Ask X3What does 49 CFR 390.8 (Separation of functions) require?
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Short answer
49 CFR 390.8 requires that an Agency employee who has taken an active part in investigating, prosecuting, advocating, or making an initial Agency determination in a proceeding may not advise or assist the Agency official authorized to issue a final decision in that case or a factually-related case. This separation of functions is intended to prevent bias and ensure impartiality in the decision-making process.
The rule says
"An Agency employee who has taken an active part in investigating, prosecuting, advocating, or making an initial Agency determination in a proceeding under 380.723, 382.717, 390.115, 390.135, or 391.47 of this chapter or section 5.4 to appendix A to subpart B of part 395 of this chapter may not, in that case or a factually-related case, advise or assist the Agency official authorized to issue a final decision in the applicable proceeding." (49 CFR 390.8(a))
In plain English
By separating the functions of investigation, prosecution, and decision-making, the Agency can ensure that decisions are made impartially and without bias. In practice, this means that an employee who has investigated a case or advocated for a particular outcome cannot later advise the decision-maker on that same case.
What to do
- Identify employees who have taken an active part in investigating, prosecuting, advocating, or making an initial Agency determination in a proceeding.
- Ensure that these employees do not advise or assist the Agency official authorized to issue a final decision in that case or a factually-related case.
- Implement procedures to prevent bias and ensure impartiality in the decision-making process.
- Train employees on the importance of separating functions and the consequences of non-compliance.