 831.14 Proposed findings.
AUTHORITY: Independent Safety Board Act
Subpart D—Reporting of Aircraft of 1974, as amended (49 U.S.C. 1101 et seq.);
Federal Aviation Act of 1958, as amended (49
Accidents, Incidents, and U.S.C. 40101 et seq.).
Overdue Aircraft
SOURCE: 53 FR 15847, May 4, 1988, unless
§ 830.15 Reports and statements to be otherwise noted.
filed.
§ 831.1 Applicability of part.
(a) Reports. The operator of a civil,
public (as specified in § 830.5), or foreign Unless otherwise specifically ordered
aircraft shall file a report on Board by the National Transportation Safety
Form 6120.1⁄2 (OMB No. 3147–0001) 2 with- Board (Board), the provisions of this
in 10 days after an accident, or after 7 part shall govern all accident or inci-
days if an overdue aircraft is still miss- dent investigations, conducted under
ing. A report on an incident for which the authority of title VII of the Fed-
immediate notification is required by eral Aviation Act of 1958, as amended,
§ 830.5(a) shall be filed only as requested and the Independent Safety Board Act
by an authorized representative of the of 1974. Rules applicable to accident
Board. hearings and reports are set forth in
(b) Crewmember statement. Each crew- part 845.
member, if physically able at the time § 831.2 Responsibility of Board.
the report is submitted, shall attach a
statement setting forth the facts, con- (a) Aviation. (1) The Board is respon-
ditions, and circumstances relating to sible for the organization, conduct, and
the accident or incident as they appear control of all accident and incident in-
to him. If the crewmember is incapaci- vestigations (see § 830.2 of this chapter)
tated, he shall submit the statement as within the Untied States, its terri-
soon as he is physically able. tories and possessions, where the acci-
(c) Where to file the reports. The oper- dent or incident involves any civil air-
ator of an aircraft shall file any report craft or certain public aircraft (as spec-
with the field office of the Board near- ified in § 830.5 of this chapter), includ-
est the accident or incident. ing an investigation involving civil or
public aircraft (as specified in § 830.5)
[53 FR 36982, Sept. 23, 1988, as amended at 60 on the one hand, and an Armed Forces
FR 40113, Aug. 7, 1995]
or intelligence agency aircraft on the
other hand. It is also responsible for in-
PART 831—ACCIDENT/INCIDENT vestigating accidents/incidents that
INVESTIGATION PROCEDURES occur outside the United States, and
which involve civil aircraft and/or cer-
Sec. tain public aircraft, when the accident/
831.1 Applicability of part. incident is not in the territory of an-
831.2 Responsibility of Board.
831.3 Authority of Directors.
other country (i.e., in international wa-
831.4 Nature of investigation. ters).
(2) Certain aviation investigations
2 Forms are available from the Board field may be conducted by the Federal Avia-
offices (see footnote 1), from Board head- tion Administration (FAA), pursuant
quarters in Washington, DC, and from the to a ‘‘Request to the Secretary of the
Federal Aviation Administration Flight Department of Transportation to In-
Standards District Offices. vestigate Certain Aircraft Accidents,’’
189
effective February 10, 1977 (the text of cluding railroad grade-crossing acci-
the request is contained in the appen- dents, the investigation of which is se-
dix to part 800 of this chapter), but the lected in cooperation with the States;
Board determines the probable cause of and pipeline accidents in which there is
such accidents or incidents. 1 Under no a fatality, significant injury to the en-
circumstances are aviation investiga- vironment, or substantial property
tions where the portion of the inves- damage.
tigation is so delegated to the FAA by (c) Other accidents/incidents. The
the Board considered to be joint inves- Board is also responsible for the inves-
tigations in the sense of sharing re- tigation of an accident/incident that
sponsibility. These investigations re- occurs in connection with the transpor-
main NTSB investigations. tation of people or property which, in
(3) The Board is the agency charged the judgment of the Board, is cata-
with fulfilling the obligations of the strophic, involves problems of a recur-
United States under Annex 13 to the ring character, or would otherwise
Chicago Convention on International carry out the policy of the Independent
Civil Aviation (Eighth Edition, July Safety Board Act of 1974. This author-
1994), and does so consistent with State
ity includes, but is not limited to, ma-
Department requirements and in co-
rine and boating accidents and inci-
ordination with that department.
dents not covered by part 850 of this
Annex 13 contains specific require-
chapter, and accidents/incidents se-
ments for the notification, investiga-
tion, and reporting of certain incidents lected by the Board involving transpor-
and accidents involving international tation and/or release of hazardous ma-
civil aviation. In the case of an acci- terials.
dent or incident in a foreign state in- [62 FR 3806, Jan. 27, 1997]
volving civil aircraft of U.S. registry or
manufacture, where the foreign state is § 831.3 Authority of Directors.
a signatory to Annex 13 to the Chicago
The Directors, Office of Aviation
Convention of the International Civil
Safety, Office of Railroad Safety, Of-
Aviation Organization, the state of oc-
fice of Highway Safety, Office of Ma-
currence is responsible for the inves-
rine Safety, and Office of Pipeline and
tigation. If the accident or incident oc-
Hazardous Materials Safety, subject to
curs in a foreign state not bound by the
provisions of Annex 13 to the Chicago the provisions of § 831.2 and part 800 of
Convention, or if the accident or inci- this chapter, may order an investiga-
dent involves a public aircraft (Annex tion into any accident or incident.
13 applies only to civil aircraft), the [63 FR 71606, Dec. 29, 1998]
conduct of the investigation shall be in
consonance with any agreement en- § 831.4 Nature of investigation.
tered into between the United States
Accident and incident investigations
and the foreign state.
are conducted by the Board to deter-
(b) Surface. The Board is responsible
mine the facts, conditions, and cir-
for the investigation of: railroad acci-
cumstances relating to an accident or
dents in which there is a fatality, sub-
incident and the probable cause(s)
stantial property damage, or which in-
thereof. These results are then used to
volve a passenger train (see part 840 of
ascertain measures that would best
this chapter); major marine casualties
tend to prevent similar accidents or in-
and marine accidents involving a pub-
cidents in the future. The investigation
lic and non-public vessel or involving
includes the field investigation (on-
Coast Guard functions (see part 850 of
scene at the accident, testing, tear-
this chapter 2); highway accidents, in-
down, etc.), report preparation, and,
where ordered, a public hearing. The
1 The authority of a representative of the
investigation results in Board conclu-
FAA during such investigations is the same
as that of a Board investigator under this
sions issued in the form of a report or
part. ‘‘brief’’ of the incident or accident. Ac-
2 Part 850 also governs the conduct of cer- cident/incident investigations are fact-
tain investigations in which the Board and finding proceedings with no formal
the Coast Guard participate jointly. issues and no adverse parties. They are
190
not subject to the provisions of the Ad- cumstances, disclose information re-
ministrative Procedure Act (5 U.S.C. lated to trade secrets.
504 et seq.), and are not conducted for (2) Procedures. Information submitted
the purpose of determining the rights to the Board that the submitter be-
or liabilities of any person. lieves qualifies as a trade secret or con-
[62 FR 3806, Jan. 27, 1997] fidential commercial information sub-
ject either to the Trade Secrets Act or
§ 831.5 Priority of Board investiga- FOIA Exemption 4 shall be so identi-
tions. fied by the submitter on each and
Any investigation of an accident or every page of such document. The
incident conducted by the Safety Board Board shall give the submitter of any
directly or pursuant to the appendix to information so identified, or informa-
part 800 of this chapter (except major tion the Board has substantial reason
marine investigations conducted under to believe qualifies as a trade secret or
49 U.S.C. 1131(a)(1)(E)) has priority over confidential commercial information
all other investigations of such acci- subject either to the Trade Secrets Act
dent or incident conducted by other or FOIA Exemption 4, the opportunity
Federal agencies. The Safety Board to comment on any contemplated dis-
shall provide for the appropriate par- closure, pursuant to 49 U.S.C. 1114(b).
ticipation by other Federal agencies in In all instances where the Board deter-
any such investigation, except that mines to disclose pursuant to 49 U.S.C.
such agencies may not participate in
1114(b) and/or 5 U.S.C. 552, at least 10
the Safety Board’s determination of
days’ notice will be provided the sub-
the probable cause of the accident or
mitter. Notice may not be provided the
incident. Nothing in this section im-
pairs the authority of other Federal submitter when disclosure is required
agencies to conduct investigations of by a law other than FOIA if the infor-
an accident or incident under applica- mation is not identified by the sub-
ble provisions of law or to obtain infor- mitter as qualifying for withholding, as
mation directly from parties involved is required by this paragraph, unless
in, and witnesses to, the transportation the Board has substantial reason to be-
accident or incident, provided they do lieve that disclosure would result in
so without interfering with the Safety competitive harm.
Board’s investigation. The Safety (3) Voluntarily-provided safety informa-
Board and other Federal agencies shall tion. It is the policy of the Safety
assure that appropriate information Board that commercial, safety-related
obtained or developed in the course of information provided to it voluntarily
their investigations is exchanged in a and not in the context of particular ac-
timely manner. cident/incident investigations will not
[62 FR 3807, Jan. 27, 1997] be disclosed. Reference to such infor-
mation for the purposes of safety rec-
§ 831.6 Request to withhold informa- ommendations will be undertaken with
tion. consideration for the confidential na-
(a) Trade Secrets Act (18 U.S.C. 1905), ture of the underlying database(s).
Exemption 4 of the Freedom of Informa- (b) Other. Any person may make
tion Act (5 U.S.C. 552) (FOIA), and The written objection to the public disclo-
Independent Safety Board Act of 1974, as sure of any other information con-
amended. tained in any report or document filed,
(1) General. The Trade Secrets Act or otherwise obtained by the Board,
provides criminal penalties for unau- stating the grounds for such objection.
thorized government disclosure of The Board, on its own initiative or if
trade secrets and other specified con- such objection is made, may order such
fidential commercial information. The information withheld from public dis-
Freedom of Information Act authorizes closure when, in its judgment, the in-
withholding of such information; how-
formation may be withheld under the
ever, the Independent Safety Board
provisions of an exemption to the Free-
Act, at 49 U.S.C. 1114(b), provides that
the Board may, under certain cir- dom of Information Act (5 U.S.C. 552,
191
see part 801 of this chapter), and its re- memoranda, including all files, hos-
lease is found not to be in the public pital records, and correspondence then
interest. or thereafter existing, and kept or re-
[62 FR 3807, Jan. 27, 1997] quired to be kept, shall forthwith per-
mit inspection, photographing, or
§ 831.7 Right to representation. copying thereof by such authorized rep-
Any person interviewed by an au- resentative for the purpose of inves-
thorized representative of the Board tigating an accident or incident, or
during the investigation, regardless of preparing a study, or related to any
the form of the interview (sworn, special investigation pertaining to
unsworn, transcribed, not transcribed, safety or the prevention of accidents.
etc.), has the right to be accompanied, The Safety Board may issue a sub-
represented, or advised by an attorney poena, enforceable in Federal district
or non-attorney representative. court, to obtain testimony or other
[62 FR 3807, Jan. 27, 1997] evidence. Authorized representatives of
the Board may question any person
§ 831.8 Investigator-in-charge. having knowledge relevant to an acci-
The designated investigator-in- dent/incident, study, or special inves-
charge (IIC) organizes, conducts, con- tigation. Authorized representatives of
trols, and manages the field phase of the Board also have exclusive author-
the investigation, regardless of wheth- ity, on behalf of the Board, to decide
er a Board Member is also on-scene at the way in which any testing will be
the accident or incident site. (The role conducted, including decisions on the
of the Board member at the scene of an person that will conduct the test, the
accident investigation is as the official type of test that will be conducted, and
spokesperson for the Safety Board.) any individual who will witness the
The IIC has the responsibility and au- test.
thority to supervise and coordinate all (b) Aviation. Any employee of the
resources and activities of all per- Board, upon presenting appropriate
sonnel, both Board and non-Board, in- credentials, is authorized to examine
volved in the on-site investigation. The and test to the extent necessary any
IIC continues to have considerable or- civil or public aircraft (as specified in
ganizational and management respon- § 830.5), aircraft engine, propeller, ap-
sibilities throughout later phases of
pliance, or property aboard such air-
the investigation, up to and including
craft involved in an accident in air
Board consideration and adoption of a
commerce.
report or brief of probable cause(s).
(c) Surface. (1) Any employee of the
[62 FR 3807, Jan. 27, 1997] Board, upon presenting appropriate
credentials, is authorized to test or ex-
§ 831.9 Authority of Board representa-
tives. amine any vehicle, vessel, rolling
stock, track, pipeline component, or
(a) General. Any employee of the
any part of any such item when such
Board, upon presenting appropriate
examination or testing is determined
credentials, is authorized to enter any
to be required for purposes of such in-
property where an accident/incident
subject to the Board’s jurisdiction has vestigation.
occurred, or wreckage from any such (2) Any examination or testing shall
accident/incident is located, and do all be conducted in such a manner so as
things considered necessary for proper not to interfere with or obstruct un-
investigation. Further, upon demand of necessarily the transportation services
an authorized representative of the provided by the owner or operator of
Board and presentation of credentials, such vehicle, vessel, rolling stock,
any Government agency, or person track, or pipeline component, and shall
having possession or control of any be conducted in such a manner so as to
transportation vehicle or component preserve, to the maximum extent fea-
thereof, any facility, equipment, proc- sible, any evidence relating to the
ess or controls relevant to the inves- transportation accident, consistent
tigation, or any pertinent records or with the needs of the investigation and
192
with the cooperation of such owner or (4) Title 49, United States Code § 1132
operator. provides for the appropriate participa-
[53 FR 15847, May 4, 1988, as amended at 60
tion of the FAA in Board investiga-
FR 40113, Aug. 7, 1995; 62 FR 3807, Jan. 27, tions, and § 1131(a)(2) provides for such
1997] participation by other departments,
agencies, or instrumentalities. The
§ 831.10 Autopsies. FAA and those other entities that
The Board is authorized to obtain, meet the requirements of paragraph
with or without reimbursement, a copy (a)(1) of this section will be parties to
of the report of autopsy performed by the investigation with the same rights
State or local officials on any person and privileges and subject to the same
who dies as a result of having been in- limitations as other parties, provided
volved in a transportation accident however that representatives of the
within the jurisdiction of the Board. FAA need not sign the ‘‘Statement of
The investigator-in-charge, on behalf Party Representatives to NTSB Inves-
of the Board, may order an autopsy or tigation’’ (see paragraph (b) of this sec-
seek other tests of such persons as may tion).
be necessary to the investigation, pro- (b) Aviation investigations. In addition
vided that to the extent consistent to compliance with the provisions of
with the needs of the accident inves- paragraph (a) of this section, and to as-
tigation, provisions of local law pro- sist in ensuring complete under-
tecting religious beliefs with respect to standing of the requirements and limi-
autopsies shall be observed. tations of party status, all party rep-
resentatives in aviation investigations
§ 831.11 Parties to the investigation. shall sign ‘‘Statement of Party Rep-
(a) All Investigations, regardless of resentatives to NTSB Investigation’’
mode. (1) The investigator-in-charge immediately upon attaining party rep-
designates parties to participate in the resentative status. Failure timely to
investigation. Parties shall be limited sign that statement may result in
to those persons, government agencies, sanctions, including loss of status as a
companies, and associations whose em- party.
ployees, functions, activities, or prod- [62 FR 3808, Jan. 27, 1997, as amended at 63
ucts were involved in the accident or FR 71606, Dec. 29, 1998]
incident and who can provide suitable
qualified technical personnel actively § 831.12 Access to and release of
to assist in the investigation. Other wreckage, records, mail, and cargo.
than the FAA in aviation cases, no (a) Only the Board’s accident inves-
other entity is afforded the right to tigation personnel, and persons author-
participate in Board investigations. ized by the investigator-in-charge to
(2) Participants in the investigation participate in any particular investiga-
(i.e., party representatives, party coor- tion, examination or testing shall be
dinators, and/or the larger party orga- permitted access to wreckage, records,
nization) shall be responsive to the di- mail, or cargo in the Board’s custody.
rection of Board representatives and
(b) Wreckage, records, mail, and
may lose party status if they do not
cargo in the Board’s custody shall be
comply with their assigned duties and
released by an authorized representa-
activity proscriptions or instructions,
tive of the Board when it is determined
or if they conduct themselves in a
that the Board has no further need of
manner prejudicial to the investiga-
such wreckage, mail, cargo, or records.
tion.
When such material is released, Form
(3) No party to the investigation
6120.15, ‘‘Release of Wreckage,’’ will be
shall be represented in any aspect of
completed, acknowledging receipt.
the NTSB investigation by any person
who also represents claimants or insur- [62 FR 3808, Jan. 27, 1997]
ers. No party representative may oc-
cupy a legal position (see § 845.13 of this § 831.13 Flow and dissemination of ac-
chapter). Failure to comply with these cident or incident information.
provisions may result in sanctions, in- (a) Release of information during the
cluding loss of status as a party. field investigation, particularly at the
193
accident scene, shall be limited to fac- PART 835—TESTIMONY OF BOARD

