in evidence or additional witnesses lesires to examine, as required by 1.16(c), will be precluded from introng such testimony at the hearing unthe presiding officer determines for I cause shown such evidence should dmitted.

94, 30 F.R. 8473, July 2, 1965]

1.18 Examination of witnesses.

) Witnesses will be examined by the nical Staff. Following such examon, the Parties to the Investigation have indicated at a prehearing erence their desire to examine such esses will be given an opportunity o so. If a Party to the Investigation has not indicated an intention to nine a witness desires to do so, he submit a request to the officer preg along with his justification as to such examination is now deemed ssary. The officer presiding will I determine whether to permit the nination of the witness by the Party he Investigation.

» Materiality, relevancy and comncy of witnesses' testimony, exts or physical evidence will not be subject of objections by a Party to Investigation or any other person, such matters will be controlled by ngs of the officer presiding on his own ion. If the examination of a witness

Party to the Investigation is interted by a ruling of the officer presiding, ortunity will be given to show materiy, relevancy or competency of the imony or evidence sought to be ted from the witness.

31.19 Evidence.

he officer presiding shall receive all imony and evidence which might be aid in determining the cause of the dent. He may exclude any testiy or exhibits which are not pertit to the investigation or which are ely cumulative, as well as testimony ch a party is precluded from introing by § 431.17 unless he determines t for good cause shown such testimy should be admitted.

94, 30 FR. 8473, July 2, 1965] 31.20 Recommendations by interested persons.

ny person may submit his recomndations as to the proper conclusions De drawn from the testimony and exits submitted at the hearing. Fifteen copies of such recommendations ll be submitted within 30 days after

the close of the hearing, and shall be made a part of the docket. The Director, Bureau of Aviation 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]

§ 431.21 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.

The docket shall include the transcript, exhibits, briefs, and all other information concerning the accident which the Board has not ordered to be withheld from the public. A copy of the docket shall be made available to any person for review at the Washington office of the Board. Photostatic copies of exhibits may be obtained from the Chief, Docket Section, upon paying the cost of such copies.

§ 431.23 Investigation to remain open.

Accident investigations are never officially closed but are kept open for the submission of new and pertinent evidence by any interested person. If the Director, Bureau of Aviation Safety, finds that such evidence is relevant and probative, it shall be made a part of the docket, and, where appropriate, parties will be given an opportunity to examine such evidence and to comment thereon unless the Board orders it to be withheld from public disclosure.

§ 431.24 Request for withholding of information.

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.

This part prescribes the policies and procedures of the Board with respect to the release of information coming into the possession of the Board or its staff in the course of conducting an investigation of aircraft accidents or in connection with accident prevention activities which can be disclosed to the public under Part 401 of this Chapter (Board's organization regulations). This part does not apply to aircraft accident investigations conducted by officials and employees of a foreign country. This part also establishes procedures for the disclosure of aircraft accident information by testimony of Board employees in suits or actions for damages arising out of aircraft accidents and in State or local investigations and criminal proceedings.1

§ 435.2 Finding as to the public interest.

All accident reports and underlying papers in the Bureau of Aviation Safety are in the custody of the Executive Director of the Board, subject to access by employees of the Board for purposes relating to their official duties. Employees have no control of such reports

1 The procedures of the Federal Aviation Administration for the disclosure of information with respect to the testimony of its employees as witnesses in legal proceedings and the release or disclosure of FAA files and documents are contained in Part 185 of the Federal Aviation Administration's regulations (14 CFR Part 185).

and papers, and no discretion wit gard to permitting the use of the any other purpose except as provid this part.

§ 435.3

Release of information co ing accidents

(a) Requests for preliminary or factual information in the Board's session, which the Board can make lic in accordance with Part 401( organization regulations, should b rected to the Board's Office of F Affairs, the Executive Director of Board, the Director of the Bo Bureau of Aviation Safety, the in gator in charge of any Board acc investigation, the Supervisory In gators in charge of the Board's Reg Field Offices, or such other perso the Director of the Board's Burea Aviation Safety may designate.

