Rules of Practice in Air Safety Proceedings; Rules Implementing the Equal Access to Justice Act of 1980, 63245-63253 [2012-25400]
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Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations
recommended change, and include
supporting data.
List of Subjects in 49 CFR Part 821
Administrative practice and
procedure, Airmen, Aviation safety.
For the reasons discussed in the
preamble, the NTSB amends 49 CFR
part 821 as follows:
PART 821—RULES OF PRACTICE IN
AIR SAFETY PROCEEDINGS
1. The authority citation for 49 CFR
part 821 is revised to read as follows:
■
Authority: 49 U.S.C. 1101–1155, 44701–
44723, 46301, Pub. L. 112–153, unless
otherwise noted.
2. Add § 821.5 to Subpart B to read as
follows:
■
§ 821.5
Procedural rules.
In proceedings under subparts C, D,
and F of this part, for situations not
covered by a specific Board rule, the
Federal Rules of Civil Procedure will be
followed to the extent they are
consistent with sound administrative
practice.
■ 3. Revise § 821.19 to read as follows:
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§ 821.19
Depositions and other discovery.
(a) Depositions. After a petition for
review or a complaint is filed, any party
may take the testimony of any person,
including a party, by deposition, upon
oral examination or written questions,
without seeking prior Board approval.
Reasonable notice shall be given in
writing to the other parties, stating the
name of the witness and the time and
place of the taking of the deposition, in
accordance with the Federal Rules of
Civil Procedure. A copy of any notice of
deposition shall be served on the law
judge to whom the proceeding has been
assigned or, if no law judge has been
assigned, on the Case Manager. In other
respects, the taking of any deposition
shall be compliance with the provisions
of 49 U.S.C. 46104(c).
(b) Exchange of information by the
parties. The parties must exchange
information in accordance with the
Federal Rules of Civil Procedure. Copies
of discovery requests and responses
shall be served on the law judge to
whom the proceeding has been assigned
or, if no law judge has been assigned, on
the Case Manager. In the event of a
dispute, either the assigned law judge or
another law judge delegated this
responsibility (if a law judge has not yet
been assigned or if the assigned law
judge is unavailable) may issue an
appropriate order, including an order
directing compliance with any ruling
previously made with respect to
discovery.
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(c) Failure to provide or preserve
evidence. The failure of any party to
comply with a law judge’s order
compelling discovery, or to cooperate
with a timely request for the
preservation of evidence, may result in
a negative inference against that party
with respect to the matter sought and
not provided or preserved, a preclusion
order, dismissal or other relief deemed
appropriate by the law judge.
(d) Motion to dismiss for failure to
include copy of releasable portion of
Enforcement Investigative Report (EIR).
(1) Where the FAA fails to provide the
releasable portion of its EIR with its
required notification to the respondent,
the respondent may move to dismiss the
complaint and, unless the Administrator
establishes good cause for that failure,
the law judge shall dismiss the
complaint. The law judge may accept
arguments from the parties on the issue
of whether a dismissal resulting from
failure to provide the releasable portions
of the EIR should be deemed to occur
with or without prejudice.
(2) The releasable portion of the EIR
shall include all information in the EIR,
except for the following:
(i) Information that is privileged;
(ii) Information that is an internal
memorandum, note or writing prepared
by a person employed by the FAA or
another government agency;
(iii) Information that would disclose
the identity of a confidential source;
(iv) Information of which applicable
law prohibits disclosure;
(v) Information about which the law
judge grants leave to withhold as not
relevant to the subject matter of the
proceeding or otherwise, for good cause
shown; or
(vi) Sensitive security information, as
defined at 49 U.S.C. 40119 and 49 CFR
15.5.
(3) Nothing in this section shall be
interpreted as preventing the
Administrator from releasing to the
respondent information in addition to
that which is contained in the releasable
portion of the EIR.
■ 4. Revise § 821.38 to read as follows:
§ 821.38
Evidence.
In any proceeding under the rules in
this part, all evidence which is relevant,
material, reliable and probative, and not
unduly repetitious or cumulative, shall
be admissible. All other evidence shall
be excluded. Unless inconsistent with
the requirements of the Administrative
Procedure Act, the Federal Rules of
Evidence will be applied in these
proceedings.
■ 5. In § 821.64, revise paragraph (a) to
read as follows:
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§ 821.64
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Judicial review.