tual developments, and shall be made EMPLOYEES
only through the Board Member
present at the accident scene, the rep- Sec.
resentative of the Board’s Office of 835.1 Purpose.
Public Affairs, or the investigator-in- 835.2 Definitions.
charge. 835.3 Scope of permissible testimony.
(b) All information concerning the 835.4 Use of reports.
accident or incident obtained by any 835.5 Manner in which testimony is given in
person or organization participating in civil litigation.
835.6 Request for testimony in civil litiga-
the investigation shall be passed to the tion.
IIC through appropriate channels be- 835.7 Testimony of former Board employees.
fore being provided to any individual 835.8 Testimony by current Board employ-
outside the investigation. Parties to ees regarding prior activity.
the investigation may relay to their re- 835.9 Procedure in the event of a subpoena
spective organizations information in civil litigation.
necessary for purposes of prevention or 835.10 Testimony in Federal, State, or local
remedial action. However, no informa- criminal investigations and other pro-
ceedings.
tion concerning the accident or inci- 835.11 Obtaining Board accident reports,
dent may be released to any person not factual accident reports, and supporting
a party representative to the investiga- information.
tion (including non-party representa-
AUTHORITY: 5 U.S.C. 301; Independent Safe-
tive employees of the party organiza- ty Board Act of 1974, as amended (49 U.S.C.
tion) before initial release by the Safe- 1101 et seq.).
ty Board without prior consultation
and approval of the IIC. § 835.1 Purpose.
[53 FR 15847, May 4, 1988, as amended at 62 This part prescribes policies and pro-
FR 3808, Jan. 27, 1997] cedures regarding the testimony of em-
ployees of the National Transportation
§ 831.14 Proposed findings. Safety Board (Board) in suits or ac-
(a) General. Any person, government tions for damages and criminal pro-
agency, company, or association whose ceedings arising out of transportation
employees, functions, activities, or accidents when such testimony is in an
products were involved in an accident official capacity and arises out of or is
or incident under investigation may related to accident investigation. The
submit to the Board written proposed purpose of this part is to ensure that
findings to be drawn from the evidence the time of Board employees is used
produced during the course of the in- only for official purposes, to avoid em-
vestigation, a proposed probable cause, broiling the Board in controversial
and/or proposed safety recommenda- issues that are not related to its du-
tions designed to prevent future acci- ties, to avoid spending public funds for
dents. non-Board purposes, to preserve the
(b) Timing of submissions. To be con- impartiality of the Board, and to pro-
sidered, these submissions must be re- hibit the discovery of opinion testi-
ceived before the matter is calendared mony.
for consideration at a Board meeting. [63 FR 71607, Dec. 29, 1998]
All written submissions are expected to
have been presented to staff in advance § 835.2 Definitions.
of the formal scheduling of the meet-
Accident, for purposes of this part in-
ing. This procedure ensures orderly and
cludes ‘‘incident.’’
thorough consideration of all views.
Board accident report means the re-
(c) Exception. This limitation does
port containing the Board’s determina-
not apply to safety enforcement cases
tions, including the probable cause of
handled by the Board pursuant to part
an accident, issued either as a nar-
821 of this chapter. Separate ex parte
rative report or in a computer format
rules, at part 821, subpart J, apply to
(‘‘briefs’’ of accidents). Pursuant to
those proceedings.
section 701(e) of the Federal Aviation
[62 FR 3808, Jan. 27, 1997] Act of 1958 (FA Act), and section 304(c)
194
of the Independent Safety Board Act of (c) Board employees may testify
1974 (49 U.S.C. 1154(b)) (Safety Act), no about the firsthand information they
part of a Board accident report may be obtained during an investigation that
admitted as evidence or used in any is not reasonably available elsewhere,
suit or action for damages growing out including observations recorded in
of any matter mentioned in such re- their own factual accident reports.
ports. Consistent with the principles cited in
Factual accident report means the re- § 835.1 and this section, current Board
port containing the results of the in- employees are not authorized to testify
vestigator’s investigation of the acci- regarding other employee’s reports, or
dent. The Board does not object to, and other types of Board documents, in-
there is no statutory bar to, admission cluding but not limited to safety rec-
in litigation of factual accident re- ommendations, safety studies, safety
ports. In the case of a major investiga- proposals, safety accomplishments, re-
tion, group chairman factual reports ports labeled studies, and analysis re-
are factual accident reports. ports, as they contain staff analysis
and/or Board conclusions.
[63 FR 71607, Dec. 29, 1998, as amended at 64 (d) Briefs of accidents may be re-
FR 5622, Feb. 4, 1999] leased in conjunction with factual acci-
dent reports. Nevertheless, they are
§ 835.3 Scope of permissible testimony. not part of those reports and are not to
(a) Section 701(e) of the FA Act and be admitted in evidence or used in a
section 304(c) of the Safety Act pre- deposition approved under this part.
clude the use or admission into evi- (e) Not all material in a factual acci-
dence of Board accident reports in any dent report may be the subject of testi-
suit or action for damages arising from mony. The purpose of the factual acci-
accidents. These sections reflect Con- dent report, in great part, is to inform
gress’ ‘‘strong * * * desire to keep the the public at large, and as a result the
Board free of the entanglement of such factual accident report may contain in-
suits.’’ Rep. No. 93–1192, 93d Cong., 2d formation and conclusions for which
Sess., 44 (1974), and serve to ensure that testimony is prohibited by this part.
the Board does not exert an undue in- (f) No employee may testify in any
fluence on litigation. The purposes of matter absent advance approval by the
these sections would be defeated if ex- General Counsel as provided in this
pert opinion testimony of Board em- part.
ployees, which may be reflected in the [55 FR 41541, Oct. 12, 1990, as amended at 63
views of the Board expressed in its re- FR 71607, Dec. 29, 1998; 64 FR 5622, Feb. 4,
ports, were admitted in evidence or 1999]
used in litigation arising out of an ac-
cident. The Board relies heavily upon § 835.4 Use of reports.
its investigators’ opinions in its delib- (a) As a testimonial aid and to re-
erations. Furthermore, the use of fresh their memories, Board employees
Board employees as experts to give may use copies of the factual accident
opinion testimony would impose a sig- report they prepared, and may refer to
nificant administrative burden on the and cite from that report during testi-
Board’s investigative staff. Litigants mony.
must obtain their expert witnesses (b) Consistent with section 701(e) of
from other sources. the FA Act and section 304(c) of the
(b) For the reasons stated in para- Safety Act, a Board employee may not
graph (a) of this section and § 835.1, use the Board’s accident report for any
Board employees may only testify as to purpose during his testimony.
the factual information they obtained [55 FR 41541, Oct. 12, 1990, as amended at 63
during the course of an investigation, FR 71607, Dec. 29, 1998]
including factual evaluations embodied
in their factual accident reports. How- § 835.5 Manner in which testimony is
ever, they shall decline to testify re- given in civil litigation.
garding matters beyond the scope of (a) Testimony of Board employees
their investigation, and they shall not with unique, firsthand information
give any expert or opinion testimony. may be made available for use in civil
195
actions or civil suits for damages aris- the factual accident report is issued
ing out of accidents through deposi- (i.e., in the public docket). In the case
tions or written interrogatories. Board of major accident investigations where
employees are not permitted to appear there are multiple factual reports
and testify in court in such actions. issued and testimony of group chair-
(b) Normally, depositions will be men is sought, the General Counsel
taken and interrogatories answered at may approve depositions regarding
the Board’s office to which the em- completed group factual reports at any
ployee is assigned, and at a time ar-
time after incorporation of the report
ranged with the employee reasonably
in the public docket. However, no depo-
fixed to avoid substantial interference
with the performance of his duties. sition will be approved prior to the
(c) Board employees are authorized Board’s public hearing, where one is
to testify only once in connection with scheduled or contemplated. The Gen-
any investigation they have made of an eral Counsel may approve a deposition
accident. Consequently, when more in the absence of a factual accident re-
than one civil lawsuit arises as a result port when such a report will not be
of an accident, it shall be the duty of issued but all staff fact-finding is com-
counsel seeking the employee’s deposi- plete.
tion to ascertain the identity of all (c) The General Counsel shall attach
parties to the multiple lawsuits and to the approval of any deposition such
their counsel, and to advise them of reasonable conditions as may be
the fact that a deposition has been deemed appropriate in order that the
granted, so that all interested parties testimony will be consistent with
may be afforded the opportunity to § 835.1, will be limited to the matters
participate therein. delineated in § 835.3, will not interfere
(d) Upon completion of the deposition with the performance of the duties of
of a Board employee, the original of the employee as set forth in § 835.5, and
the transcript will be provided the de-
will otherwise conform to the policies
ponent for signature and correction,
of this part.
which the Board does not waive. A
copy of the transcript of the testimony (d) A subpoena shall not be served
and any videotape shall be furnished, upon a Board employee in connection
at the expense of the party requesting with the taking of a deposition in civil
the deposition, to the Board’s General litigation.
Counsel at Washington, DC head- [63 FR 71607, Dec. 29, 1998]
quarters for the Board’s files.
[55 FR 41541, Oct. 12, 1990, as amended at 63 § 835.7 Testimony of former Board em-
FR 71607, Dec. 29, 1998] ployees.
It is not necessary to request Board
§ 835.6 Request for testimony in civil
litigation. approval for testimony of a former
Board employee, nor is testimony lim-
(a) A written request for testimony ited to depositions. However, the scope
by deposition or interrogatories of a of permissible testimony continues to
Board employee relating to an accident
be constrained by all the limitations
shall be addressed to the General Coun-
set forth in § 835.3 and § 835.4.
sel, who may approve or deny the re-
quest consistent with this part. Such [63 FR 71608, Dec. 29, 1998]
request shall set forth the title of the
civil case, the court, the type of acci- § 835.8 Testimony by current Board
dent (aviation, railroad, etc.), the date employees regarding prior activity.
and place of the accident, the reasons Any testimony regarding any acci-
for desiring the testimony, and a show- dent within the Board’s jurisdiction, or
ing that the information desired is not any expert testimony arising from em-
reasonably available from other ployment prior to Board service is pro-
sources. hibited absent approval by the General
(b) Where testimony is sought in con-
Counsel. Approval shall only be given if
nection with civil litigation, the Gen-
testimony will not violate § 835.1 and

eral Counsel shall not approve it until
196
§ 835.3, and is subject to whatever con- no expert or opinion testimony shall be

ditions the General Counsel finds nec- given.
essary to promote the purposes of this
[63 FR 71608, Dec. 29, 1998]
part as set forth in § 835.1 and § 835.3.
[63 FR 71608, Dec. 29, 1998] § 835.11 Obtaining Board accident re-
ports, factual accident reports, and
§ 835.9 Procedure in the event of a supporting information.
subpoena in civil litigation. It is the responsibility of the indi-
(a) If the Board employee has re- vidual requesting testimony to obtain
ceived a subpoena to appear and testify desired documents. There are a number
in connection with civil litigation, a of ways to obtain Board accident re-
request for his deposition shall not be ports, factual accident reports, and ac-
approved until the subpoena has been companying accident docket files. Our
withdrawn. rules at parts 801 and 837 of this chap-
(b) Upon receipt of a subpoena, the ter explain our procedures, as will our
employee shall immediately notify the web site, at www.ntsb.gov. Or, you may
General Counsel and provide all infor- call our Public Inquiries Branch, at
mation requested by the General Coun- (800) 877–6799. Documents will not be
sel. supplied by witnesses at depositions,
nor will copying services be provided
(c) The General Counsel shall deter-
by deponents.
mine the course of action to be taken
and will so advise the employee. [63 FR 71608, Dec. 29, 1998]
[63 FR 71608, Dec. 29, 1998]
PART 837—PRODUCTION OF
§ 835.10 Testimony in Federal, State, RECORDS IN LEGAL PROCEEDINGS
or local criminal investigations and
other proceedings. Sec.
(a) As with civil litigation, the Board 837.1 Purpose and scope.
prefers that testimony be taken by 837.2 Applicability.
deposition if court rules permit, and 837.3 Published reports, material contained
in the public accident investigation
that testimony await the issuance of
dockets, and accident database data.
the factual accident report. The Board 837.4 Other material.
recognizes, however, that in the case of
coroner’s inquests and grand jury pro- AUTHORITY: 49 U.S.C. 1101 et seq.; 40101 et
ceedings this may not be possible. The seq.; 5 U.S.C. 301.
Board encourages those seeking testi- SOURCE: 62 FR 27703, May 21, 1997, unless
mony of Board employees to contact otherwise noted.
the General Counsel as soon as such
testimony is being considered. When- § 837.1 Purpose and scope.
ever the intent to seek such testimony (a) This part sets forth procedures to
is communicated to the employee, he be followed when requesting material
shall immediately notify the General for use in legal proceedings (including
Counsel. administrative proceedings) in which
(b) In any case, Board employees are the National Transportation Safety
prohibited from testifying in any civil, Board (NTSB or Board) is not a party,
criminal, or other matter, either in and procedures to be followed by the
person or by deposition or interrog- employee upon receipt of a subpoena,
atories, absent advance approval of the order, or other demand (collectively re-
General Counsel. The Board discour- ferred to here as a demand) by a court
ages the serving of a subpoena for tes- or other competent authority or by a
timony but, if issued, it should be private litigant. ‘‘Material,’’ as used in
served on the General Counsel, rather this part, means any type of physical
than the employee. or documentary evidence, including
(c) If permission to testify by deposi- but not limited to paper documents,
tion or in person is granted, testimony electronic media, videotapes, audio-
shall be limited as set forth in § 835.3. tapes, etc.
Only factual testimony is authorized; (b) The purposes of this part are to:
197
(1) Conserve the time of employees (b) No subpoena shall be issued to ob-
for conducting official business; tain materials subject to this para-
(2) Minimize the possibility of involv- graph, and any subpoena issued shall
ing the NTSB in controversial issues be required to be withdrawn prior to
not related to its mission; release of the requested information.
(3) Maintain the impartiality of the Payment of reproduction fees may be
Board among private litigants; required in advance.
(4) Avoid spending the time and
money of the United States for private § 837.4 Other material.
purposes; and (a) Production prohibited unless ap-
(5) To protect confidential, sensitive
proved. Except in the case of the mate-
information, and the deliberative proc-
rial referenced in § 837.3, no employee
esses of the Board.
or former employee of NTSB shall, in
§ 837.2 Applicability. response to a demand of a private liti-
gant, court, or other authority,
This part applies to requests to
produce any material contained in the
produce material concerning informa-
files of the NTSB (whether or not agen-
tion acquired in the course of per-
forming official duties or because of cy records under 5 U.S.C. 552) or
the employee’s official status. Specifi- produce any material acquired as part
cally, this part applies to requests for: of the performance of the person’s offi-
material contained in NTSB files; and cial duties or because of the person’s
any information or material acquired official status, without the prior writ-
by an employee of the NTSB in the per- ten approval of the General Counsel.
formance of official duties or as a re- (b) Procedures to be followed for the
sult of the employee’s status. Two sets production of material under this para-
of procedures are here established, de- graph. (1) All demands for material
pendent on the type of material shall be submitted to the General
sought. Rules governing requests for Counsel at NTSB headquarters, Wash-
employee testimony, as opposed to ma- ington, DC 20594. If an employee re-
terial production, can be found at 49 ceives a demand, he shall forward it
CFR part 835. Document production immediately to the General Counsel.
shall not accompany employee testi- (2) Each demand must contain an af-
mony, absent compliance with this fidavit by the party seeking the mate-
part and General Counsel approval. rial or his attorney setting forth the
material sought and its relevance to
§ 837.3 Published reports, material the proceeding, and containing a cer-
contained in the public accident in-
vestigation dockets, and accident tification, with support, that the infor-
database data. mation is not available from other
sources, including Board materials de-
(a) Demands for material contained
scribed in §§ 837.3 and part 801 of this
in the NTSB’s official public docket
chapter.
files of its accident investigations, or
its computerized accident database(s) (3) In the absence of General Counsel
shall be submitted, in writing, to the approval of a demand, the employee is
Public Inquiries Branch. Demands for not authorized to comply with the de-
specific published reports and studies mand.
should be submitted to the National (4) The General Counsel shall advise
Technical Information Service. The the requester of approval or denial of
Board does not maintain stock of these the demand, and may attach whatever
items. Demands for information col- conditions to approval considered ap-
lected in particular accident investiga- propriate or necessary to promote the
tions and made a part of the public purposes of this part. The General
docket should be submitted to the Pub- Counsel may also permit exceptions to
lic Inquiries Branch or, directly, to our any requirement in this part when nec-
contractor. For information regarding essary to prevent a miscarriage of jus-
the types of documents routinely tice, or when the exception is in the
issued by the Board, see 49 CFR part best interests of the NSTB and/or the
801. United States.
198
PART 840—RULES PERTAINING TO § 840.3 Notification of railroad acci-

