examination of the witness by the Party to the Investigation.

(b) Materiality, relevancy and competency of witnesses' testimony, exhibits or physical evidence will not be the subject of objections by a Party to the Investigation or any other person, but such matters will be controlled by rulings of the officer presiding on his own motion. If the examination of a witness by a Party to the Investigation is interrupted by a ruling of the officer presiding, opportunity will be given to show materiality, relevancy or competency of the testimony or evidence sought to be elicited from the witness.

Any person may submit his recommendations as to the proper conclusions to be drawn from the testimony and exhibits submitted at the hearing. Fifteen (15) copies of such recommendations shall be submitted within 30 days after the close of the hearing, and shall be made a part of the docket. The Director, Bureau of Safety, in response to a request from a person intending to submit recommendations or upon his own initiative, may extend the 30-day period for submitting recommendations if he deems it necessary in the public interest. [PR-94, 30 F.R. 8473, July 2, 1965] § 303.21 Stenographic transcript.

A verbatim report of the hearing shall be taken. Copies of the transcript may be obtained by any interested person from the official reporter upon payment of the fees fixed therefor.

Any person may make written objection to the public disclosure of information contained in any report or document filed pursuant to this part or the provisions of the Federal Aviation Act of 1958, or of information obtained by the Board pursuant to the provisions of this part or the act, stating the grounds for such objection. Whenever such objection is made, the Board shall order such information withheld from public disclosure when, in its judgment, a disclosure of such information would adversely affect the interests of such person and is not required in the interest of the public.

305.11

Initiation of investigation.

Appearance of witnesses.

Issuance of investigation subpenas. [Reserved]

Rights of witnesses.

305.10 Nonpublic character of proceedings. Procedures after investigation. 305.12 Motions to quash or modify an investigation subpena.

AUTHORITY: The provisions of this Part 305 issued under sec. 204, 72 Stat 743; 49 U.S.C. 1324. Interpret or apply secs. 202 (a), 411, 415, 1001, 1002(b), 1004, 1007, 72 Stat. 741, 769, 770, 788, 792, 796; 49 U.S.C. 1322, 1381,

The provisions of this part shall govern informal nonpublic investigations, as distinguished from formal investigations and adjudicatory proceedings, undertaken by the Bureau of Enforcement with a view to obtaining information from any person. While the Board seeks and encourages voluntary cooperation and believes that it is in the best interest of all parties concerned, it will utilize the procedures provided by this part to compel the disclosure of information by any person where the Board wishes to determine whether such person, or any other person, has been or is violating any provisions of Title IV or sections 101(3), 1002, 1003, or 1108(b) of the Act, or any rule, regulation, order, certificate, permit, or letter of registration issued pursuant thereto by the Board and when the information appears to be relevant to the matter under investigation. This part shall not apply to employees or records of other agencies of the United States Government, the District of Columbia, or the several States and their political subdivisions.

For the purpose of, and as used in this part, the term "investigation" means a non-adjudicatory, informal nonpublic investigation for the purpose of determining whether formal enforcement action should be instituted with respect to alleged violations of law. §§ 305.3-305.4 [Reserved]

§ 305.5 Initiation of investigation.

An investigation may be initiated by order of the Board. Each such order shall designate a staff attorney of the Bureau of Enforcement as Investigation Attorney for the purpose of conducting such investigation pursuant to the provisions of this part. Investigation Attorneys and hearing examiners are hereby authorized to exercise and perform their duties and functions under this part in accordance with the provisions of the Act and the rules and regulations of the Board.

(a) Upon request of the Director, Bureau of Enforcement, any Member of the Board, when duly designated by the Board for such purpose, may issue a subpena directing the person named therein to appear before a designated hearing examiner at a designated time and place to testify or to produce documentary evidence relating to any matter under investigation, or both. Each such subpena shall briefly advise the person required to testify or submit documentary evidence of the purpose and scope of the investigation, and a copy of the order initiating the investigation shall be attached to the subpena.

(b) Witnesses subpenaed to appear shall be paid the fees and mileage prescribed in § 302.21 of the Rules of Practice (14 CFR 302.21). Service of such subpenas shall be made in accordance with the provisions of § 302.8 of the Rules of Practice (14 CFR 302.8).