(a) General. Judicial review of a final
order of the Board may be sought as
provided in 49 U.S.C. 1153 and 46110
by the filing of a petition for review
with the appropriate United States
Court of Appeals or United States
District Court within 60 days of the date
of entry (i.e., service date) of the Board’s
order. Under the applicable statutes, any
party may appeal the Board’s decision.
The Board is not a party in interest in
such appellate proceedings and,
accordingly, does not typically
participate in the judicial review of its
decisions. In matters appealed by the
Administrator, the other parties should
anticipate the need to make their own
defense.
*
*
*
*
*
Deborah A.P. Hersman,
Chairman.
[FR Doc. 2012–25421 Filed 10–15–12; 8:45 am]
BILLING CODE P
NATIONAL TRANSPORTATION
SAFETY BOARD
49 CFR Parts 821 and 826
[Docket No. NTSB–GC–2011–0001]
Rules of Practice in Air Safety
Proceedings; Rules Implementing the
Equal Access to Justice Act of 1980
National Transportation Safety
Board (NTSB or Board).
ACTION: Final rule.
AGENCY:
The NTSB amends its
regulations which set forth rules of
procedure for the NTSB’s review of
certificate actions taken by the Federal
Aviation Administration (FAA); and its
regulations which set forth rules of
procedure concerning applications for
fees and expenses under the Equal
Access to Justice Act of 1980 (EAJA).
The NTSB previously issued an advance
notice of proposed rulemaking
(ANPRM) and a notice of proposed
rulemaking (NPRM) and has carefully
considered comments submitted in
response to both documents. In a
separate interim final rule published
elsewhere in this issue of the Federal
Register, the NTSB is implementing
regulatory changes as a result of the
recently enacted Pilot’s Bill of Rights.
DATES: This final rule is effective
November 15, 2012.
ADDRESSES: A copy of the NPRM,
published in the Federal Register (FR),
is available for inspection and copying
in the NTSB’s public reading room,
located at 490 L’Enfant Plaza SW.,
Washington, DC 20594–2003.
SUMMARY:
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Alternatively, a copy of the NPRM is
available on the government-wide Web
site on regulations at https://
www.regulations.gov (Docket ID Number
NTSB–GC–2011–0001).
FOR FURTHER INFORMATION CONTACT:
David Tochen, General Counsel, (202)
314–6080.
SUPPLEMENTARY INFORMATION:
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I. Notice of Proposed Rulemaking
On February 9, 2012, the NTSB
published an NPRM inviting public
comments concerning the NTSB
procedural rules codified at 49 CFR
parts 821 and 826. 77 FR 6760. The
NPRM also addressed each of the 20
relevant comments received in response
to the ANPRM, which the NTSB
published on December 22, 2010. 75 FR
80452. In addition to various technical
changes, the NTSB proposed in the
NPRM changes to various regulations to
allow for the electronic filing of certain
documents; a requirement that the FAA
provide a copy of the releasable portions
of its enforcement investigation report
(EIR) by the date on which an
emergency order is issued; a statement
that the law judge may consider the
facts of each case and determine
whether to dismiss the case with
prejudice when the FAA withdraws its
complaint; and a statement that the law
judge will accept evidence in
determining whether a case warrants
emergency status. The NTSB also
proposed amendments to 49 CFR part
826, governing claims brought under the
EAJA, to bring the regulations up-todate and ensure petitioners are aware of
the steps necessary to obtain fees from
the FAA following an order requiring
the payment of fees.
Both the ANPRM and NPRM included
a discussion of the Board’s procedure
for handling certain aspects of
emergency cases. The FAA issues
emergency orders when it determines
the interests of aviation safety require
that the order take effect immediately,
and, in those cases, the certificate
holder may not exercise certificate
privileges during the pendency of an
appeal with the NTSB. Section 716 of
the Aviation Investment and Reform Act
for the 21st Century (‘‘AIR–21’’)
amended 49 U.S.C. 44709 by granting
the NTSB authority to review such
emergency determinations. Public Law
106–181, section 716 (April 5, 2000)
(codified at 49 U.S.C. 44709(e)(3)). The
NTSB’s rules governing review of the
emergency status of a case have been the
subject of debate in the aviation legal
community in the recent past.
