What does 49 CFR 386.3 (Separation of functions) require?

Short answer

49 CFR 386.3 requires the separation of functions between Agency employees engaged in investigative or prosecutorial functions and those who advise or decide cases. This means that employees involved in investigating or prosecuting a case cannot discuss or communicate with the decision-maker or their advisors, except as counsel or a witness in a public proceeding.

The rule says

"An Agency employee, including those listed in paragraph (c) of this section, engaged in the performance of investigative or prosecutorial functions in a civil penalty proceeding or in a proceeding under 386.11, 386.72, or 386.73 may not, in that case or a factually related case, discuss or communicate the facts or issues involved with the Agency Decisionmaker, Administrative Law Judge, Hearing Officer, or others listed in paragraph (d) of this section, except as counsel or a witness in the public proceedings." (49 CFR 386.3(b))

In plain English

It prevents employees who are investigating or prosecuting a case from influencing the decision-maker, which could lead to biased outcomes. In practice, this means that investigators and prosecutors must be careful not to discuss the case with decision-makers or their advisors, except in formal proceedings where all parties are present.

What to do

• Implement a clear separation of functions policy within your organization to comply with 49 CFR 386.3.
• Train employees on the importance of separating functions and the consequences of non-compliance.
• Establish procedures to prevent communication between investigative or prosecutorial staff and decision-makers or their advisors, except in formal proceedings.
• Review and update your policies and procedures regularly to ensure ongoing compliance with the regulation.