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Counsel, who may approve or deny the request. Such request shall set forth the title of the case, the court, the type of accident (aviation, railroad, etc.), the date and place of the accident, the reasons for desiring the testimony, and a showing that the information desired is not reasonably available from other sources.

(b) The General Counsel shall attach to his approval such reasonable conditions as he may deem appropriate in order that the testimony will be limited to the matters delineated in $ 835.3, will not interfere with the performance of the duties of the employees as set forth in § 835.5, and will otherwise conform to the policies of this part.

(c) A subpoena shall not be served upon a Board employee in connection with the taking of his deposition.

beyond the scope of their investigation, or to give opinion testimony concerning the cause of the accident. 8 835.4 Use of reports.

(a) A Board employee may use a copy of his factual accident report as a testimonial aid, and may refer to that report during his testimony or use it to refresh his memory.

(b) Consistent with section 701(e) of the FA Act and section 304(c) of the Safety Act, a Board employee may not use the Board's accident report for any purpose during his testimony. § 835.5 Manner in which testimony is

given. (a) Testimony of Board employees may be made available for use in actions or suits for damages arising out of accidents through depositions or written interrogatories. Board employees are not permitted to appear and testify in court in such actions.

(b) Normally, depositions will be taken and interrogatories answered at the Board's office to which the employee is assigned, and at a time arranged with the employee reasonably fixed to avoid substantial interference with the performance of his duties.

(c) Board employees are authorized to testify only once in connection with any investigation they have made of an accident. Consequently, when more than one lawsuit arises as a result of an accident, it shall be the duty of counsel seeking the employee's deposition to ascertain the ntity of all parties to the multiple lawsuits and their counsel, and to advise them of the fact that a deposition has been granted, so that all interested parties may be afforded the opportunity to participate therein.

(d) Upon completion of the deposition of a Board employee, a copy of the transcript of the testimony will be furnished, at the expense of the party requesting the deposition, to the Board's General Counsel for the Board's files.

8 835.7 Testimony of former Board em

ployees. It is not necessary to request Board approval for testimony of a former Board employee. However, the scope of testimony of former Board employees is limited to the matters delineated in $ 835.3, and use of reports as prescribed by $ 835.4.

8 835.8 Procedure in the event of a sub

poena. (a) If a Board employee has received a subpoena to appear and testify, a request for his deposition shall not be approved until the subpoena has been withdrawn.

(b) Upon receipt of a subpoena, the employee shall immediately notify the General Counsel and provide the data identifying the accident; the title of the case, the name of the judge, if available, and the title and address of the court; the type of accident (aviation, railroad, etc.); the date on which the employee is directed to appear; the name, address, and telephone number, if available, of the attorney representing the party who caused the issuance of the subpoena; the scope of the testimony, if known; and a statement as to whether a prior deposition on the same accident has been given.

8 835.6 Request for testimony.

(a) A request for testimony of a Board employee relating to an accident by deposition or interrogatories shall be addressed to the General

(c) The General Counsel shall determine the course of action to be taken and will so advise the employee.

8 835.9 Testimony in State or local investi

gations. Board employees may testify at a coroner's inquest, grand jury, or criminal proceeding conducted by a State or local government. Testimony shall be limited to the matters delineated in $ 835.3.

jointly or in common by two or more railroads subject to this part, or operation of a train, locomotive, or car by one railroad over the track of another railroad.

(d) “Fatality” means the death of a person either at the time an accident occurs or within 24 hours thereafter.

PART 840-RULES PERTAINING TO

NOTIFICATION OF RAILROAD ACCIDENTS

Sec. 840.1 Applicability. 840.2 Definitions. 840.3 Notification of railroad accidents. 840.4 Information to be given in notifica

tion. AUTHORITY: Sec. 304(a)(1)(c) of the Independent Safety Board Act of 1974 (49 U.S.C. 1903).

SOURCE: 41 FR 13925, Apr. 1, 1976, unless otherwise noted.

8 840.3 Notification of railroad accidents.

(a) A railroad shall notify the Board in the manner prescribed by paragraph (c) of this section at the earliest practical time but not later than six hours after the occurrence of an accident which results in:

(1) A fatality; or

(2) Damages, based on a preliminary gross estimate, of $150,000 or more of the repair or current replacement cost to railroad and nonrailroad property; or

(3) Involvement of a passenger train.

(b) Accidents involving joint oper ations must be reported by the railroad that controls the track and di. rects the movement of trains where the accident has occurred.

(c) Each notification required by paragraph (a) of this section shall be made by (toll-free) telephone to the Board at Area Code 800-424-0201.