Specifically, § 821.54(e) directs NTSB’s
law judges to dispose of petitions for
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review of the FAA’s emergency
determinations by:
Consider[ing] whether, based on the acts
and omissions alleged in the [Federal
Aviation] Administrator’s order, and
assuming the truth of such factual
allegations, the Administrator’s emergency
determination was appropriate under the
circumstances, in that it supports a finding
that aviation safety would likely be
compromised by a stay of the effectiveness of
the order during the pendency of the
respondent’s appeal.
The aspect of the standard relating to
the law judges’ assumption of the truth
of the FAA’s allegations of fact
prompted much feedback.
II. Comments Received on the NPRM
and Responses Thereto
The NTSB received nine comments in
response to the NPRM, which are
available at https://www.regulations.gov
(Docket No. NTSB–GC–2011–0001). The
NTSB carefully considered all
comments received in response to the
NPRM, as well as the preceding
ANPRM.1 This section contains
summaries of the NRPM comments. The
NTSB’s responses to the comments are
included in the section below entitled
‘‘Changes.’’
The comments primarily address the
NTSB’s regulations governing review of
emergency determinations, but also
provide feedback concerning other
NTSB regulations. Most of the
comments assert the current standard
for review of FAA emergency
determinations is fundamentally unfair
because it requires the NTSB’s law
judges to assume the truth of the factual
allegations the FAA makes in its
emergency order. While the NTSB did
not propose changing the standard of
review in the NPRM, it did propose a
requirement that the FAA provide a
copy of the EIR to each respondent in
emergency cases at the time the FAA
issues its emergency order. Following
publication of the NPRM and the
comment period, Congress passed the
Pilot’s Bill of Rights. Pub. L. No. 112–
153 (August 3, 2012). The statute
requires the FAA to release the EIR in
each case. Id. section 2(b)(2)(E). As a
result, the EIR proposal in the NPRM is
moot as it now is required by statute.
Therefore, this final rule will not
address the release of the EIR, rather the
NTSB addresses that requirement in an
interim final rule in response to the
Pilot’s Bill of Rights. This interim final
rule is published elsewhere in this issue
of the Federal Register.
1 Comments submitted in response to the ANPRM
are also available in Docket No. NTSB–GC–2011–
0001.
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In addition, the NTSB proposed a rule
that the law judge may consider
evidence concerning whether the case
warrants emergency status when the
respondent submits such evidence with
his or her petition for review of the
emergency order. This proposal also
prompted much discussion from the
commenters, as described below.
A. Section 821.54 (Disposition of
Petitions for Review of Emergency
Determinations of the Federal Aviation
Administration)
1. Comments Received
Regarding respondents’ challenges to
the emergency status of a case under
section 821.54, the FAA contends the
NTSB should not have used a drug
testing refusal case as an example of a
case where the law judge granted a
respondent’s petition regarding the
emergency status of the case. The FAA’s
comment asserts the NTSB gave the
impression that a respondent’s
opportunity to submit evidence was
equivalent to a trial on the merits. The
comment suggests adding the following
sentence at the end of § 821.54(b): ‘‘The
respondent may include attachments to
the petition for review (e.g., affidavits,
other records) limited to evidence the
respondent believes supports the
reasons enumerated in the petition for
why the Administrator’s emergency
determination is not warranted in the
interest of aviation safety.’’
The Air Line Pilots Association,
International (ALPA), also submitted a
comment concerning the emergency
actions. ALPA strongly disagrees with
the decision to leave the ‘‘assuming the
truth’’ standard of review undisturbed,
and proposed adding a requirement that
law judges must consider evidence a
respondent submits in his or her
challenge to the emergency status of a
case. ALPA’s comment also states the
NTSB should consider the amount of
time the FAA knew of the alleged
wrongdoing before issuing an
emergency order, as this time period is
relevant to whether the case is a
legitimate emergency.
Similarly, the Aircraft Owners and
Pilots Association (AOPA) disagrees
with the intent to leave the emergency
determination standard of review
unchanged. AOPA’s comment contends
Congress, in authorizing us to review
emergency appeals of aviation
certificate actions, intended to provide
each respondent with a ‘‘substantive
review’’ of the emergency action. AOPA
notes it ‘‘remains perplexed as to why
the NTSB maintains that this type of
review does not lend itself to
evidentiary proof.’’ AOPA states it is
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mindful of the time constraints
applicable to emergency cases, but
contends the time limits should not be
a reason to ‘‘undermine meaningful
review’’ of the emergency status. AOPA
suggests an allowance for telephonic
presentations and arguments concerning
whether the emergency status of a case
is warranted, and argues the law judges
should have discretion concerning
whether to assume the truth of the
factual allegations contained in the
FAA’s emergency orders. AOPA agrees
with the proposal that law judges may
consider evidence a respondent submits
in challenging an emergency order.