Any person required to testify or to submit documentary evidence shall be entitled to procure, on payment of lawfully prescribed costs, a copy of any document produced by such person and of his own testimony as stenographically reported. Any person compelled to testify or to produce documentary evidence may be accompanied, represented, and advised by counsel. § 305.10

Nonpublic character of pro

ceedings. Investigations shall be attended only by the witnesses and their counsel, the hearing examiner, the Investigation Attorney, other Board personnel concerned with the conduct of the proceeding and the official stenographer. All orders initiating investigations, motions to

quash or modify investigation subpenas, orders disposing of such motions, documents, and transcripts of testimony shall be part of the record in the investigation. The record of such proceedings shall constitute internal Board documents which shall not be available to the general public. The use of such records in Board proceedings subject to Part 302 of the Rules of Practice shall be governed by §§ 302.19(g) and 302.39 and by the law of evidence applicable to Board proceedings.

§ 305.11

Procedures after investigation.

Upon completion of the investigation, where the Director, Bureau of Enforcement, determines that no corrective action is warranted, the investigation will be closed, and any documentary evidence obtained in the investigation will be returned to the persons who produced it. Where remedial action is indicated by the investigation, the Director will proceed pursuant to Subpart B of Part 302 of the Rules of Practice or will take such other action as may be appropriate. § 305.12 Motions to quash or modify an investigation subpena.

Any person upon whom an investigation subpena is served may within seven (7) days after such service or at any time prior to the return date thereof, whichever is earlier, file with the Board a motion to quash or modify such subpena. Such motions shall be made in writing in conformity with §§ 302.3 and 302.4 of the Rules of Practice; shall state with particularity the grounds therefor and the relief sought; shall be accompanied by the evidence relied upon and all such factual matter shall be verified in accordance with the provisions of § 302.202 of the Rules of Practice. Written memoranda or briefs may be filed with the motions, stating the points and authorities relied upon. No oral argument will be heard on such motions, unless the Board directs otherwise. The Board will quash or modify a subpena when it believes that the evidence whose production is required is not reasonably relevant to the matter under investigation, or that the demand made does not describe with sufficient particularity the information sought, or that the subpena is unlawful or unduly burdensome. The filing of a motion to quash or modify an investigation subpena shall stay the return date of such subpena

311.2

311.3

Finding as to the public interest. Release of information concerning accidents.

311.4 Disclosure of information by testimony in suits or actions for damages arising out of aircraft accidents.

311.5 Disclosure of information by testimony in state and local investigations.

311.6 Release and disclosure of information pertaining to aircraft incidents not classified as accidents.

AUTHORITY: The provisions of this Part 311 issued under sec. 204 (a), 72 Stat. 743; 49 U.S.C. 1324. Interpret or apply secs. 102, 202 (a), 701, 72 Stat. 740, 742, 781; 49 U.S.C. 1302, 1322, 1441.

SOURCE: The provisions of this Part 311 contained in PR-96, 30 F.R. 14920, Dec. 2, 1965, unless otherwise noted.

purpose except as provided in this part. Making such reports or underlying papers public otherwise than as provided in this part is hereby found to be contrary to the public interest. Employees are hereby prohibited from giving out any such reports, papers or copies thereof to private parties or to local officers; or from testifying in any suit or action for damages as to information in such reports or papers; or producing such reports, papers, or copies thereof in any suit or action for damages (whether in answer to subpoenas duces tecum or otherwise), except as provided in this part.

§ 311.3 Release of information concerning accidents.

Information secured by the Board concerning accidents involving aircraft may be released only as follows:

(a) Regional field offices. Supervisory Investigators of field offices shall, upon request, release the following information concerning any accident at any time during or after the investigation of the accident:

(1) Place and date of the accident;

(2) Mak, model, identification mark, and registered owner or operator of the aircraft involved;

(3) Names and addresses of the crew and other occupants of the aircraft or persons injured in the accident, and

(4) Medical information pertaining to the nature of any fatalities resulting from the accident and to the condition of injured persons when that information is factually established by physicians or hospitals. Disclosure of this information must be qualified by the statement that such information is based on reports of physicians or hospitals.

(b) The Washington office. The Director of the Bureau of Safety or such person in the Washington office as he shall designate shall, upon request, release the information described in paragraph (a) of this section. In addition, the Director or his designee shall, upon request:

(1) Release the names of witnesses and their addresses;

(2) Make replies as to facts in answer to specific inquiries, either verbal or written, concerning aircraft accidents; and

(3) Make available for inspection that portion of the file which contains factual data pertinent to the accident, but shall not make available any portion of the file

which contains any opinion, conclusion, evaluation, or recommendation of any employee of the Board or any employee of the Federal Aviation Agency who has participated in the accident investigation; and furnish copies of only those documents in the accident file which are available for inspection under this subparagraph, provided that the expense of making such copies is borne by the recipient.