NOTIFICATION OF RAILROAD dents.
ACCIDENTS The operator of a railroad shall no-
tify the Board by telephoning the Na-
Sec. tional Response Center at telephone
840.1 Applicability. 800–424–0201 at the earliest practicable
840.2 Definitions. time after the occurrence of any one of
840.3 Notification of railroad accidents. the following railroad accidents:
840.4 Information to be given in notifica- (a) No later than 2 hours after an ac-
tion. cident which results in:
840.5 Inspection, examination and testing of (1) A passenger or employee fatality
physical evidence. or serious injury to two or more crew-
840.6 Priority of Board investigations.
members or passengers requiring ad-
AUTHORITY: Sec. 304(a)(1)(c), Independent mission to a hospital;
Safety Board Act of 1974, as amended (49 (2) The evacuation of a passenger
U.S.C. 1903). train;
(3) Damage to a tank car or container
resulting in release of hazardous mate-
This part contains the Safety Board’s rials or involving evacuation of the
accident notification requirements, general public; or
and its authority for inspection, exam- (4) A fatality at a grade crossing.
ination, and testing of physical evi- (b) No later than 4 hours after an ac-
dence, and describes the exercise of the cident which does not involve any of
Safety Board’s priority accorded to its the circumstances enumerated in para-
activities when investigating railroad graph (a) of this section but which re-
accidents. sults in:
(1) Damage (based on a preliminary
[47 FR 49408, Nov. 1, 1982]
gross estimate) of $150,000 or more for
§ 840.2 Definitions. repairs, or the current replacement
cost, to railroad and nonrailroad prop-
As used in this part, the following erty; or
words or phrases are defined as follows: (2) Damage of $25,000 or more to a
(a) Railroad means any system of sur- passenger train and railroad and non-
face transportation of persons or prop- railroad property.
erty over rails. It includes, but is not (c) Accidents involving joint oper-
limited to, line-haul freight and pas- ations must be reported by the railroad
senger-carrying railroads, and rapid that controls the track and directs the
transit, commuter, scenic, subway, and movement of trains where the accident
elevated railways. has occurred.
(b) Accident means any collision, de- (d) Where an accident for which noti-
railment, or explosion involving rail- fication is required by paragraph (a) or
road trains, locomotives, and cars; or (b) of this section occurs in a remote
any other loss-causing event involving area, the time limits set forth in that
the operation of such railroad equip- paragraph shall commence from the
ment that results in a fatality to a pas- time the first railroad employee who
senger or employee, or the emergency was not at the accident site at the time
evacuation of persons. of its occurrence has received notice
(c) Joint operations means rail oper- thereof.
ations conducted on a track used joint-
[53 FR 49152, Dec. 6, 1988]
ly or in common by two or more rail-
roads subject to this part, or operation § 840.4 Information to be given in noti-
of a train, locomotive, or car by one fication.
railroad over the track of another rail- The notice required by § 840.3 shall in-
road. clude the following information:
(d) Fatality means the death of a per- (a) Name and title of person report-
son either at the time an accident oc- ing.
curs or within 24 hours thereafter. (b) Name of railroad.
[41 FR 13925, Apr. 1, 1976, as amended at 47 (c) Location of accident (relate to
FR 49408, Nov. 1, 1982] nearest city).
199
(d) Time and date of accident. such investigation, except that such
(e) Description of accident. agencies may not participate in the
(f) Casualties: Safety Board’s determination of the
(1) Fatalities. probable cause of the accident. Nothing
(2) Injuries. in this section impairs the authority of
(g) Property damage (estimate). other Federal agencies to conduct in-
(h) Name and telephone number of vestigations of an accident under appli-
person from whom additional informa- cable provisions of law or to obtain in-
tion may be obtained. formation directly from parties in-
volved in, and witnesses to, the trans-
[41 FR 13925, Apr. 1, 1976]
portation accident. The Safety Board
§ 840.5 Inspection, examination and and other Federal agencies shall assure
testing of physical evidence. that appropriate information obtained
or developed in the course of their in-
(a) Any employee of the Safety
vestigations is exchanged in a timely
Board, upon presenting appropriate
manner.
credentials is authorized to enter any
property wherein a transportation ac- [47 FR 49408, Nov. 1, 1982]
cident has occurred or wreckage from
any such accident is located and do all PART 845—RULES OF PRACTICE IN
things necessary for proper investiga- TRANSPORTATION; ACCIDENT/
tion, including examination or testing INCIDENT HEARINGS AND RE-
of any vehicle, rolling stock, track, or
any part of any part of any such item
PORTS
when such examination or testing is
Sec.
determined to be required for purposes
of such investigation. 845.2 Nature of hearing.
(b) Any examination or testing shall 845.3 Sessions open to the public.
be conducted in such a manner so as
not to interfere with or obstruct un- Subpart A—Initial Procedure
necessarily the transportation services
provided by the owner or operator of 845.10 Determination to hold hearing.
845.11 Board of inquiry.
such vehicle, rolling stock, or track,
845.12 Notice of hearing.
and shall be conducted in such a man- 845.13 Designation of parties.
ner so as to preserve, to the maximum
extent feasible, any evidence relating Subpart B—Conduct of Hearing
to the transportation accident, con-
sistent with the needs of the investiga- 845.20 Powers of chairman of board of in-
tion and with the cooperation of such quiry.
845.21 Hearing officer.
owner or operator. The employee may
845.22 Technical panel.
inspect, at reasonable times, records, 845.23 Prehearing conference.
files, papers, processes, controls, and 845.24 Right of representation.
facilities relevant to the investigation 845.25 Examination of witnesses.
of such accident. Each inspection shall 845.26 Evidence.
be commenced and completed promptly 845.27 Proposed findings.
and the results of such inspection, ex- 845.28 Stenographic transcript.
amination, or test made available to 845.29 Payment of witnesses.
the parties.
Subpart C—Board Reports
[47 FR 49408, Nov. 1, 1982]
845.40 Accident report.
§ 840.6 Priority of Board investiga- 845.41 Petitions for reconsideration or modi-
tions. fication.
Any investigation of an accident con- Subpart D—Public Record
ducted by the Safety Board shall have
priority over all other investigations of 845.50 Public docket.
such accident conducted by other Fed- 845.51 Investigation to remain open.
eral agencies. The Safety Board shall AUTHORITY: Title VII, Federal Aviation Act
provide for the appropriate participa- of 1958, as amended (49 U.S.C. 1441 et seq.);
tion by other Federal agencies in any and the Independent Safety Board Act of
200
1974, Pub. L. 93–633, 88 Stat. 2166 (49 U.S.C. tion to hold a public hearing may be
1901 et seq.). made by the Chairman of the Board.
SOURCE: 44 FR 34419, June 14, 1979, unless
otherwise noted. § 845.11 Board of inquiry.
The board of inquiry shall consist of
§ 845.1 Applicability. a Member of the Board who shall be
Unless otherwise specifically ordered chairman of the board of inquiry, and
by the National Transportation Safety such other employees as may be des-
Board (Board), the provisions of this ignated by the chairman of the board
part shall govern all transportation ac- of inquiry. Assignment of a Member to
cident investigation hearings conserve as the chairman of each board of
ducted under the authority of section inquiry shall be determined by the
304(b) of the Independent Safety Board Board. The board of inquiry shall ex-
Act of 1974 (49 U.S.C. 1903(b)) and acci- amine witnesses and secure, in the
dent reports issued by the Board. form of a public record, all known facts
pertaining to the accident or incident
§ 845.2 Nature of hearing. and surrounding circumstances and
conditions from which cause or prob-
Transportation accident hearings are
able cause may be determined and rec-
convened to assist the Board in deter-
ommendations for corrective action
mining cause or probable cause of an
may be formulated.
accident, in reporting the facts, condi-
tions, and circumstances of the acci- [49 FR 32853, Aug. 17, 1984]
dent, and in ascertaining measures
which will tend to prevent accidents § 845.12 Notice of hearing.
and promote transportation safety. The chairman of the board of inquiry
Such hearings are factfinding pro- shall designate a time and place for the
ceedings with no formal issues and no hearing which meets the needs of the
adverse parties and are not subject to Board. Notice to all known interested
the provisions of the Administrative persons shall be given.
Procedure Act (Pub. L. 89–554, 80 Stat.
384 (5 U.S.C. 554)). § 845.13 Designation of parties.
[44 FR 34419, June 14, 1979; 44 FR 39181, July (a) The chairman of the board of in-
5, 1979] quiry shall designate as parties to the
hearing those persons, agencies, com-
§ 845.3 Sessions open to the public. panies, and associations whose partici-
(a) All hearings shall normally be pation in the hearing is deemed nec-
open to the public (subject to the pro- essary in the public interest and whose
vision that any person present shall special knowledge will contribute to
not be allowed at any time to interfere the development of pertinent evidence.
with the proper and orderly func- Parties shall be represented by suitable
tioning of the board of inquiry). qualified technical employees or mem-
(b) Sessions shall not be open to the bers who do not occupy legal positions.
public when evidence of a classified na- (b) No party shall be represented by
ture or which affects national security any person who also represents claim-
is to be received. ants or insurers. Failure to comply
with this provision shall result in loss
of status as a party.
Subpart A—Initial Procedure
§ 845.10 Determination to hold hear- FR 7278, Mar. 3, 1986]
ing.
The Board may order a public hear- Subpart B—Conduct of Hearing
ing as part of an accident investigation
whenever such hearing is deemed nec- § 845.20 Powers of chairman of board
essary in the public interest: Provided, of inquiry.
that if a quorum of the Board is not The chairman of the board of inquiry,
immediately available in the event of a or his designee, shall have the fol-
catastrophic accident, the determina- lowing powers:
201
(a) To designate parties to the hear- (c) A party who, at the time of the
ing and revoke such designations; prehearing conference, fails to advise
(b) To open, continue, or adjourn the the chairman of the board of inquiry of
hearing; additional exhibits he intends to sub-
(c) To determine the admissibility of mit, or additional witnesses he desires
and to receive evidence and to regulate to examine, shall be precluded from in-
the course of the hearing; troducing such evidence unless the
(d) To dispose of procedural requests chairman of the board of inquiry deter-
or similar matters; and mines for good cause shown that such
(e) To take any other action nec- evidence should be admitted.
essary or incident to the orderly con- (d) Expedited hearings. When time per-
duct of the hearing. mits, the chairman of the board of in-
quiry may hold a prehearing con-
[44 FR 34419, June 14, 1979; 44 FR 39181, July ference. In the event that an expedited
5, 1979] hearing is held, the requirements in
paragraphs (b) and (c) of this section
§ 845.21 Hearing officer. concerning the identification of wit-
The hearing officer, upon designation nesses, exhibits or other evidence may
by the Chairman of the Board, shall be waived by the chairman of the board
have the following powers: of inquiry.
(a) To give notice concerning the
time and place of hearing; § 845.24 Right of representation.
(b) To administer oaths and affirma- Any person who appears to testify at
tions to witnesses; and a public hearing shall be accorded the
(c) To issue subpenas requiring the right to be accompanied, represented,
attendance and testimony of witnesses or advised by counsel or by any other
and production of documents. duly qualified representative.
§ 845.22 Technical panel. § 845.25 Examination of witnesses.

The Director, Bureau of Accident In- (a) Witnesses shall be initially exam-
vestigation, or the Director, Bureau of ined by the board of inquiry or its tech-
Field Operations, shall designate mem- nical panel. Following such examina-
bers of the Board’s technical staff to tion, parties to the hearing shall be
participate in the hearing and initially given the opportunity to examine such
develop the testimony of witnesses. witnesses.
(b) Materiality, relevancy, and com-
[49 FR 32853, Aug. 17, 1984] petency of witness testimony, exhibits,
or physical evidence shall not be the
§ 845.23 Prehearing conference. subject of objections in the legal sense
(a) Except as provided in paragraph by a party to the hearing or any other
(d) of this section for expedited hear- person. Such matters shall be con-
ings, the chairman of the board of in- trolled by rulings of the chairman of
quiry shall hold a prehearing con- the board of inquiry on his own mo-
ference with the parties to the hearing tion. If the examination of a witness by
at a convenient time and place prior to a party is interrupted by a ruling of
the hearing. At such prehearing con- the chairman of the board of inquiry,
ference, the parties shall be advised of opportunity shall be given to show ma-
the witnesses to be called at the hear- teriality, relevancy, or competency of
ing, the areas in which they will be ex- the testimony or evidence sought to be
amined, and the exhibits which will be elicited from the witness.
offered in evidence.
(b) Parties shall submit at the pre- § 845.26 Evidence.
hearing conference copies of any addi- The chairman of the board of inquiry
tional documentary exhibits they de- shall receive all testimony and evi-
sire to offer. (Copies of all exhibits pro- dence which may be of aid in deter-
posed for admission by the board of in- mining the cause of accident. He may
quiry and the parties shall be furnished exclude any testimony or exhibits
to the board of inquiry and to all par- which are not pertinent to the inves-
ties, insofar as available at that time.) tigation or are merely cumulative.
202
§ 845.27 Proposed findings. interest in the accident investigation