NOTE: The Federal Railroad Administration authorizes of this telephone number to comply with its requirements for immediate reporting of certain railroad acci. dents/incidents under 49 CFR 225.9. (41 FR 13925, Apr. 1, 1976, as amended at 45 FR 54056, Aug. 14, 1980)

8 840.1 Applicability.

This part contains the notification requirements for certain railroad accidents which are to be investigated by the National Transportation Safety Board (Board) under the authority of section 304(a)(1)(C) of the Independent Safety Board Act of 1974 (49 U.S.C. 1903).

use

8 840.2 Definitions.

As used in this part, the following words or phrases are defined as follows:

(a) “Railroad” means any system of surface transportation of persons or property over rails. It includes, but is not limited to, line-haul freight and passenger-carrying railroads, and rapid transit, commuter, scenic, subway, and elevated railways.

(b) “Accident” means any collision, derailment, or explosion involving railroad trains, locomotives, and cars; or any other loss-causing event involving the operation of such railroad equipment that results in a fatality or the emergency evacuation of persons.

(c) “Joint operations” means rail operations conducted on a track used

8 840.4 Information to be given in notifi.

cation. The notice required by $ 840.3 shall include the following information:

(a) Name and title of person reporting.

(b) Name of railroad.

(c) Location of accident (relate to nearest city).

(d) Time and date of accident.
(e) Description of accident.
(f) Casualties-
(1) Fatalities.
(2) Injuries.
(g) Property damage (estimate).

(h) Name and telephone number of person from whom additional information may be obtained.

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Subpart D--Public Record 845.50 Pubic docket. 845.51 Investigation to remain open.

AUTHORITY: Sec. 304(b) of the Independent Safety Board Act of 1974, Pub. L. 93633, 88 Stat. 2169 (49 U.S.C. 1903(b)).

SOURCE: 44 FR 34419, June 14, 1979, unless otherwise noted.

8 845.10 Determination to hold hearing.

The Board may order a public hearing as part of an accident investigation whenever such hearing is deemed necessary in the public interest: Provided, that if a quorum of the Board is not immediately available in the event of a catastrophic accident, the determination to hold a public hearing may be made by the Chairman of the Board.

§ 845.1 Applicability.

Unless otherwise specifically ordered by the National Transportation Safety Board (Board), the provisions of this part shall govern all transportation accident investigation hearings conducted under the authority of section 304(b) of the Independent Safety Board Act of 1974 (49 U.S.C. 1903(b)) and accident reports issued by the Board.

8 845.11 Board of inquiry.

The board of inquiry shall consist of a member of the Board who shall be chairman of the board of inquiry, a hearing officer, the Director of the Bureau of Accident Investigation, or his designee, and, where appropriate, the General Counsel or his designee. Assignment of a member to serve as the chairman of each board of inquiry shall be determined by the Board. The board of inquiry shall examine witnesses and secure, in the form of a public record, all known facts pertaining to the accident or incident and surrounding circumstances and conditions from which cause or probable cause may be determined and recommenda

8 845.2 Nature of hearing.

Transportation accident hearings are convened to assist the Board in determining cause or probable cause of an accident, in reporting the facts,

80-175 0–82_-40

tions for corrective action may be formulated.

(c) To issue subpenas requiring the attendance and testimony of witnesses and production of documents.

8 845.12 Notice of hearing.

The chairman of the board of inquiry shall designate a time and place for the hearing which meets the needs of the Board. Notice to all known interested persons shall be given.

8 845.22 Technical panel.

The Director, Bureau of Accident Investigation, shall designate members of the Board's technical staff to participate in the hearing and initially develop the testimony of witnesses.

8 845.13 Designation of parties.

(a) The chairman of the board of inquiry shall designate as parties to the hearing those persons, agencies, companies, and associations whose participation in the hearing is deemed necessary in the public interest and whose special knowledge will contribute to the development of pertinent evidence.

(b) No party shall be represented by any person who also represents claimants or insurers. Failure to comply with this provision shall result in loss of status as a party.

Subpart B-Conduct of Hearing

8 845.20 Powers of chairman of board of

inquiry. The chairman of the board of inquiry, or his designee, shall have the following powers:

(a) To designate parties to the hearing and revoke such designations;

(b) To open, continue, or adjourn the hearing;

(c) To determine the admissibility of and to receive evidence and to regulate the course of the hearing;

(d) To dispose of procedural requests or similar matters; and

(e) To take any other action necessary or incident to the orderly conduct of the hearing.

8 845.23 Prehearing conference.

