What does 49 CFR 385.21 (Separation of functions) require?

Short answer

49 CFR 385.21 requires separation of functions for Agency employees engaged in investigative, advocacy, or prosecutorial functions in certain proceedings. This means they cannot discuss or communicate with the Agency decisionmaker or personnel advising them, except in specific circumstances.

The rule says

"An Agency employee engaged in the performance of investigative, advocacy, or prosecutorial functions in a proceeding under 385.15, 385.113, 385.327, 385.423, 385.711, 385.911(e), 385.913(e), 385.1009(d), or 385.1011(d) may not, in that case or a factually-related case, discuss or communicate the facts or issues involved with, or otherwise advise or assist, the Agency decisionmaker or personnel advising the Agency decisionmaker, except as counsel or a witness in a public proceeding, or if the same facts and information are provided to all the parties involved in the matter." (49 CFR 385.21(a))

In plain English

It means that employees who are investigating or advocating in a case cannot influence the decisionmaker, unless they are acting as counsel or a witness in a public hearing. In practice, this means that Agency employees must be careful not to cross boundaries and compromise the independence of the decisionmaking process.

What to do

• Implement a clear separation of functions policy that complies with 49 CFR 385.21.
• Train Agency employees on the requirements of the rule and the importance of maintaining separation of functions.
• Establish procedures to prevent unauthorized communication between investigative or advocacy staff and decisionmakers.
• Monitor and enforce compliance with the separation of functions rule to ensure fairness and integrity in Agency proceedings.