Any party may submit proposed find- will be entertained only if based on the
ings to be drawn from the testimony discovery of new evidence or on a show-
and exhibits, a proposed probable ing that the Board’s findings are erro-
cause, and proposed safety rec- neous. The petitions shall be in writ-
ommendations designed to prevent fu- ing. Petitions which are repetitious of
ture accidents. The proposals shall be proposed findings submitted pursuant
submitted within the time specified by to § 845.27, or of positions previously ad-
the presiding officer at the close of the vanced, and petitions filed by a party
hearing, and shall be made a part of to the hearing who failed to submit
the public docket. Parties to the hear- proposed findings pursuant to § 845.27
ing shall serve copies of their proposals will not be entertained. Petitions based
on all other parties to the hearing. on the discovery of new matter shall:
[48 FR 52740, Nov. 22, 1983] identify the new matter; contain affi-
davits of prospective witnesses, au-
§ 845.28 Stenographic transcript. thenticated documents, or both, or an
A verbatim report of the hearing explanation of why such substantiation
shall be taken. Copies of the transcript is unavailable; and state why the new
may be obtained by any interested per- matter was not available prior to
son from the Board or from the court Board’s adoption of its findings. Peti-
reporting firm preparing the transcript tions based on a claim of erroneous
upon payment of the fees fixed there- findings shall set forth in detail the
for. (See part 801, Appendix—Fee grounds relied upon.
Schedule.) (b) When a petition for reconsider-
ation or modification is filed with the
§ 845.29 Payment of witnesses.
Board, copies of the petition and any
Any witness subpenaed to attend the supporting documentation shall be
hearing under this part shall be paid served on all other parties to the inves-
such fees for his travel and attendance tigation or hearing and proof of service
as shall be certified by the hearing offi- shall be attached to the petition. The
cer. other parties may file comments no
later than 90 days after service of the
Subpart C—Board Reports petition.
§ 845.40 Accident report. (c) Oral presentation before the
Board normally will not form a part of
(a) The Board will issue a detailed proceedings under this part. However,
narrative accident report in connection the Board may permit oral presen-
with the investigation into those acci- tation where a party or interested per-
dents which the Board determines to son makes an affirmative showing that
warrant such a report. The report will
the written petition for reconsider-
set forth the facts, conditions and cir-
ation or modification is an insufficient
cumstances relating to the accident
means to present the party’s or per-
and the probable cause thereof, along
with any appropriate recommendations son’s position to the Board. Where oral
formulated on the basis of the inves- presentation is allowed, the Board will
tigation. specify the issues to be addressed and
(b) The probable cause and facts, con- all parties to the investigation or hear-
ditions, and circumstances of all other ing will be given notice and the oppor-
accidents will be reported in a manner tunity to participate.
and form prescribed by the Board. [48 FR 52740, Nov. 22, 1983]
§ 845.41 Petitions for reconsideration
or modification. Subpart D—Public Record
(a) Petitions for reconsideration or
§ 845.50 Public docket.
modification of the Board’s findings
and determination of probable cause (a) The public docket shall include
filed by a party to an investigation or all factual information concerning the
hearing or other person having a direct accident. Proposed findings submitted
203
pursuant to § 831.12 or § 845.27 and peti- AUTHORITY: Sec. 304(a)(1)(E), Independent

tions for reconsideration and modifica- Safety Board Act of 1974, Pub. L. 93–633, 88
tion submitted pursuant to § 845.41, Stat. 2168 (49 U.S.C. 1903).
comments thereon by other parties, SOURCE: 42 FR 61204, Dec. 1, 1977, unless
and the Board’s rulings, shall also be otherwise noted.
placed in the public docket.
(b) The docket shall be established as § 850.1 Purpose.
soon as practicable following the acci- This part prescribes the joint regula-
dent, and material shall be added tions of the National Transportation
thereto as it becomes available. Where Safety Board and the Coast Guard for
a hearing is held, the exhibits will be the investigation of marine casualties.
introduced into the record at the hear-
[47 FR 46089, Oct. 15, 1982]
ing.
(c) A copy of the docket shall be § 850.3 Relationship to Coast Guard
made available to any person for re- marine investigation regulations
view at the Washington office of the and procedures.
Board. Copies of the material in the (a) The Coast Guard’s responsibility
docket may be obtained, upon payment to investigate marine casualties is not
of the cost of reproduction, from the eliminated nor diminished by the regu-
Public Inquiries Section, Bureau of Ad- lations in this part.
ministration, National Transportation
(b) In those instances where the
Safety Board, Washington, DC 20594.
Board conducts an investigation in
[44 FR 34419, June 14, 1979, as amended at 48 which the Coast Guard also has respon-
FR 52740, Nov. 22, 1983] sibility under R.S. 4450 (46 U.S.C. 239),
the proceedings are conducted inde-
§ 845.51 Investigation to remain open. pendently, but so as to avoid duplica-
Accident investigations are never of- tion as much as possible.
ficially closed but are kept open for the
submission of new and pertinent evi- § 850.5 Definitions.
dence by any interested person. If the As used in this part:
Board finds that such evidence is rel- (a) Act means Title III of Pub. L. 93–
evant and probative, it shall be made a 633, the Independent Safety Board Act
part of the docket and, where appro- of 1974 (49 U.S.C. 1901, et seq.).
priate, parties will be given an oppor- (b) Board means the National Trans-
tunity to examine such evidence and to portation Safety Board.
comment thereon. (c) Chairman means the Chairman of
the National Transportation Safety
PART 850—COAST GUARD—NA- Board.
TIONAL TRANSPORTATION SAFE- (d) Commandant means the Com-
TY BOARD MARINE CASUALTY mandant of the Coast Guard.
(e) Major marine casualty means a cas-
INVESTIGATIONS ualty involving a vessel, other than a
public vessel, that results in—
Sec.
850.1 Purpose.
(1) The loss of six or more lives;
850.3 Relationship to Coast Guard marine (2) The loss of a mechanically pro-
investigation regulations and procedures. pelled vessel of 100 or more gross tons;
850.5 Definitions. (3) Property damage initially esti-
850.10 Preliminary investigation by the mated as $500,000 or more; or
Coast Guard. (4) Serious threat, as determined by
850.15 Marine casualty investigation by the the Commandant and concurred in by
Board. the Chairman, to life, property, or the
850.20 Cause or probable cause determina- environment by hazardous materials.
tions from Board investigation.
(f) Public vessel means a vessel owned
850.25 Coast Guard marine casualty inves-
tigation for the Board. by the United States, except a vessel to
850.30 Procedures for Coast Guard investiga- which the Act of October 25, 1919, c. 82
tion. (41 Stat. 305, 46 U.S.C. 363) applies.
850.35 Records of the Coast Guard and the (g) Vessel of the United States means a
Board. vessel—
204
(1) Documented, or required to be and at least one fatality or $75,000 in

documented, under the laws of the property damage; or
United States; (3) The Commandant and the Board
(2) Owned in the United States; or agree that the Board shall conduct the
(3) Owned by a citizen or resident of investigation, and the casualty is a
the United States and not registered major marine casualty which involves
under a foreign flag. significant safety issues relating to
Coast Guard safety functions.
§ 850.10 Preliminary investigation by
the Coast Guard. [47 FR 46090, Oct. 15, 1982]
(a) The Coast Guard conducts the § 850.20 Cause or probable cause de-
preliminary investigation of marine terminations from Board investiga-
casualties. tion.
(b) The Commandant determines After an investigation conducted by
from the preliminary investigation the Board under § 850.15, the Board de-
whether: termines cause or probable cause and
(1) The casualty is a major marine issues a report of that determination.
casualty; or
(2) The casualty involves a public and § 850.25 Coast Guard marine casualty
a nonpublic vessel and at least one fa- investigation for the Board.
tality or $75,000 in property damage; or (a) If the Board does not conduct an
(3) The casualty involves a Coast investigation under § 850.15(a), (b)(2) or
Guard and a nonpublic vessel and at (3), the Coast Guard, at the request of
least one fatality or $75,000 in property the Board, may conduct an investiga-
damage; or tion under the Act unless there is an
(4) The casualty is a major marine allegation of Federal Government mis-
casualty which involves significant feasance or nonfeasance.
safety issues relating to Coast Guard (b) The Board will request the Coast
safety functions, e.g., search and res- Guard to conduct an investigation
cue, aids to navigation, vessel traffic under paragraph (a) of this section
systems, commercial vessel safety, etc. within 48 hours of receiving notice
(c) The Commandant notifies the under § 850.10(c).
Board of a casualty described in para- (c) The Coast Guard will advise the
graph (b) of this section. Board within 24 hours of receipt of a re-
[42 FR 61204, Dec. 1, 1977, as amended at 47 quest under paragraph (b) of this sec-
FR 46089, Oct. 15, 1982] tion whether the Coast Guard will con-
duct an investigation under the Act.
§ 850.15 Marine casualty investigation [47 FR 46090, Oct. 15, 1982]
by the Board.
(a) The Board may conduct an inves- § 850.30 Procedures for Coast Guard
tigation under the Act of any major investigation.
marine casualty or any casualty in- (a) The Coast Guard conducts an in-
volving public and nonpublic vessels. vestigation under § 850.25 using the pro-
Where the Board determines it will cedures in 46 CFR 4.01–1 through 4.23–1.
convene a hearing in connection with (b) The Board may designate a person
such an investigation, the Board’s or persons to participate in every phase
rules of practice for transportation ac- of an investigation, including on-scene
cident hearings in 49 CFR part 845 shall investigation, that is conducted under
apply. the provisions of § 850.25.
(b) The Board shall conduct an inves- (c) Consistent with Coast Guard re-
tigation under the Act when: sponsibility to direct the course of the
(1) The casualty involves a Coast investigation, the person or persons
Guard and a nonpublic vessel and at designated by the Board under para-
least one fatality or $75,000 in property graph (b) of this section may:
damage; or (1) Make recommendations about the
(2) The Commandant and the Board scope of the investigation.
agree that the Board shall conduct the (2) Call and examine witnesses.
investigation, and the casualty in- (3) Submit or request additional evi-
volves a public and a nonpublic vessel dence.
205
(d) The Commandant provides a (f) An investigation by the Coast

record of the proceedings to the Board Guard under this section is both an in-
of an investigation of a major marine vestigation under the Act and under
casualty under paragraph (a) of this R.S. 4450 (46 U.S.C. 239).
section.
(e) The Board, under the Act, makes § 850.35 Records of the Coast Guard
and the Board.
its determination of the facts, condi-
tions, and circumstances, and the (a) Records of the Coast Guard made
cause or probable cause of a major ma- under § 850.30 are available to the pub-
rine casualty, using the record of the lic under 49 CFR part 7.
proceedings provided by the Com- (b) Records of the Board made under
mandant under paragraph (d) of this §§ 850.20 and 850.30 are available to the
section and any additional evidence the public under 49 CFR part 801.
Board may acquire under its own au-
thority. PARTS 851–999 [RESERVED]
206
FINDING AIDS
A list of CFR titles, subtitles, chapters, subchapters and parts and an alphabet-
ical list of agencies publishing in the CFR are included in the CFR Index and
Finding Aids volume to the Code of Federal Regulations which is published sepa-
rately and revised annually.
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
207
Table of CFR Titles and Chapters
(Revised as of October 1, 2007)
Title 1—General Provisions
I Administrative Committee of the Federal Register (Parts 1—49)

II Office of the Federal Register (Parts 50—299)
IV Miscellaneous Agencies (Parts 400—500)
Title 2—Grants and Agreements
SUBTITLE A—OFFICE OF MANAGEMENT AND BUDGET GUIDANCE FOR

GRANTS AND AGREEMENTS
I Office of Management and Budget Governmentwide Guidance for
Grants and Agreements (Parts 100—199)
II Office of Management and Budget Circulars and Guidance (200—
299)
SUBTITLE B—FEDERAL AGENCY REGULATIONS FOR GRANTS AND
AGREEMENTS
III Department of Health and Human Services (Parts 300—399)
VI Department of State (Parts 600—699)
VIII Department of Veterans Affairs (Parts 800—899)
IX Department of Energy (Parts 900—999)
XI Department of Defense (Parts 1100—1199)
XIV Department of the Interior (Parts 1400—1499)
XV Environmental Protection Agency (Parts 1500—1599)
XVIII National Aeronautics and Space Administration (Parts 1880—
1899)
XXII Corporation for National and Community Service (Parts 2200—
2299)
XXV National Science Foundation (Parts 2500—2599)
XXVI National Archives and Records Administration (Parts 2600—2699)
XXVII Small Business Administration (Parts 2700—2799)
XXVIII Department of Justice (Parts 2800—2899)
XXXII National Endowment for the Arts (Parts 3200—3299)
XXXIII National Endowment for the Humanities (Parts 3300—3399)
XXXV Export-Import Bank of the United States (Parts 3500—3599)
XXXVII Peace Corps (Parts 3700—3799)
Title 3—The President

I Executive Office of the President (Parts 100—199)
209
Title 4—Accounts
Chap.
I Government Accountability Office (Parts 1—99)
Title 5—Administrative Personnel
I Office of Personnel Management (Parts 1—1199)

II Merit Systems Protection Board (Parts 1200—1299)
III Office of Management and Budget (Parts 1300—1399)
V The International Organizations Employees Loyalty Board
(Parts 1500—1599)
VI Federal Retirement Thrift Investment Board (Parts 1600—1699)
VIII Office of Special Counsel (Parts 1800—1899)
IX Appalachian Regional Commission (Parts 1900—1999)
XI Armed Forces Retirement Home (Parts 2100—2199)
XIV Federal Labor Relations Authority, General Counsel of the Fed-
eral Labor Relations Authority and Federal Service Impasses
Panel (Parts 2400—2499)
XV Office of Administration, Executive Office of the President
(Parts 2500—2599)
XVI Office of Government Ethics (Parts 2600—2699)
XXI Department of the Treasury (Parts 3100—3199)
XXII Federal Deposit Insurance Corporation (Parts 3200—3299)
XXIII Department of Energy (Parts 3300—3399)
XXIV Federal Energy Regulatory Commission (Parts 3400—3499)
XXV Department of the Interior (Parts 3500—3599)
XXVI Department of Defense (Parts 3600—3699)
XXVIII Department of Justice (Parts 3800—3899)
XXIX Federal Communications Commission (Parts 3900—3999)
XXX Farm Credit System Insurance Corporation (Parts 4000—4099)
XXXI Farm Credit Administration (Parts 4100—4199)
XXXIII Overseas Private Investment Corporation (Parts 4300—4399)
XXXV Office of Personnel Management (Parts 4500—4599)
XL Interstate Commerce Commission (Parts 5000—5099)
XLI Commodity Futures Trading Commission (Parts 5100—5199)
XLII Department of Labor (Parts 5200—5299)
XLIII National Science Foundation (Parts 5300—5399)
XLV Department of Health and Human Services (Parts 5500—5599)
XLVI Postal Rate Commission (Parts 5600—5699)
XLVII Federal Trade Commission (Parts 5700—5799)
XLVIII Nuclear Regulatory Commission (Parts 5800—5899)
L Department of Transportation (Parts 6000—6099)
LII Export-Import Bank of the United States (Parts 6200—6299)
LIII Department of Education (Parts 6300—6399)
LIV Environmental Protection Agency (Parts 6400—6499)
LV National Endowment for the Arts (Parts 6500—6599)
LVI National Endowment for the Humanities (Parts 6600—6699)
LVII General Services Administration (Parts 6700—6799)
210
Title 5—Administrative Personnel—Continued
Chap.
LVIII Board of Governors of the Federal Reserve System (Parts 6800—

6899)
LIX National Aeronautics and Space Administration (Parts 6900—
6999)
LX United States Postal Service (Parts 7000—7099)
LXI National Labor Relations Board (Parts 7100—7199)
LXII Equal Employment Opportunity Commission (Parts 7200—7299)
LXIII Inter-American Foundation (Parts 7300—7399)
LXIV Merit Systems Protection Board (Parts 7400—7499)
LXV Department of Housing and Urban Development (Parts 7500—
7599)
LXVI National Archives and Records Administration (Parts 7600—7699)
LXVII Institute of Museum and Library Services (Parts 7700—7799)
LXIX Tennessee Valley Authority (Parts 7900—7999)
LXXI Consumer Product Safety Commission (Parts 8100—8199)
LXXIII Department of Agriculture (Parts 8300—8399)
LXXIV Federal Mine Safety and Health Review Commission (Parts
8400—8499)
LXXVI Federal Retirement Thrift Investment Board (Parts 8600—8699)
LXXVII Office of Management and Budget (Parts 8700—8799)
XCVII Department of Homeland Security Human Resources Manage-
ment System (Department of Homeland Security--Office of
Personnel Management) (Parts 9700—9799)
XCIX Department of Defense Human Resources Management and
Labor Relations Systems (Department of Defense--Office of
Personnel Management) (Parts 9900—9999)
Title 6—Domestic Security
I Department of Homeland Security, Office of the Secretary