(a) Except as provided in paragraph (d) of this section for expedited hearings, the chairman of the board of inquiry shall hold a prehearing conference with the parties to the hearing at a convenient time and place prior to the hearing. At such prehearing conference, the parties shall be advised of the witnesses to be called at the hearing, the areas in which they will be examined, and the exhibits which will be offered in evidence.

(b) Parties shall submit at the prehearing conference copies of any additional documentary exhibits they desire to offer. (Copies of all exhibits proposed for admission by the board of inquiry and the parties shall be furnished to the board of inquiry and to all parties, insofar as available at that time.)

(c) A party who, at the time of the prehearing conference, fails to advise the chairman of the board of inquiry of additional exhibits he intends to submit, or additional witnesses he desires to examine, shall be precluded from introducing such evidence unless the chairman of the board of inquiry determines for good cause shown that such evidence should be admitted.

(d) Expedited hearings. When time permits, the chairman of the board of inquiry may hold a prehearing conference. In the event that an expedited hearing is held, the requirements in paragraphs (b) and (c) of this section concerning the identification of witnesses, exhibits or other evidence may be waived by the chairman of the board of inquiry.

(44 FR 34420, June 14, 1979; 44 FR 39181, July 5, 1979)

8 845.21 Hearing officer.

The hearing officer, upon designation by the Chairman of the Board, shall have the following powers:

(a) To give notice concerning the time and place of hearing;

(b) To administer oaths and affirmations to witnesses; and

8 845.24 Right of representation.

Any person who appears to testify at a public hearing shall be accorded the right to be accompanied, represented,

or advised by counsel or by any other duly qualified representative.

8 845.29 Payment of witnesses.

Any witness subpenaed to attend the hearing under this part shall be paid such fees for his travel and attendance as shall be certified by the hearing officer.

Subpart C-Board Reports

8 845.25 Examination of witnesses.

(a) Witnesses shall be initially examined by the board of inquiry or its technical panel. Following such examination, parties to the hearing shall be given the opportunity to examine such witnesses.

(b) Materiality, relevancy, and competency of witness testimony, exhibits, or physical evidence shall not be the subject of objections in the legal sense by a party to the hearing or any other person. Such matters shall be controlled by rulings of the chairman of the board of inquiry on his own motion. If the examination of a witness by a party is interrupted by a ruling of the chairman of the board of inquiry, opportunity shall be given to show materiality, relevancy, or competency of the testimony or evidence sought to be elicited from the witness.

8 845.40 Accident report.

(a) The Board will issue a detailed narrative accident report in connection with the investigation into those accidents which the Board determines to warrant such a report. The report will set forth the facts, conditions and circumstances relating to the accident and the probable cause thereof, along with any appropriate recommendations formulated on the basis of the investigation.

(b) The probable cause and facts, conditions, and circumstances of all other accidents will be reported in a manner and form prescribed by the Board.

8 845.26 Evidence.

The chairman of the board of inquiry shall receive all testimony and evidence which may be of aid in determining the cause of accident. He may exclude any testimony or exhibits which are not pertinent to the investigation or are merely cumulative.

8 845.27 Recommendations by parties.

Any party may submit proposed conclusions and recommendations to be drawn from the testimony and exhibits submitted at the hearing. Such recommendations shall be submitted within the time specified by the presiding officer at the close of the hearing, and shall be made a part of the public file. Parties to the hearing shall serve copies of such recommendations on all other parties to the hearing.

8 845.41 Requests for reconsideration or

modification. (a) Requests for reconsideration or modification of the Board's findings and determination of probable cause by parties to an investigation or hearing or other persons having a direct interest in the accident investigation will be entertained only if based on the discovery of new evidence or on a showing that the Board's findings, as to the facts, conditions, and circumstances of the accident, are erroneous. Such requests shall be in writing. Requests which are repetitious of recommendations made pursuant to § 845.27, or of positions previously advanced, and requests by parties to the hearing who fail to submit recommendations pursuant to $ 845.27 will not be entertained. Any such requests based on the discovery of new matter shall: identify the new matter; shall contain affidavits of prospective witnesses, authenticated documents, or both, or an explanation of why such substantiation is unavailable; and shall state why such new matter was not available prior to Board's adoption of its findings. Requests based on the claim of erroneous

8 845.28 Stenographic transcript.

A verbatim report of the hearing shall be taken. Copies of the transcript may be obtained by any interested person from the Board or from the court reporting firm preparing the transcript upon payment of the fees fixed therefor. (See Part 801, Appendix-Fee Schedule.)

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