(b) Upon receipt of such writte oral requests, the information wi made available to the applicant: vided, That the furnishing of the ten or oral information will not di the course of the accident investig or otherwise interfere with the B or its employees in the performan the accident investigation and acci prevention functions. Applicants advised that in many instances the taining of certain factual inform requires the expenditure of conside time and effort and that the informa they request, therefore, may not readily available at the time the inc is received by the Board. The appli should also note that all public infor tion in the Board's public file of the cident ultimately is made available inspection and copying. Requests inspection, copying and copies of : public matter should be directed to Board's Executive Director, and c will be furnished in accordance the fee schedule contained in Part of the Board's regulations. § 435.4

Disclosure of information testimony in suits or actions for d ages arising out of aircraft accid Section 701(e) of the Federal Avia Act (49 U.S.C. 1441(e)) precludes use of the Board's reports in any

2 The Board's regional offices are loc in: Anchorage, Alaska; Chicago, Ill.; Der Colo.; Fort Worth, Tex.; Kansas City, Los Angeles, Calif.; Miami, Fla.; New Y N.Y.; Oakland, Calif.; Seattle, Wash.; W ington, D.C.

ction for damages arising out of an dent. The purpose of section 701(e) ld be defeated if expert opinion testiy of Board employees, and their uations, conclusions, and recommenons which are reflected in the ultie views of the Board expressed in report concerning the cause of the dent and the prevention of future dents, are admitted in evidence or in any way in private litigation Eng out of an aircraft accident. For same reason, the use of employees' ual reports in private litigation arisout of accidents would defeat the pose of section 701(e). Furthermore, use of Board employees as experts to opinion testimony in court would ose a serious administrative burden the Board's investigative staff. Acingly, no Board employee or former rd employee shall make public, by mony in any suit or action arising of an aircraft accident, information ained by him in the performance of official duties, except in accordance n the following provisions:

a) Testimony of employees and foremployees. Employees may serve as nesses for the purpose of testifying the facts observed by them in the rse of accident investigations in se suits or actions for damages arisout of aircraft accidents in which an ropriate showing has been made that facts desired to be adduced are not sonably available to the party seeksuch evidence by any other method, uding the use of discovery procedures inst the opposing party. Employees former employees shall testify only o facts actually observed by them in course of accident investigations and Il respectfully decline to give opinion lence as expert witnesses, their luations and conclusions, or testify h respect to recommendations resultfrom accident investigations on the unds that section 701 (e) and this part hibit their giving such testimony. gants are expected to obtain their ert witnesses from other sources. b) Use of reports. An employee or mer employee may use his factual ret solely to refresh his memory, and ll decline to read any portion thereof the record or refer to it or comment h respect to its contents.

c) Testimony by deposition and writ= interrogatories. Testimony of emyees will be made available for use in ts or actions for damages arising out

of accidents through depositions or written interrogatories only. 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 in suits or actions for damages arising out of accidents. Employees will be authorized to testify only once in connection with any investigation they have made of an accident. Consequently, when more than one law suit arises from the accident, it shall be the duty of counsel seeking the Board employee's deposition to ascertain the identity of all parties to the multiple law suits and their counsel and to advise them of the fact that a deposition has been granted so that they may be afforded an opportunity to participate therein.

(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 in actions other than those described in paragraph (c) hereof, shall be addressed to the General Counsel, who may approve or deny the request. Such request shall set forth the title of the case, 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 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 General Counsel 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 employec has received a subpoena to appear and testify, a request

for approval of his deposition 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 Aviation 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 make

arrangements with the court to have t employee excused from testifying. § 435.5 Disclosure of information testimony in State and local inve gations.

Employees and former employees m testify in a coroner's inquest, grand ju and criminal proceedings by a State local government only as to the facts & tually observed by them in the course accident investigations and shall not g opinion evidence as expert witnesses testify with respect to recommendatio resulting from accident investigations § 435.6 Release and disclosure of inf mation pertaining to aircraft in dents not classified as accidents. Information secured by the Board the investigation of an aircraft incide not classified as an aircraft accident m be released or disclosed upon request, b only in accordance with the provisions §§ 435.1 to 435.5.