The National Air Transportation
Association (NATA) also commented on
the NPRM. As with the ANPRM, NATA
is in favor of eliminating the ‘‘assuming
the truth’’ standard of review
concerning the emergency status of
cases. NATA asserts no statute requires
this standard of review, nor does any
legislative history indicate this standard
is necessary. NATA contends
emergency actions, and deferential
review of them, are fundamentally
unfair, and asserts emergency actions
must be subject to ‘‘meaningful review’’
by an ‘‘impartial and independent
body.’’ NATA suggests the NTSB
impose a rebuttable presumption
standard concerning emergency
challenges. In particular, the comment
states:
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[w]hile NATA strongly believes that the
NTSB should create no presumption with
regard to the FAA’s factual allegations,
NATA believes that a rebuttable presumption
standard is the absolute minimum review
standard necessary to provide to the NTSB at
least some argument that it is providing due
process, appropriate checks and balances and
the type of meaningful, impartial and
independent review of FAA’s emergency
determination that Congress intended.
NATA asserts the requirement to defer
to the FAA’s interpretation of the
Federal Aviation Regulations (as
required by 49 U.S.C. 44709(d)(3)),2
combined with the ‘‘assuming the truth’’
standard, results in too much deference
to the FAA. NATA also believes the law
judges would not grant a challenge to
the FAA’s emergency action even when
the respondent presents evidence
indicating the factual allegations are not
true, as a result of the deferential
standard of review.
The National Business Aviation
Association (NBAA) submitted a
comment identical to that of NATA.
The Aeronautical Repair Station
Association (ARSA) also submitted a
2 The
Pilot’s Bill of Rights removes the
requirement that the Board defer to the FAA’s
interpretation of the Federal Aviation Regulations.
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comment expressing disagreement with
the intent not to remove the ‘‘assuming
the truth’’ standard of review applicable
to emergency cases. ARSA contends the
FAA’s authority to issue an emergency
order remains unchecked, and the
‘‘assuming the truth’’ standard
‘‘effectively swallows the rule’’ because
it renders review of petitions
challenging emergency status
meaningless. ARSA asserts an
emergency order should be used
sparingly, because the effect of such an
order is severe.
Carstens and Cahoon, LLP, submitted
a brief comment concurring with the
proposal to retain the ‘‘assuming the
truth’’ standard, as it is ‘‘in full accord
with 49 U.S.C. 44709(e).’’ The
commenter also agrees with the
proposed rule to permit respondents to
present evidence challenging the
emergency nature of the case, as this
proposal ‘‘provides both sides with
fairness and justice for the purpose of
the limited review by the law judge of
the FAA’s emergency determination.’’
The Transport Workers Union of
America (TWU) commented concerning
the standard of review of the emergency
status of cases. TWU acknowledges the
need for some deference to the FAA’s
factual allegations, given the fact that a
challenge concerning the emergency
status is limited in scope and cannot
consist of litigating the merits of the
case. As with its response to the
ANPRM, TWU again suggests adoption
of a less deferential standard of review
than the current ‘‘assuming the truth’’
standard. TWU analogizes its proposed
review of FAA emergency cases to
Federal courts’ review of temporary
restraining orders or preliminary
injunctionsto require the FAA to show
a substantial likelihood of success on
the merits.3 TWU notes other Federal
agencies apply this ‘‘substantial
likelihood of success’’ standard when
determining whether to grant a stay of
a case.4
3 As TWU notes in its comment, review of a
‘‘traditional stay’’ consists of a four-part test: (1)
Likelihood that the party seeking action would
prevail on the merits to any challenge sought; (2)
the aggrieved party would suffer irreparable harm
in the absence of a stay; (3) other interested parties
would not be substantially harmed by a stay; and
(4) the public interest supports the granting of a
stay. Washington Metro Area Transit Comm’n v.
Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir.
1977). TWU’s comment also cited a Surface
Transportation Board decision for this standard:
Eighteen Thirty Group LLC—Acquisition
Exemption—in Allegheny County, MD, STB FD
35438, 2010 WL 4639505.