(c) Nothing in this section is to be interpreted as requiring Board employees to secure information for release where such information is not presently in the Board's files.2

§ 311.4 Disclosure of information by testimony in suits or actions for damages arising out of aircraft accidents. Section 701(e) of the Federal Aviation Act (49 U.S.C. 1441(e)) precludes the use of the Board's reports in any suit or action for damages arising out of an accident. The purpose of section 701(e) would be defeated if expert opinion testimony of Board employees, and their evaluations, conclusions and recommendations which are reflected in the ultimate views of the Board expressed in its report concerning the cause of the accident and the prevention of future accidents, are admitted in evidence or used in any way in private litigation arising out of an aircraft accident. For the same reason, the use of employees' factual reports in private litigation arising out of accidents would defeat the purpose of section 701(e). Furthermore, the use of Board employees as experts to give opinion testimony in court would impose a serious administrative burden on the Board's investigative staff. Accordingly, no Board employee or former Board employee shall make public by testimony in any suit or action arising out of an aircraft accident information obtained by him in the performance of his official duties, except in accordance with the following provisions:

(a) Testimony of employees and former employees. Employees may serve as witnesses for the purpose of testifying to the facts observed by them in the course of accident investigations in those suits or actions for damages arising out

2 The Board's rules governing the conduct of aircraft accident investigations are contained in Part 320 of the Board's regulations (14 CFR Part 320).

of aircraft accidents in which an appropriate showing has been made that the facts desired to be adduced are not reasonably available to the party seeking such evidence by any other method, including the use of discovery procedures against the opposing party. Employees and former employees shall testify only as to facts actually observed by them in the course of accident investigations and shall respectfully decline to give opinion evidence as expert witnesses, their evaluations and conclusions, or testify with respect to recommendations resulting from accident investigations on grounds that section 701(e) and this part prohibit their giving such testimony. Litigants are expected to obtain their expert witnesses from other

sources.

the

(b) Use of reports. An employee or former employee may use his factual report solely to refresh his memory, and shall decline to read any portion thereof into the record or refer to it or comment with respect to its contents.

(c) Testimony by deposition and written interrogatories. Testimony of employees will be made available for use in suits or actions for damages arising out of accidents through depositions or written interrogatories. Normally depositions will be taken and interrogatories will be answered at the Board's office to which the employee is assigned at a time arranged with the employee reasonably fixed so as to avoid substantial interference with the performance of the duties of the employee concerned. Employees will not be permitted to appear and testify in court except in the most unusual circumstances for good cause shown. Mere failure to make a timely request for a deposition will not be regarded as an unusual circumstance.

(d) Request for testimony of employees. (1) A request for testimony of a Board employee relating to an aircraft accident by deposition, interrogatories, or appearance in court shall be addressed to the Associate General Counsel, Rules and Rates Division, who may approve or deny the request. Such request shall set forth the title of the case and the court and the reasons for desiring the testimony and shall limit the testimony sought to that available under the provisions of paragraph (a) of this section. The Associate General Counsel shall attach to his approval such reasonable

conditions as he may deem appropriate in order that the testimony shall be limited to factual matters as provided in paragraph (a) of this section, shall not interfere with the performance of the duties of the witnesses as set forth in paragraph (c) of this section, and shall otherwise conform to the policies of this part. Upon completion of a deposition a copy of the transcript of testimony will be furnished at the expense of the party requesting the deposition to the Associate General Counsel, Rules and Rates Division, for the Board's files.

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

(e) Request for testimony of former employees. It is not necessary to request approval for testimony of a former Board employee.

(f) Procedure in the event of a subpoena. If an employee has received a subpoena to appear and testify, a request for approval of his deposition testimony shall not be approved until the subpoena has been withdrawn. If any employee receives a subpoena to produce accident reports or underlying papers or to give testimony at a time and place specified therein as to accident information, the employee shall immediately notify the Director, Bureau of Safety. He shall give 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 date on which he 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 whether or not the evidence is available elsewhere. The Director will immediately, upon receipt of notice that an employee has been subpoenaed, inform the General Counsel. The General Counsel will either (1) make arrangements with the court to have the employee excused from testifying or (2) give the employee permission to testify. Unless one of these actions is taken, the employee shall appear in response to the subpoena and respectfully decline to testify or to produce the records called for, on the grounds that this part prohibits such conduct. In carrying out the provisions of this paragraph, the General Counsel shall be guided by the policies set forth in this part.