(Parts 0—99)
X Privacy and Civil Liberties Oversight Board (Parts 1000—1099)
Title 7—Agriculture
SUBTITLE A—OFFICE OF THE SECRETARY OF AGRICULTURE (PARTS

0—26)
SUBTITLE B—REGULATIONS OF THE DEPARTMENT OF AGRICULTURE
I Agricultural Marketing Service (Standards, Inspections, Mar-
keting Practices), Department of Agriculture (Parts 27—209)
II Food and Nutrition Service, Department of Agriculture (Parts
210—299)
III Animal and Plant Health Inspection Service, Department of Ag-
riculture (Parts 300—399)
IV Federal Crop Insurance Corporation, Department of Agriculture
(Parts 400—499)
V Agricultural Research Service, Department of Agriculture
(Parts 500—599)
211
Title 7—Agriculture—Continued
Chap.
VI Natural Resources Conservation Service, Department of Agri-

culture (Parts 600—699)
VII Farm Service Agency, Department of Agriculture (Parts 700—
799)
VIII Grain Inspection, Packers and Stockyards Administration (Fed-
eral Grain Inspection Service), Department of Agriculture
(Parts 800—899)
IX Agricultural Marketing Service (Marketing Agreements and Or-
ders; Fruits, Vegetables, Nuts), Department of Agriculture
(Parts 900—999)
X Agricultural Marketing Service (Marketing Agreements and Or-
ders; Milk), Department of Agriculture (Parts 1000—1199)
XI Agricultural Marketing Service (Marketing Agreements and Or-
ders; Miscellaneous Commodities), Department of Agriculture
(Parts 1200—1299)
XIV Commodity Credit Corporation, Department of Agriculture
(Parts 1400—1499)
XV Foreign Agricultural Service, Department of Agriculture (Parts
1500—1599)
XVI Rural Telephone Bank, Department of Agriculture (Parts 1600—
1699)
XVII Rural Utilities Service, Department of Agriculture (Parts 1700—
1799)
XVIII Rural Housing Service, Rural Business-Cooperative Service,
Rural Utilities Service, and Farm Service Agency, Depart-
ment of Agriculture (Parts 1800—2099)
XX Local Television Loan Guarantee Board (Parts 2200—2299)
XXVI Office of Inspector General, Department of Agriculture (Parts
2600—2699)
XXVII Office of Information Resources Management, Department of
Agriculture (Parts 2700—2799)
XXVIII Office of Operations, Department of Agriculture (Parts 2800—
2899)
XXIX Office of Energy Policy and New Uses, Department of Agri-
XXX Office of the Chief Financial Officer, Department of Agriculture
(Parts 3000—3099)
XXXI Office of Environmental Quality, Department of Agriculture
(Parts 3100—3199)
XXXII Office of Procurement and Property Management, Department
of Agriculture (Parts 3200—3299)
XXXIII Office of Transportation, Department of Agriculture (Parts
3300—3399)
XXXIV Cooperative State Research, Education, and Extension Service,
Department of Agriculture (Parts 3400—3499)
XXXV Rural Housing Service, Department of Agriculture (Parts 3500—
3599)
XXXVI National Agricultural Statistics Service, Department of Agri-
XXXVII Economic Research Service, Department of Agriculture (Parts
3700—3799)
212
Title 7—Agriculture—Continued
Chap.
XXXVIII World Agricultural Outlook Board, Department of Agriculture

(Parts 3800—3899)
XLI [Reserved]
XLII Rural Business-Cooperative Service and Rural Utilities Service,
Department of Agriculture (Parts 4200—4299)
Title 8—Aliens and Nationality
I Department of Homeland Security (Immigration and Naturaliza-

tion) (Parts 1—499)
V Executive Office for Immigration Review, Department of Justice
(Parts 1000—1399)
Title 9—Animals and Animal Products
I Animal and Plant Health Inspection Service, Department of Ag-

riculture (Parts 1—199)
II Grain Inspection, Packers and Stockyards Administration
(Packers and Stockyards Programs), Department of Agri-
III Food Safety and Inspection Service, Department of Agriculture
(Parts 300—599)
Title 10—Energy
I Nuclear Regulatory Commission (Parts 0—199)

II Department of Energy (Parts 200—699)
III Department of Energy (Parts 700—999)
X Department of Energy (General Provisions) (Parts 1000—1099)
XIII Nuclear Waste Technical Review Board (Parts 1303—1399)
XVII Defense Nuclear Facilities Safety Board (Parts 1700—1799)
XVIII Northeast Interstate Low-Level Radioactive Waste Commission
(Parts 1800—1899)
Title 11—Federal Elections
I Federal Election Commission (Parts 1—9099)
Title 12—Banks and Banking
I Comptroller of the Currency, Department of the Treasury (Parts

1—199)
II Federal Reserve System (Parts 200—299)
III Federal Deposit Insurance Corporation (Parts 300—399)
IV Export-Import Bank of the United States (Parts 400—499)
V Office of Thrift Supervision, Department of the Treasury (Parts
500—599)
VI Farm Credit Administration (Parts 600—699)
213
Title 12—Banks and Banking—Continued
Chap.
VII National Credit Union Administration (Parts 700—799)

VIII Federal Financing Bank (Parts 800—899)
IX Federal Housing Finance Board (Parts 900—999)
XI Federal Financial Institutions Examination Council (Parts
1100—1199)
XIV Farm Credit System Insurance Corporation (Parts 1400—1499)
XV Department of the Treasury (Parts 1500—1599)
XVII Office of Federal Housing Enterprise Oversight, Department of
Housing and Urban Development (Parts 1700—1799)
XVIII Community Development Financial Institutions Fund, Depart-
ment of the Treasury (Parts 1800—1899)
Title 13—Business Credit and Assistance
I Small Business Administration (Parts 1—199)

III Economic Development Administration, Department of Com-
merce (Parts 300—399)
IV Emergency Steel Guarantee Loan Board, Department of Com-
V Emergency Oil and Gas Guaranteed Loan Board, Department of
Commerce (Parts 500—599)
Title 14—Aeronautics and Space
I Federal Aviation Administration, Department of Transportation

(Parts 1—199)
II Office of the Secretary, Department of Transportation (Aviation
Proceedings) (Parts 200—399)
III Commercial Space Transportation, Federal Aviation Adminis-
tration, Department of Transportation (Parts 400—499)
V National Aeronautics and Space Administration (Parts 1200—
1299)
VI Air Transportation System Stabilization (Parts 1300—1399)
Title 15—Commerce and Foreign Trade
SUBTITLE A—OFFICE OF THE SECRETARY OF COMMERCE (PARTS 0—

29)
SUBTITLE B—REGULATIONS RELATING TO COMMERCE AND FOREIGN
TRADE
I Bureau of the Census, Department of Commerce (Parts 30—199)
II National Institute of Standards and Technology, Department of
III International Trade Administration, Department of Commerce
(Parts 300—399)
IV Foreign-Trade Zones Board, Department of Commerce (Parts
400—499)
VII Bureau of Industry and Security, Department of Commerce
(Parts 700—799)
214
Title 15—Commerce and Foreign Trade—Continued
Chap.
VIII Bureau of Economic Analysis, Department of Commerce (Parts

800—899)
IX National Oceanic and Atmospheric Administration, Department
of Commerce (Parts 900—999)
XI Technology Administration, Department of Commerce (Parts
1100—1199)
XIII East-West Foreign Trade Board (Parts 1300—1399)
XIV Minority Business Development Agency (Parts 1400—1499)
SUBTITLE C—REGULATIONS RELATING TO FOREIGN TRADE AGREE-
MENTS
XX Office of the United States Trade Representative (Parts 2000—
2099)
SUBTITLE D—REGULATIONS RELATING TO TELECOMMUNICATIONS
AND INFORMATION
XXIII National Telecommunications and Information Administration,
Department of Commerce (Parts 2300—2399)
Title 16—Commercial Practices
I Federal Trade Commission (Parts 0—999)

II Consumer Product Safety Commission (Parts 1000—1799)
Title 17—Commodity and Securities Exchanges
I Commodity Futures Trading Commission (Parts 1—199)

II Securities and Exchange Commission (Parts 200—399)
IV Department of the Treasury (Parts 400—499)
Title 18—Conservation of Power and Water Resources
I Federal Energy Regulatory Commission, Department of Energy

(Parts 1—399)
III Delaware River Basin Commission (Parts 400—499)
VI Water Resources Council (Parts 700—799)
VIII Susquehanna River Basin Commission (Parts 800—899)
XIII Tennessee Valley Authority (Parts 1300—1399)
Title 19—Customs Duties
I Bureau of Customs and Border Protection, Department of Home-

land Security; Department of the Treasury (Parts 0—199)
II United States International Trade Commission (Parts 200—299)
III International Trade Administration, Department of Commerce
(Parts 300—399)
IV Bureau of Immigration and Customs Enforcement, Department
of Homeland Security (Parts 400—599)
215
Title 20—Employees’ Benefits
Chap.
I Office of Workers’ Compensation Programs, Department of

Labor (Parts 1—199)
II Railroad Retirement Board (Parts 200—399)
III Social Security Administration (Parts 400—499)
IV Employees Compensation Appeals Board, Department of Labor
(Parts 500—599)
V Employment and Training Administration, Department of Labor
(Parts 600—699)
VI Employment Standards Administration, Department of Labor
(Parts 700—799)
VII Benefits Review Board, Department of Labor (Parts 800—899)
VIII Joint Board for the Enrollment of Actuaries (Parts 900—999)
IX Office of the Assistant Secretary for Veterans’ Employment and
Training, Department of Labor (Parts 1000—1099)
Title 21—Food and Drugs
I Food and Drug Administration, Department of Health and

Human Services (Parts 1—1299)
II Drug Enforcement Administration, Department of Justice (Parts
1300—1399)
III Office of National Drug Control Policy (Parts 1400—1499)
Title 22—Foreign Relations
I Department of State (Parts 1—199)

II Agency for International Development (Parts 200—299)
III Peace Corps (Parts 300—399)
IV International Joint Commission, United States and Canada
(Parts 400—499)
V Broadcasting Board of Governors (Parts 500—599)
VII Overseas Private Investment Corporation (Parts 700—799)
IX Foreign Service Grievance Board (Parts 900—999)
X Inter-American Foundation (Parts 1000—1099)
XI International Boundary and Water Commission, United States
and Mexico, United States Section (Parts 1100—1199)
XII United States International Development Cooperation Agency
(Parts 1200—1299)
XIII Millenium Challenge Corporation (Parts 1300—1399)
XIV Foreign Service Labor Relations Board; Federal Labor Relations
Authority; General Counsel of the Federal Labor Relations
Authority; and the Foreign Service Impasse Disputes Panel
(Parts 1400—1499)
XV African Development Foundation (Parts 1500—1599)
XVI Japan-United States Friendship Commission (Parts 1600—1699)
XVII United States Institute of Peace (Parts 1700—1799)
216
Title 23—Highways
Chap.
I Federal Highway Administration, Department of Transportation

(Parts 1—999)
II National Highway Traffic Safety Administration and Federal
Highway Administration, Department of Transportation
(Parts 1200—1299)
III National Highway Traffic Safety Administration, Department of
Transportation (Parts 1300—1399)
Title 24—Housing and Urban Development
SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF HOUSING

AND URBAN DEVELOPMENT (PARTS 0—99)
SUBTITLE B—REGULATIONS RELATING TO HOUSING AND URBAN DE-
VELOPMENT
I Office of Assistant Secretary for Equal Opportunity, Department
of Housing and Urban Development (Parts 100—199)
II Office of Assistant Secretary for Housing-Federal Housing Com-
missioner, Department of Housing and Urban Development
(Parts 200—299)
III Government National Mortgage Association, Department of
Housing and Urban Development (Parts 300—399)
IV Office of Housing and Office of Multifamily Housing Assistance
Restructuring, Department of Housing and Urban Develop-
ment (Parts 400—499)
V Office of Assistant Secretary for Community Planning and De-
velopment, Department of Housing and Urban Development
(Parts 500—599)
VI Office of Assistant Secretary for Community Planning and De-
velopment, Department of Housing and Urban Development
(Parts 600—699) [Reserved]
VII Office of the Secretary, Department of Housing and Urban Devel-
opment (Housing Assistance Programs and Public and Indian
Housing Programs) (Parts 700—799)
VIII Office of the Assistant Secretary for Housing—Federal Housing
Commissioner, Department of Housing and Urban Develop-
ment (Section 8 Housing Assistance Programs, Section 202 Di-
rect Loan Program, Section 202 Supportive Housing for the El-
derly Program and Section 811 Supportive Housing for Persons
With Disabilities Program) (Parts 800—899)
IX Office of Assistant Secretary for Public and Indian Housing, De-
partment of Housing and Urban Development (Parts 900—1699)
X Office of Assistant Secretary for Housing—Federal Housing
ment (Interstate Land Sales Registration Program) (Parts
1700—1799)
XII Office of Inspector General, Department of Housing and Urban
Development (Parts 2000—2099)
XX Office of Assistant Secretary for Housing—Federal Housing
ment (Parts 3200—3899)
XXV Neighborhood Reinvestment Corporation (Parts 4100—4199)
217
Title 25—Indians
Chap.
I Bureau of Indian Affairs, Department of the Interior (Parts 1—

299)
II Indian Arts and Crafts Board, Department of the Interior (Parts
300—399)
III National Indian Gaming Commission, Department of the Inte-
rior (Parts 500—599)
IV Office of Navajo and Hopi Indian Relocation (Parts 700—799)
V Bureau of Indian Affairs, Department of the Interior, and Indian
Health Service, Department of Health and Human Services
(Part 900)
VI Office of the Assistant Secretary-Indian Affairs, Department of
the Interior (Parts 1000—1199)
VII Office of the Special Trustee for American Indians, Department
of the Interior (Parts 1200—1299)
Title 26—Internal Revenue
I Internal Revenue Service, Department of the Treasury (Parts 1—

899)
Title 27—Alcohol, Tobacco Products and Firearms
I Alcohol and Tobacco Tax and Trade Bureau, Department of the

Treasury (Parts 1—399)
II Bureau of Alcohol, Tobacco, Firearms, and Explosives, Depart-
ment of Justice (Parts 400—699)
Title 28—Judicial Administration
I Department of Justice (Parts 0—299)

III Federal Prison Industries, Inc., Department of Justice (Parts
300—399)
V Bureau of Prisons, Department of Justice (Parts 500—599)
VI Offices of Independent Counsel, Department of Justice (Parts
600—699)
VII Office of Independent Counsel (Parts 700—799)
VIII Court Services and Offender Supervision Agency for the District
of Columbia (Parts 800—899)
IX National Crime Prevention and Privacy Compact Council (Parts
900—999)
XI Department of Justice and Department of State (Parts 1100—
1199)
Title 29—Labor
SUBTITLE A—OFFICE OF THE SECRETARY OF LABOR (PARTS 0—99)

SUBTITLE B—REGULATIONS RELATING TO LABOR
I National Labor Relations Board (Parts 100—199)
218
Title 29—Labor—Continued
Chap.
II Office of Labor-Management Standards, Department of Labor

(Parts 200—299)
III National Railroad Adjustment Board (Parts 300—399)
IV Office of Labor-Management Standards, Department of Labor
(Parts 400—499)
V Wage and Hour Division, Department of Labor (Parts 500—899)
IX Construction Industry Collective Bargaining Commission (Parts
900—999)
X National Mediation Board (Parts 1200—1299)
XII Federal Mediation and Conciliation Service (Parts 1400—1499)
XIV Equal Employment Opportunity Commission (Parts 1600—1699)
XVII Occupational Safety and Health Administration, Department of
XX Occupational Safety and Health Review Commission (Parts
2200—2499)
XXV Employee Benefits Security Administration, Department of
XXVII Federal Mine Safety and Health Review Commission (Parts
2700—2799)
XL Pension Benefit Guaranty Corporation (Parts 4000—4999)
Title 30—Mineral Resources
I Mine Safety and Health Administration, Department of Labor

(Parts 1—199)
II Minerals Management Service, Department of the Interior
(Parts 200—299)
III Board of Surface Mining and Reclamation Appeals, Department
of the Interior (Parts 300—399)
IV Geological Survey, Department of the Interior (Parts 400—499)
VII Office of Surface Mining Reclamation and Enforcement, Depart-
ment of the Interior (Parts 700—999)
Title 31—Money and Finance: Treasury
SUBTITLE A—OFFICE OF THE SECRETARY OF THE TREASURY (PARTS

0—50)
SUBTITLE B—REGULATIONS RELATING TO MONEY AND FINANCE
I Monetary Offices, Department of the Treasury (Parts 51—199)
II Fiscal Service, Department of the Treasury (Parts 200—399)
IV Secret Service, Department of the Treasury (Parts 400—499)
V Office of Foreign Assets Control, Department of the Treasury
(Parts 500—599)
VI Bureau of Engraving and Printing, Department of the Treasury
(Parts 600—699)
VII Federal Law Enforcement Training Center, Department of the
Treasury (Parts 700—799)
VIII Office of International Investment, Department of the Treasury
(Parts 800—899)
219
Title 31—Money and Finance: Treasury—Continued
Chap.
IX Federal Claims Collection Standards (Department of the Treas-

ury—Department of Justice) (Parts 900—999)
Title 32—National Defense
SUBTITLE A—DEPARTMENT OF DEFENSE

I Office of the Secretary of Defense (Parts 1—399)
V Department of the Army (Parts 400—699)
VI Department of the Navy (Parts 700—799)
VII Department of the Air Force (Parts 800—1099)
SUBTITLE B—OTHER REGULATIONS RELATING TO NATIONAL DE-
FENSE
XII Defense Logistics Agency (Parts 1200—1299)
XVI Selective Service System (Parts 1600—1699)
XVII Office of the Director of National Intelligence (Parts 1700—1799)
XVIII National Counterintelligence Center (Parts 1800—1899)
XIX Central Intelligence Agency (Parts 1900—1999)
XX Information Security Oversight Office, National Archives and
Records Administration (Parts 2000—2099)
XXI National Security Council (Parts 2100—2199)
XXIV Office of Science and Technology Policy (Parts 2400—2499)
XXVII Office for Micronesian Status Negotiations (Parts 2700—2799)
XXVIII Office of the Vice President of the United States (Parts 2800—
2899)
Title 33—Navigation and Navigable Waters
I Coast Guard, Department of Homeland Security (Parts 1—199)

II Corps of Engineers, Department of the Army (Parts 200—399)
IV Saint Lawrence Seaway Development Corporation, Department
of Transportation (Parts 400—499)
Title 34—Education
SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF EDU-

CATION (PARTS 1—99)
SUBTITLE B—REGULATIONS OF THE OFFICES OF THE DEPARTMENT
OF EDUCATION
I Office for Civil Rights, Department of Education (Parts 100—199)
II Office of Elementary and Secondary Education, Department of
Education (Parts 200—299)
III Office of Special Education and Rehabilitative Services, Depart-
ment of Education (Parts 300—399)
IV Office of Vocational and Adult Education, Department of Edu-
cation (Parts 400—499)
V Office of Bilingual Education and Minority Languages Affairs,
Department of Education (Parts 500—599)
220
Title 34—Education—Continued
Chap.
VI Office of Postsecondary Education, Department of Education

(Parts 600—699)
XI National Institute for Literacy (Parts 1100—1199)
SUBTITLE C—REGULATIONS RELATING TO EDUCATION
XII National Council on Disability (Parts 1200—1299)
Title 35 [Reserved]
Title 36—Parks, Forests, and Public Property
I National Park Service, Department of the Interior (Parts 1—199)

II Forest Service, Department of Agriculture (Parts 200—299)
III Corps of Engineers, Department of the Army (Parts 300—399)
IV American Battle Monuments Commission (Parts 400—499)
V Smithsonian Institution (Parts 500—599)
VII Library of Congress (Parts 700—799)
VIII Advisory Council on Historic Preservation (Parts 800—899)
IX Pennsylvania Avenue Development Corporation (Parts 900—999)
X Presidio Trust (Parts 1000—1099)
XI Architectural and Transportation Barriers Compliance Board
(Parts 1100—1199)
XII National Archives and Records Administration (Parts 1200—1299)
XV Oklahoma City National Memorial Trust (Parts 1500—1599)
XVI Morris K. Udall Scholarship and Excellence in National Environ-
mental Policy Foundation (Parts 1600—1699)
Title 37—Patents, Trademarks, and Copyrights
I United States Patent and Trademark Office, Department of

II Copyright Office, Library of Congress (Parts 200—299)
III Copyright Royalty Board, Library of Congress (Parts 301—399)
IV Assistant Secretary for Technology Policy, Department of Com-
V Under Secretary for Technology, Department of Commerce
(Parts 500—599)
Title 38—Pensions, Bonuses, and Veterans’ Relief
I Department of Veterans Affairs (Parts 0—99)
Title 39—Postal Service
I United States Postal Service (Parts 1—999)

III Postal Rate Commission (Parts 3000—3099)
221
Title 40—Protection of Environment
Chap.
I Environmental Protection Agency (Parts 1—1099)

IV Environmental Protection Agency and Department of Justice
(Parts 1400—1499)
V Council on Environmental Quality (Parts 1500—1599)
VI Chemical Safety and Hazard Investigation Board (Parts 1600—
1699)
VII Environmental Protection Agency and Department of Defense;
Uniform National Discharge Standards for Vessels of the
Armed Forces (Parts 1700—1799)
Title 41—Public Contracts and Property Management
SUBTITLE B—OTHER PROVISIONS RELATING TO PUBLIC CONTRACTS

50 Public Contracts, Department of Labor (Parts 50–1—50–999)
51 Committee for Purchase From People Who Are Blind or Severely
Disabled (Parts 51–1—51–99)
60 Office of Federal Contract Compliance Programs, Equal Employ-
ment Opportunity, Department of Labor (Parts 60–1—60–999)
61 Office of the Assistant Secretary for Veterans’ Employment and
Training Service, Department of Labor (Parts 61–1—61–999)
SUBTITLE C—FEDERAL PROPERTY MANAGEMENT REGULATIONS
SYSTEM
101 Federal Property Management Regulations (Parts 101–1—101–99)
102 Federal Management Regulation (Parts 102–1—102–299)
105 General Services Administration (Parts 105–1—105–999)
109 Department of Energy Property Management Regulations (Parts
109–1—109–99)
114 Department of the Interior (Parts 114–1—114–99)
115 Environmental Protection Agency (Parts 115–1—115–99)
128 Department of Justice (Parts 128–1—128–99)
SUBTITLE D—OTHER PROVISIONS RELATING TO PROPERTY MANAGE-
MENT [RESERVED]
SUBTITLE E—FEDERAL INFORMATION RESOURCES MANAGEMENT
REGULATIONS SYSTEM
201 Federal Information Resources Management Regulation (Parts
201–1—201–99) [Reserved]
SUBTITLE F—FEDERAL TRAVEL REGULATION SYSTEM
300 General (Parts 300–1—300–99)
301 Temporary Duty (TDY) Travel Allowances (Parts 301–1—301–99)
302 Relocation Allowances (Parts 302–1—302–99)
303 Payment of Expenses Connected with the Death of Certain Em-
ployees (Part 303–1—303–99)
304 Payment of Travel Expenses from a Non-Federal Source (Parts
304–1—304–99)
222
Title 42—Public Health
Chap.
I Public Health Service, Department of Health and Human Serv-

ices (Parts 1—199)
IV Centers for Medicare & Medicaid Services, Department of Health
and Human Services (Parts 400—499)
V Office of Inspector General-Health Care, Department of Health
Title 43—Public Lands: Interior
SUBTITLE A—OFFICE OF THE SECRETARY OF THE INTERIOR (PARTS

1—199)
SUBTITLE B—REGULATIONS RELATING TO PUBLIC LANDS
I Bureau of Reclamation, Department of the Interior (Parts 200—
499)
II Bureau of Land Management, Department of the Interior (Parts
1000—9999)
III Utah Reclamation Mitigation and Conservation Commission
(Parts 10000—10010)
Title 44—Emergency Management and Assistance
I Federal Emergency Management Agency, Department of Home-

land Security (Parts 0—399)
IV Department of Commerce and Department of Transportation
(Parts 400—499)
Title 45—Public Welfare
SUBTITLE A—DEPARTMENT OF HEALTH AND HUMAN SERVICES

(PARTS 1—199)
SUBTITLE B—REGULATIONS RELATING TO PUBLIC WELFARE
II Office of Family Assistance (Assistance Programs), Administra-
tion for Children and Families, Department of Health and
Human Services (Parts 200—299)
III Office of Child Support Enforcement (Child Support Enforce-
ment Program), Administration for Children and Families,
Department of Health and Human Services (Parts 300—399)
IV Office of Refugee Resettlement, Administration for Children and
Families, Department of Health and Human Services (Parts
400—499)
V Foreign Claims Settlement Commission of the United States,
Department of Justice (Parts 500—599)
VI National Science Foundation (Parts 600—699)
VII Commission on Civil Rights (Parts 700—799)
VIII Office of Personnel Management (Parts 800—899)
X Office of Community Services, Administration for Children and
Families, Department of Health and Human Services (Parts
1000—1099)
XI National Foundation on the Arts and the Humanities (Parts
1100—1199)
223
Title 45—Public Welfare—Continued
Chap.
XII Corporation for National and Community Service (Parts 1200—

1299)
XIII Office of Human Development Services, Department of Health
XVI Legal Services Corporation (Parts 1600—1699)
XVII National Commission on Libraries and Information Science
(Parts 1700—1799)
XVIII Harry S. Truman Scholarship Foundation (Parts 1800—1899)
XXI Commission on Fine Arts (Parts 2100—2199)
XXIII Arctic Research Commission (Part 2301)
XXIV James Madison Memorial Fellowship Foundation (Parts 2400—
2499)
XXV Corporation for National and Community Service (Parts 2500—
2599)
Title 46—Shipping
I Coast Guard, Department of Homeland Security (Parts 1—199)

II Maritime Administration, Department of Transportation (Parts
200—399)
III Coast Guard (Great Lakes Pilotage), Department of Homeland
Security (Parts 400—499)
IV Federal Maritime Commission (Parts 500—599)
Title 47—Telecommunication
I Federal Communications Commission (Parts 0—199)

II Office of Science and Technology Policy and National Security
Council (Parts 200—299)
III National Telecommunications and Information Administration,
Department of Commerce (Parts 300—399)
Title 48—Federal Acquisition Regulations System
1 Federal Acquisition Regulation (Parts 1—99)

2 Defense Acquisition Regulations System, Department of Defense
(Parts 200—299)
3 Department of Health and Human Services (Parts 300—399)
4 Department of Agriculture (Parts 400—499)
5 General Services Administration (Parts 500—599)
6 Department of State (Parts 600—699)
7 United States Agency for International Development (Parts
700—799)
8 Department of Veterans Affairs (Parts 800—899)
9 Department of Energy (Parts 900—999)
10 Department of the Treasury (Parts 1000—1099)
12 Department of Transportation (Parts 1200—1299)
13 Department of Commerce (Parts 1300—1399)
224
Title 48—Federal Acquisition Regulations System—Continued
Chap.
14 Department of the Interior (Parts 1400—1499)

15 Environmental Protection Agency (Parts 1500—1599)
16 Office of Personnel Management, Federal Employees Health
Benefits Acquisition Regulation (Parts 1600—1699)
17 Office of Personnel Management (Parts 1700—1799)
18 National Aeronautics and Space Administration (Parts 1800—
1899)
19 Broadcasting Board of Governors (Parts 1900—1999)
20 Nuclear Regulatory Commission (Parts 2000—2099)
21 Office of Personnel Management, Federal Employees’ Group Life
Insurance Federal Acquisition Regulation (Parts 2100—2199)
23 Social Security Administration (Parts 2300—2399)
24 Department of Housing and Urban Development (Parts 2400—
2499)
25 National Science Foundation (Parts 2500—2599)
28 Department of Justice (Parts 2800—2899)
29 Department of Labor (Parts 2900—2999)
30 Department of Homeland Security, Homeland Security Acquisi-
tion Regulation (HSAR) (Parts 3000—3099)
34 Department of Education Acquisition Regulation (Parts 3400—
3499)
35 [Reserved]
44 Federal Emergency Management Agency (Parts 4400—4499)
51 Department of the Army Acquisition Regulations (Parts 5100—
5199)
52 Department of the Navy Acquisition Regulations (Parts 5200—
5299)
53 Department of the Air Force Federal Acquisition Regulation
Supplement (Parts 5300—5399)
54 Defense Logistics Agency, Department of Defense (Parts 5400—
5499)
57 African Development Foundation (Parts 5700—5799)
61 General Services Administration Board of Contract Appeals
(Parts 6100—6199)
63 Department of Transportation Board of Contract Appeals (Parts
6300—6399)
99 Cost Accounting Standards Board, Office of Federal Procure-
ment Policy, Office of Management and Budget (Parts 9900—
9999)
Title 49—Transportation
SUBTITLE A—OFFICE OF THE SECRETARY OF TRANSPORTATION

(PARTS 1—99)
SUBTITLE B—OTHER REGULATIONS RELATING TO TRANSPORTATION
I Pipeline and Hazardous Materials Safety Administration, De-
partment of Transportation (Parts 100—199)
II Federal Railroad Administration, Department of Transportation
(Parts 200—299)
225
Title 49—Transportation—Continued
Chap.
III Federal Motor Carrier Safety Administration, Department of

IV Coast Guard, Department of Homeland Security (Parts 400—499)
V National Highway Traffic Safety Administration, Department of
VI Federal Transit Administration, Department of Transportation
(Parts 600—699)
VII National Railroad Passenger Corporation (AMTRAK) (Parts
700—799)
VIII National Transportation Safety Board (Parts 800—999)
X Surface Transportation Board, Department of Transportation
(Parts 1000—1399)
XI Research and Innovative Technology Administration, Depart-
ment of Transportation [Reserved]
XII Transportation Security Administration, Department of Home-
land Security (Parts 1500—1699)
Title 50—Wildlife and Fisheries
I United States Fish and Wildlife Service, Department of the Inte-

rior (Parts 1—199)
II National Marine Fisheries Service, National Oceanic and Atmos-
pheric Administration, Department of Commerce (Parts 200—
299)
III International Fishing and Related Activities (Parts 300—399)
IV Joint Regulations (United States Fish and Wildlife Service, De-
partment of the Interior and National Marine Fisheries Serv-
ice, National Oceanic and Atmospheric Administration, De-
partment of Commerce); Endangered Species Committee Reg-
ulations (Parts 400—499)
V Marine Mammal Commission (Parts 500—599)
VI Fishery Conservation and Management, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts
600—699)
226
Alphabetical List of Agencies Appearing in the CFR
(Revised as of October 1, 2007)
CFR Title, Subtitle or

Agency Chapter
Administrative Committee of the Federal Register 1, I
Advanced Research Projects Agency 32, I
Advisory Council on Historic Preservation 36, VIII
African Development Foundation 22, XV
Federal Acquisition Regulation 48, 57
Agency for International Development, United States 22, II
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agriculture Department 5, LXXIII
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Animal and Plant Health Inspection Service 7, III; 9, I
Chief Financial Officer, Office of 7, XXX
Commodity Credit Corporation 7, XIV
Cooperative State Research, Education, and Extension 7, XXXIV
Service
Economic Research Service 7, XXXVII
Energy, Office of 2, IX; 7, XXIX
Environmental Quality, Office of 7, XXXI
Farm Service Agency 7, VII, XVIII
Federal Crop Insurance Corporation 7, IV
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Forest Service 36, II
Grain Inspection, Packers and Stockyards Administration 7, VIII; 9, II
Information Resources Management, Office of 7, XXVII
Inspector General, Office of 7, XXVI
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
Natural Resources Conservation Service 7, VI
Operations, Office of 7, XXVIII
Procurement and Property Management, Office of 7, XXXII
Rural Business-Cooperative Service 7, XVIII, XLII
Rural Development Administration 7, XLII
Rural Housing Service 7, XVIII, XXXV
Rural Telephone Bank 7, XVI
Rural Utilities Service 7, XVII, XVIII, XLII
Secretary of Agriculture, Office of 7, Subtitle A
Transportation, Office of 7, XXXIII
World Agricultural Outlook Board 7, XXXVIII
Air Force Department 32, VII
Federal Acquisition Regulation Supplement 48, 53
Air Transportation Stabilization Board 14, VI
Alcohol and Tobacco Tax and Trade Bureau 27, I
Alcohol, Tobacco, Firearms, and Explosives, Bureau of 27, II
AMTRAK 49, VII
American Battle Monuments Commission 36, IV
American Indians, Office of the Special Trustee 25, VII
Animal and Plant Health Inspection Service 7, III; 9, I
Appalachian Regional Commission 5, IX
227
Agency Chapter
Architectural and Transportation Barriers Compliance Board 36, XI
Arctic Research Commission 45, XXIII
Armed Forces Retirement Home 5, XI
Army Department 32, V
Engineers, Corps of 33, II; 36, III
Benefits Review Board 20, VII
Bilingual Education and Minority Languages Affairs, Office of 34, V
Blind or Severely Disabled, Committee for Purchase From 41, 51
People Who Are
Broadcasting Board of Governors 22, V
Census Bureau 15, I
Centers for Medicare & Medicaid Services 42, IV
Central Intelligence Agency 32, XIX
Chief Financial Officer, Office of 7, XXX
Child Support Enforcement, Office of 45, III
Children and Families, Administration for 45, II, III, IV, X
Civil Rights, Commission on 45, VII
Civil Rights, Office for 34, I
Coast Guard 33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage) 46, III
Commerce Department 44, IV
Census Bureau 15, I
Economic Affairs, Under Secretary 37, V
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Emergency Management and Assistance 44, IV
Fishery Conservation and Management 50, VI
Foreign-Trade Zones Board 15, IV
Industry and Security, Bureau of 15, VII
International Trade Administration 15, III; 19, III
National Institute of Standards and Technology 15, II
National Marine Fisheries Service 50, II, IV, VI
National Oceanic and Atmospheric Administration 15, IX; 50, II, III, IV, VI
National Telecommunications and Information 15, XXIII; 47, III
Administration
National Weather Service 15, IX
Patent and Trademark Office, United States 37, I
Productivity, Technology and Innovation, Assistant 37, IV
Secretary for
Secretary of Commerce, Office of 15, Subtitle A
Technology, Under Secretary for 37, V
Technology Administration 15, XI
Technology Policy, Assistant Secretary for 37, IV
Commercial Space Transportation 14, III
Commodity Credit Corporation 7, XIV
Commodity Futures Trading Commission 5, XLI; 17, I
Community Planning and Development, Office of Assistant 24, V, VI
Secretary for
Community Services, Office of 45, X
Comptroller of the Currency 12, I
Construction Industry Collective Bargaining Commission 29, IX
Consumer Product Safety Commission 5, LXXI; 16, II
Cooperative State Research, Education, and Extension 7, XXXIV
Service
Copyright Office 37, II
Copyright Royalty Board 37, III
Corporation for National and Community Service 2, XXII; 45, XII, XXV
Cost Accounting Standards Board 48, 99
Council on Environmental Quality 40, V
Court Services and Offender Supervision Agency for the 28, VIII
District of Columbia
Customs and Border Protection Bureau 19, I
Defense Contract Audit Agency 32, I
Defense Department 5, XXVI; 32, Subtitle A;
40, VII
228
Agency Chapter
Advanced Research Projects Agency 32, I
Air Force Department 32, VII
Army Department 32, V; 33, II; 36, III, 48,
51
Defense Acquisition Regulations System 48, II
Defense Intelligence Agency 32, I
Defense Logistics Agency 32, I, XII; 48, 54
National Imagery and Mapping Agency 32, I
Navy Department 32, VI; 48, 52
Secretary of Defense, Office of 2, XI; 32, I
Defense Contract Audit Agency 32, I
Defense Intelligence Agency 32, I
Defense Logistics Agency 32, XII; 48, 54
Defense Nuclear Facilities Safety Board 10, XVII
Delaware River Basin Commission 18, III
District of Columbia, Court Services and Offender Supervision 28, VIII
Agency for the
Drug Enforcement Administration 21, II
East-West Foreign Trade Board 15, XIII
Economic Affairs, Under Secretary 37, V
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Economic Research Service 7, XXXVII
Education, Department of 5, LIII
Bilingual Education and Minority Languages Affairs, Office 34, V
of
Civil Rights, Office for 34, I
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Postsecondary Education, Office of 34, VI
Secretary of Education, Office of 34, Subtitle A
Special Education and Rehabilitative Services, Office of 34, III
Vocational and Adult Education, Office of 34, IV
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Emergency Oil and Gas Guaranteed Loan Board 13, V
Emergency Steel Guarantee Loan Board 13, IV
Employee Benefits Security Administration 29, XXV
Employees’ Compensation Appeals Board 20, IV
Employees Loyalty Board 5, V
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Endangered Species Committee 50, IV
Energy, Department of 5, XXIII; 10, II, III, X
Federal Energy Regulatory Commission 5, XXIV; 18, I
Property Management Regulations 41, 109
Energy, Office of 7, XXIX
Engraving and Printing, Bureau of 31, VI
Environmental Protection Agency 2, XV; 5, LIV; 40, I, IV,
VII
Environmental Quality, Office of 7, XXXI
Equal Employment Opportunity Commission 5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary for 24, I
Executive Office of the President 3, I
Administration, Office of 5, XV
Environmental Quality, Council on 40, V
Management and Budget, Office of 5, III, LXXVII; 14, VI;
48, 99
National Drug Control Policy, Office of 21, III
National Security Council 32, XXI; 47, 2
Presidential Documents 3
229
Agency Chapter
Science and Technology Policy, Office of 32, XXIV; 47, II
Trade Representative, Office of the United States 15, XX
Export-Import Bank of the United States 2, XXXV; 5, LII; 12, IV
Family Assistance, Office of 45, II
Farm Credit Administration 5, XXXI; 12, VI
Farm Credit System Insurance Corporation 5, XXX; 12, XIV
Farm Service Agency 7, VII, XVIII
Federal Aviation Administration 14, I
Federal Claims Collection Standards 31, IX
Federal Communications Commission 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of 41, 60
Federal Crop Insurance Corporation 7, IV
Federal Deposit Insurance Corporation 5, XXII; 12, III
Federal Election Commission 11, I
Federal Emergency Management Agency 44, I
Federal Employees Group Life Insurance Federal Acquisition 48, 21
Regulation
Federal Employees Health Benefits Acquisition Regulation 48, 16
Federal Energy Regulatory Commission 5, XXIV; 18, I
Federal Financial Institutions Examination Council 12, XI
Federal Financing Bank 12, VIII
Federal Highway Administration 23, I, II
Federal Home Loan Mortgage Corporation 1, IV
Federal Housing Enterprise Oversight Office 12, XVII
Federal Housing Finance Board 12, IX
Federal Labor Relations Authority, and General Counsel of 5, XIV; 22, XIV
the Federal Labor Relations Authority
Federal Law Enforcement Training Center 31, VII
Federal Management Regulation 41, 102
Federal Maritime Commission 46, IV
Federal Mediation and Conciliation Service 29, XII
Federal Mine Safety and Health Review Commission 5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration 49, III
Federal Prison Industries, Inc. 28, III
Federal Procurement Policy Office 48, 99
Federal Property Management Regulations 41, 101
Federal Railroad Administration 49, II
Federal Register, Administrative Committee of 1, I
Federal Register, Office of 1, II
Federal Reserve System 12, II
Board of Governors 5, LVIII
Federal Retirement Thrift Investment Board 5, VI, LXXVI
Federal Service Impasses Panel 5, XIV
Federal Trade Commission 5, XLVII; 16, I
Federal Transit Administration 49, VI
Federal Travel Regulation System 41, Subtitle F
Fine Arts, Commission on 45, XXI
Fiscal Service 31, II
Fish and Wildlife Service, United States 50, I, IV
Fishery Conservation and Management 50, VI
Food and Drug Administration 21, I
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Assets Control, Office of 31, V
Foreign Claims Settlement Commission of the United States 45, V
Foreign Service Grievance Board 22, IX
Foreign Service Impasse Disputes Panel 22, XIV
Foreign Service Labor Relations Board 22, XIV
Foreign-Trade Zones Board 15, IV
Forest Service 36, II
General Services Administration 5, LVII; 41, 105
Contract Appeals, Board of 48, 61
230
Agency Chapter
Federal Management Regulation 41, 102
Federal Property Management Regulations 41, 101
Federal Travel Regulation System 41, Subtitle F
General 41, 300
Payment From a Non-Federal Source for Travel Expenses 41, 304
Payment of Expenses Connected With the Death of Certain 41, 303
Employees
Relocation Allowances 41, 302
Temporary Duty (TDY) Travel Allowances 41, 301
Geological Survey 30, IV
Government Accountability Office 4, I
Government Ethics, Office of 5, XVI
Government National Mortgage Association 24, III
Grain Inspection, Packers and Stockyards Administration 7, VIII; 9, II
Harry S. Truman Scholarship Foundation 45, XVIII
Health and Human Services, Department of 2, III; 5, XLV; 45,
Subtitle A, 2, III
Centers for Medicare & Medicaid Services 42, IV
Child Support Enforcement, Office of 45, III
Children and Families, Administration for 45, II, III, IV, X
Community Services, Office of 45, X
Defense Acquisition Regulations System 48, 2
Family Assistance, Office of 45, II
Food and Drug Administration 21, I
Human Development Services, Office of 45, XIII
Indian Health Service 25, V; 42, I
Inspector General (Health Care), Office of 42, V
Public Health Service 42, I
Refugee Resettlement, Office of 45, IV
Homeland Security, Department of 6, I
Coast Guard 33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage) 46, III
Federal Emergency Management Agency 44, I
Immigration and Customs Enforcement Bureau 19, IV
Immigration and Naturalization 8, I
Transportation Security Administration 49, XII
Housing and Urban Development, Department of 5, LXV; 24, Subtitle B
Community Planning and Development, Office of Assistant 24, V, VI
Secretary for
Equal Opportunity, Office of Assistant Secretary for 24, I
Federal Housing Enterprise Oversight, Office of 12, XVII
Government National Mortgage Association 24, III
Housing—Federal Housing Commissioner, Office of 24, II, VIII, X, XX
Assistant Secretary for
Housing, Office of, and Multifamily Housing Assistance 24, IV
Restructuring, Office of
Inspector General, Office of 24, XII
Public and Indian Housing, Office of Assistant Secretary for 24, IX
Secretary, Office of 24, Subtitle A, VII
Housing—Federal Housing Commissioner, Office of Assistant 24, II, VIII, X, XX
Secretary for
Housing, Office of, and Multifamily Housing Assistance 24, IV
Restructuring, Office of
Human Development Services, Office of 45, XIII
Immigration and Customs Enforcement Bureau 19, IV
Immigration and Naturalization 8, I
Immigration Review, Executive Office for 8, V
Independent Counsel, Office of 28, VII
Indian Affairs, Bureau of 25, I, V
Indian Affairs, Office of the Assistant Secretary 25, VI
Indian Arts and Crafts Board 25, II
Indian Health Service 25, V; 42, I
Industry and Security, Bureau of 15, VII
Information Resources Management, Office of 7, XXVII
231
Agency Chapter
Information Security Oversight Office, National Archives and 32, XX
Records Administration
Inspector General
Agriculture Department 7, XXVI
Health and Human Services Department 42, V
Housing and Urban Development Department 24, XII
Institute of Peace, United States 22, XVII
Inter-American Foundation 5, LXIII; 22, X
Interior Department
American Indians, Office of the Special Trustee 25, VII
Endangered Species Committee 50, IV
Federal Property Management Regulations System 41, 114
Fish and Wildlife Service, United States 50, I, IV
Geological Survey 30, IV
Indian Affairs, Bureau of 25, I, V
Indian Affairs, Office of the Assistant Secretary 25, VI
Indian Arts and Crafts Board 25, II
Land Management, Bureau of 43, II
Minerals Management Service 30, II
National Indian Gaming Commission 25, III
National Park Service 36, I
Reclamation, Bureau of 43, I
Secretary of the Interior, Office of 2, XIV; 43, Subtitle A
Surface Mining and Reclamation Appeals, Board of 30, III
Surface Mining Reclamation and Enforcement, Office of 30, VII
Internal Revenue Service 26, I
International Boundary and Water Commission, United States 22, XI
and Mexico, United States Section
International Development, United States Agency for 22, II
International Development Cooperation Agency, United 22, XII
States
International Fishing and Related Activities 50, III
International Investment, Office of 31, VIII
International Joint Commission, United States and Canada 22, IV
International Organizations Employees Loyalty Board 5, V
International Trade Administration 15, III; 19, III
International Trade Commission, United States 19, II
Interstate Commerce Commission 5, XL
James Madison Memorial Fellowship Foundation 45, XXIV
Japan–United States Friendship Commission 22, XVI
Joint Board for the Enrollment of Actuaries 20, VIII
Justice Department 2, XXVII; 5, XXVIII; 28,
I, XI; 40, IV
Alcohol, Tobacco, Firearms, and Explosives, Bureau of 27, II
Drug Enforcement Administration 21, II
Federal Claims Collection Standards 31, IX
Federal Prison Industries, Inc. 28, III
Foreign Claims Settlement Commission of the United 45, V
States
Immigration Review, Executive Office for 8, V
Offices of Independent Counsel 28, VI
Prisons, Bureau of 28, V
Labor Department 5, XLII
Benefits Review Board 20, VII
Employee Benefits Security Administration 29, XXV
Employees’ Compensation Appeals Board 20, IV
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Federal Contract Compliance Programs, Office of 41, 60
Federal Procurement Regulations System 41, 50
Labor-Management Standards, Office of 29, II, IV
Mine Safety and Health Administration 30, I
232
Agency Chapter
Occupational Safety and Health Administration 29, XVII
Public Contracts 41, 50
Secretary of Labor, Office of 29, Subtitle A
Veterans’ Employment and Training Service, Office of the 41, 61; 20, IX
Wage and Hour Division 29, V
Workers’ Compensation Programs, Office of 20, I
Labor-Management Standards, Office of 29, II, IV
Land Management, Bureau of 43, II
Legal Services Corporation 45, XVI
Library of Congress 36, VII
Copyright Office 37, II
Copyright Royalty Board 37, III
Local Television Loan Guarantee Board 7, XX
Management and Budget, Office of 5, III, LXXVII; 14, VI;
48, 99
Marine Mammal Commission 50, V
Maritime Administration 46, II
Merit Systems Protection Board 5, II, LXIV
Micronesian Status Negotiations, Office for 32, XXVII
Millenium Challenge Corporation 22, XIII
Mine Safety and Health Administration 30, I
Minerals Management Service 30, II
Minority Business Development Agency 15, XIV
Miscellaneous Agencies 1, IV
Monetary Offices 31, I
Morris K. Udall Scholarship and Excellence in National 36, XVI
Environmental Policy Foundation
National Aeronautics and Space Administration 2, XVIII; 5, LIX; 14, V
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
National and Community Service, Corporation for 45, XII, XXV
National Archives and Records Administration 2, XXVI; 5, LXVI; 36,
XII
Information Security Oversight Office 32, XX
National Bureau of Standards 15, II
National Capital Planning Commission 1, IV
National Commission for Employment Policy 1, IV
National Commission on Libraries and Information Science 45, XVII
National Council on Disability 34, XII
National Counterintelligence Center 32, XVIII
National Credit Union Administration 12, VII
National Crime Prevention and Privacy Compact Council 28, IX
National Drug Control Policy, Office of 21, III
National Endowment for the Arts 2, XXXII
National Endowment for the Humanities 2, XXXIII
National Foundation on the Arts and the Humanities 45, XI
National Highway Traffic Safety Administration 23, II, III; 49, V
National Imagery and Mapping Agency 32, I
National Indian Gaming Commission 25, III
National Institute for Literacy 34, XI
National Institute of Standards and Technology 15, II
National Intelligence, Office of Director of 32, XVII
National Labor Relations Board 5, LXI; 29, I
National Marine Fisheries Service 50, II, IV, VI
National Mediation Board 29, X
National Oceanic and Atmospheric Administration 15, IX; 50, II, III, IV, VI
National Park Service 36, I
National Railroad Adjustment Board 29, III
National Railroad Passenger Corporation (AMTRAK) 49, VII
National Science Foundation 2, XXV; 5, XLIII; 45, VI
National Security Council 32, XXI
National Security Council and Office of Science and 47, II
Technology Policy
National Telecommunications and Information 15, XXIII; 47, III
Administration
233
Agency Chapter
National Transportation Safety Board 49, VIII
National Weather Service 15, IX
Natural Resources Conservation Service 7, VI
Navajo and Hopi Indian Relocation, Office of 25, IV
Navy Department 32, VI
Neighborhood Reinvestment Corporation 24, XXV
Northeast Interstate Low-Level Radioactive Waste 10, XVIII
Commission
Nuclear Regulatory Commission 5, XLVIII; 10, I
Occupational Safety and Health Administration 29, XVII
Occupational Safety and Health Review Commission 29, XX
Offices of Independent Counsel 28, VI
Oklahoma City National Memorial Trust 36, XV
Operations Office 7, XXVIII
Overseas Private Investment Corporation 5, XXXIII; 22, VII
Patent and Trademark Office, United States 37, I
Payment From a Non-Federal Source for Travel Expenses 41, 304
Payment of Expenses Connected With the Death of Certain 41, 303
Employees
Peace Corps 22, III
Pennsylvania Avenue Development Corporation 36, IX
Pension Benefit Guaranty Corporation 29, XL
Personnel Management, Office of 5, I, XXXV; 45, VIII
Federal Employees Group Life Insurance Federal 48, 21
Acquisition Regulation
Federal Employees Health Benefits Acquisition Regulation 48, 16
Pipeline and Hazardous Materials Safety Administration 49, I
Postal Regulatory Commission 5, XLVI; 39, III
Postal Service, United States 5, LX; 39, I
Postsecondary Education, Office of 34, VI
President’s Commission on White House Fellowships 1, IV
Presidential Documents 3
Presidio Trust 36, X
Prisons, Bureau of 28, V
Privacy and Civil Liberties Oversight Board 6, X
Procurement and Property Management, Office of 7, XXXII
Productivity, Technology and Innovation, Assistant 37, IV
Secretary
Public Contracts, Department of Labor 41, 50
Public and Indian Housing, Office of Assistant Secretary for 24, IX
Public Health Service 42, I
Railroad Retirement Board 20, II
Reclamation, Bureau of 43, I
Refugee Resettlement, Office of 45, IV
Regional Action Planning Commissions 13, V
Relocation Allowances 41, 302
Research and Innovative Technology Administration 49, XI
Rural Business-Cooperative Service 7, XVIII, XLII
Rural Development Administration 7, XLII
Rural Housing Service 7, XVIII, XXXV
Rural Telephone Bank 7, XVI
Rural Utilities Service 7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation 33, IV
Science and Technology Policy, Office of 32, XXIV
Science and Technology Policy, Office of, and National 47, II
Security Council
Secret Service 31, IV
Securities and Exchange Commission 17, II
Selective Service System 32, XVI
Small Business Administration 2, XXVII; 13, I
Smithsonian Institution 36, V
Social Security Administration 20, III; 48, 23
Soldiers’ and Airmen’s Home, United States 5, XI
Special Counsel, Office of 5, VIII
234
Agency Chapter
Special Education and Rehabilitative Services, Office of 34, III
State Department 2, VI; 22, I; 28, XI
Surface Mining and Reclamation Appeals, Board of 30, III
Surface Mining Reclamation and Enforcement, Office of 30, VII
Surface Transportation Board 49, X
Susquehanna River Basin Commission 18, VIII
Technology Administration 15, XI
Technology Policy, Assistant Secretary for 37, IV
Technology, Under Secretary for 37, V
Tennessee Valley Authority 5, LXIX; 18, XIII
Thrift Supervision Office, Department of the Treasury 12, V
Trade Representative, United States, Office of 15, XX
Transportation, Department of 5, L
Contract Appeals, Board of 48, 63
Emergency Management and Assistance 44, IV
Federal Aviation Administration 14, I
Federal Highway Administration 23, I, II
Federal Motor Carrier Safety Administration 49, III
Federal Railroad Administration 49, II
Federal Transit Administration 49, VI
Maritime Administration 46, II
National Highway Traffic Safety Administration 23, II, III; 49, V
Pipeline and Hazardous Materials Safety Administration 49, I
Saint Lawrence Seaway Development Corporation 33, IV
Secretary of Transportation, Office of 14, II; 49, Subtitle A
Surface Transportation Board 49, X
Transportation Statistics Bureau 49, XI
Transportation, Office of 7, XXXIII
Transportation Security Administration 49, XII
Transportation Statistics Bureau 49, XI
Travel Allowances, Temporary Duty (TDY) 41, 301
Treasury Department 5, XXI; 12, XV; 17, IV;
31, IX
Alcohol and Tobacco Tax and Trade Bureau 27, I
Community Development Financial Institutions Fund 12, XVIII
Comptroller of the Currency 12, I
Engraving and Printing, Bureau of 31, VI
Federal Law Enforcement Training Center 31, VII
Fiscal Service 31, II
Foreign Assets Control, Office of 31, V
Internal Revenue Service 26, I
International Investment, Office of 31, VIII
Monetary Offices 31, I
Secret Service 31, IV
Secretary of the Treasury, Office of 31, Subtitle A
Thrift Supervision, Office of 12, V
Truman, Harry S. Scholarship Foundation 45, XVIII
United States and Canada, International Joint Commission 22, IV
United States and Mexico, International Boundary and Water 22, XI
Commission, United States Section
Utah Reclamation Mitigation and Conservation Commission 43, III
Veterans Affairs Department 2, VIII; 38, I
Veterans’ Employment and Training Service, Office of the 41, 61; 20, IX
Vice President of the United States, Office of 32, XXVIII
Vocational and Adult Education, Office of 34, IV
Wage and Hour Division 29, V
Water Resources Council 18, VI
Workers’ Compensation Programs, Office of 20, I
World Agricultural Outlook Board 7, XXXVIII
235
List of CFR Sections Affected
All changes in this volume of the Code of Federal Regulations that
were made by documents published in the FEDERAL REGISTER since Jan-
uary 1, 2001, are enumerated in the following list. Entries indicate the
nature of the changes effected. Page numbers refer to FEDERAL REGISTER
pages. The user should consult the entries for chapters and parts as well
as sections for revisions.
For the period before January 1, 2001, see the ‘‘List of CFR Sections
Affected, 1949–1963, 1964–1972, 1973–1985, and 1986–2000’’ published in 11 sep-
arate volumes.
2001 49 CFR—Continued 68 FR
Page
49 CFR 66 FR Chapter VI—Continued
Page
655 Appendixes A through D re-
611 Regulation at 65 FR 76880 eff.
moved ...................................... 75462
date stayed in part to 4–6–01 ........ 9677 661 Authority citation revised........ 9799
653 Policy statement .................... 41955 661.13 (b) revised............................. 9799
Removed......................................42002 665.3 Regulation at 58 FR 58733
654 Policy statement .................... 41955
confirmed................................. 15674
Removed......................................42002
665.5 Regulation at 58 FR 58735
655 Policy statement .................... 41955
confirmed................................. 15674
Added ..........................................42002
660 Inseason adjustments ............. 17639 Chapter VIII
Temporary regulations ................59173 821 Revised ................................... 22625
2002 2004
49 CFR 67 FR 49 CFR 69 FR
Page Page
Title 49 Nomenclature change ...... 18803
Chapter VI
624 Added ..................................... 40104
659.5 Amended .............................. 15727 2005
Regulation at 67 FR 15727 with- 49 CFR 70 FR
drawn .......................................44091 Page
659.39 Amended............................. 15727 Chapter VI
Regulation at 67 FR 15727 with- 601 Revised ................................... 67318
drawn .......................................44091 622 Authority citation revised ...... 24470
659.41 (a) and (b) amended.............. 15727 659 Revised ................................... 22578
Regulation at 67 FR 15727 with-
drawn .......................................44091
659.45 (b) and (c) amended.............. 15727
2006
Regulation at 67 FR 15727 with- 49 CFR 71 FR
Page
drawn .......................................44091
Chapter VI
2003 655.3 (a) introductory text re-
vised; (c) added ......................... 69198
49 CFR 68 FR 655.83 (d) added ............................. 69198
Page
661 Authority citation revised ...... 14117
Chapter VI 661.3 Revised ................................ 14117
655.4 Amended .............................. 75462 661.6 Revised ................................ 14117
655.72 (d) through (g) revised ......... 75462 661.7 Appendix A amended ............ 14117
237
49 CFR (10–1–07 Edition)
49 CFR—Continued 71 FR 49 CFR—Continued 72 FR
Page Page
Chapter VI—Continued Chapter VI—Continued
661.9 (b) and (d) revised .................. 14117 624.5 Revised ................................ 15053
661.12 Revised ............................... 14117 624.9 Revised ................................ 15053
661.13 (b) introductory text, (1), 624.11 (a) introductory text and
(2) and (c) revised; (b)(1)(i) and (c) revised ................................. 15053
(ii) added .................................. 14117 624 Appendix A removed ............... 15054
661.15 (a), (b), (d) and (g) re- 661 Authority citation amend-
vised......................................... 14118 ed ............................................. 53696
661.17 Revised ............................... 14118 661 Heading revised; eff. 10–22–
661.19 Revised ............................... 14118 07.............................................. 53696
661.20 Revised ............................... 14118 661.1 Amended; eff. 10–22–07 ........... 53696
663 Authority citation revised ...... 14118
661.3 Revised; eff. 10–22–07 ............. 53696
663.37 (c) revised ........................... 14118
661.6 Amended; eff. 10–22–07 ........... 53696
661.7 (a), (c), (e), (f) and Appendix
2007 A amended; (b) revised; (c)(3)
(Regulations published from January 1, added; eff. 10–22–07..................... 53697
2007, through October 1, 2007) 661.9 (a) amended; eff. 10–22-07 ....... 53697
661.11 (s) removed; (t)(14) through
49 CFR 72 FR
(22), (u)(18) through (30), (v)(28),
Page
(29), (30) and Appendix D added;
Chapter VI
Appendices B and C amended;
601.40—601.47 (Subpart D)
eff. 10–22–07 ............................... 53697
Added .......................................... 912
Appendix D corrected; eff. 10–22–
613.100 (Subpart A) Revised ............ 7285
07 ..............................................55103
613.200 (Subpart B) Revised ............ 7285
624 Authority citation and head- 661.12 Amended; eff. 10–22–07.......... 53698
ing revised ................................ 15052 661.18 Introductory text amend-
624.1 Revised ................................ 15052 ed; eff. 10–22–07 .......................... 53698
624.3 (a) and (c)(3) through (6) re- Chapter VIII
vised......................................... 15053 801 Revised ................................... 18915
Æ
238

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49

Parts 600 to 999

Containing a codification of documents

A Special Edition of the Federal Register

Legal Status and Use of Seals and Logos

Use of ISBN Prefix

U.S. GOVERNMENT PRINTING OFFICE

U.S. Superintendent of Documents • Washington, DC 20402–0001

Subtitle B—Other Regulations Relating to Transportation (Contin-

Chapter VI—Federal Transit Administration, Department of

Chapter VII—National Railroad Passenger Corporation (AM-

Chapter VIII—National Transportation Safety Board .................... 117

Table of CFR Titles and Chapters ....................................................... 209

Alphabetical List of Agencies Appearing in the CFR ......................... 227

List of CFR Sections Affected ............................................................. 237

To cite the regulations in

to display an OMB control number with their information collection request.

293-6498 (toll-free). E-mail, gpoaccess@gpo.gov.

Title 49—TRANSPORTATION is composed of nine volumes. The parts in these vol-

Redesignation tables for chapter III—Federal Motor Carrier Safety Administra-

SUBTITLE B—Other Regulations Relating to Transportation

CHAPTER VI—Federal Transit Administration, Department

Region/States Office/address Telephone No.

§ 601.3 General responsibilities. tor General and the Government Ac-

to as the New Starts program. In addi- U.S.C. 5314).

§ 601.4 Responsibilities of the Adminis- (3) Comments received in response to

(2) Notices of proposed rulemaking; § 601.36 of this subpart may be followed.

§ 601.23 Initiation of rulemaking. is granted to all persons, and it is pub-

of the Federal Transit Administration § 601.33 Processing of petitions.

tion. wise provides, the filing of a petition

verse comment is received by FTA ministrator for temporary relief from

consideration by FTA. the expiration of the three business

days and review any comments sub- 604.19 Appeals.

604.17 Remedies. Counsel of FTA.

and other legal prerequisites, to pro- Date

tions in § 604.9(b) applies. quested charter trip is consistent with

government entity or a private, non- organization (MPO), or which is part of

prove that it is willing and able; 1994]

§ 604.13 Reviewing evidence submitted in violation of the requirements of this

Program title Agency Subpart B—School Bus Agreements

viding mass transportation services by appropriate local, State and Federal

law to provide regularly scheduled (1) In the case of a grant involving

in a newspaper of general circulation in must be submitted by the applicant to

the Federal-Aid Highway Act of 1973 (49 has taken place.

§ 605.31 Notification to the respondent. § 605.35 Judicial review.

and would otherwise be idle.

clusively’’ in the operation of charter bus handicapped persons.

§ 609.3 Definitions. hours for transportation utilizing or

handicapped persons during non-peak not permitted under the Act.

empt are nonetheless strongly encour- reliability, increase the convenience of

project is finalized, estimates of project sponsor(s).

met. funding purposes.

complete construction of the project,

by an acceptable degree of local finan- section 5309(o)(1), and as required for

cently-completed or simultaneously under- part C, shall be followed in complying

with the requirements of this subpart. transportation facilities and equip-

§ 613.300 Coordination of Federal and § 622.101 Cross-reference to proce-

PART 614—TRANSPORTATION Subpart B [Reserved]

monitoring for highways and public modification, and alternative designs;

(2) Materials and techniques used in (1) A designated recipient (designated

(a) An eligible applicant is: sions technology buses that exhibit

equivalent or superior emissions reduc- (4) The applicant’s ability to imple-

fleet management plan; enue).