4 TWU cited a Surface Transportation Board
(STB) case, Eighteen Thirty Group LLC—Acquisition
Exemption in Allegheny County, MD, STB FD
35438, 2010 WL 4639505, in which the STB
determined whether to grant a motion to stay their
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63247
The Aviation Law Firm submitted a
comment discussing the proposed
changes regarding emergency cases. The
commenter recommends the NTSB
change the permissive language of
‘‘should permit evidence, if
appropriate’’ within § 821.54(e) to say
‘‘shall permit evidence.’’ The Aviation
Law Firm contends such a change
would provide sufficient clarity that law
judges will consider evidence a
petitioner submits.
The FAA Whistleblowers Alliance
submitted a brief comment stating the
FAA misuses its authority to issue
emergency orders. The comment
indicates the organization agrees with
this rulemaking activity concerning
review of emergency orders.
2. Changes
The NTSB carefully reviewed all
comments regarding procedures
applicable to emergency cases. As
indicated above, the FAA is authorized,
under 49 U.S.C. 44709(e)(2), to issue
orders amending, modifying,
suspending, or revoking certificates
issued on an ‘‘emergency’’ basis. In
2000, AIR–21 amended 49 U.S.C. 44709
to grant the NTSB authority to review
such emergency determinations. In
particular, section 44709(e)(3) and (4)
states:
(3) Review of emergency order.—A person
affected by the immediate effectiveness of the
Administrator’s order under paragraph (2)
may petition for a review by the Board, under
procedures promulgated by the Board, of the
Administrator’s determination that an
emergency exists. Any such review shall be
requested not later than 48 hours after the
order is received by the person. If the Board
finds that an emergency does not exist that
requires the immediate application of the
order in the interest of safety in air commerce
or air transportation, the order shall be
stayed, notwithstanding paragraph (2). The
Board shall dispose of a review request under
this paragraph not later than 5 days after the
date on which the request is filed.
(4) Final disposition.—The Board shall
make a final disposition of an appeal under
subsection (d) not later than 60 days after the
date on which the appeal is filed.
In order to implement these statutory
provisions, on July 11, 2000, the NTSB
published an interim rule with a request
for comments. 65 FR 42637. This
interim rule amended 49 CFR part 821
by providing NTSB’s law judges with
the authority to issue orders affirming or
denying the FAA’s emergency
determination under 49 U.S.C. 44709(e).
The interim rule directed NTSB law
judges to determine whether the
decision. TWU’s comment also included citations
to two cases from the District of Columbia Court of
Appeals that addressed organizations’ petitions to
agencies for injunctions.
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Administrator abused his or her
discretion in finding an emergency
existed under the facts alleged in the
Administrator’s order. The NTSB
assumed the facts to be true for the
limited purpose of reviewing the
emergency determination. The NTSB
incorporated the abuse of discretion
standard of review that had been set
forth in Nevada Airlines v. Bond, 622
F.2d 1017 (9th Cir. 1980).5 Courts have
since upheld the ‘‘arbitrary and
capricious, an abuse of discretion, or
otherwise not in accordance with law’’
standard in other cases. See Ickes v.
FAA, 299 F.3d 260 (3d Cir. 2002) (citing
Blackman v. Busey, 938 F.2d 659, 663
(6th Cir. 1991)); Armstrong v. FAA, 515
F.3d 1294 (D.C. Cir. 2008).
On April 29, 2003, the NTSB
published the final rule altering the
standard of review for emergency
determinations. 58 FR 22623. Since
2003, § 821.54(e) has provided:
[w]ithin 5 days after the Board’s receipt of [a
petition for review of the FAA’s emergency
determination], the * * * law judge * * *
shall dispose of the petition by written order,
and, in so doing, shall consider whether,
based on the acts and omissions alleged in
the Administrator’s order, and assuming the
truth of such factual allegations, the
Administrator’s emergency determination
was appropriate under the circumstances, in
that it supports a finding that aviation safety
would likely be compromised by a stay of the
effectiveness of the order during the
pendency of the respondent’s appeal.
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This standard, therefore, was a
departure from the more stringent
standard the courts affirmed.
In the 2010 ANPRM, the NTSB
revisited this standard of review,
requesting comments. 75 FR 80452–01
(Dec. 22, 2010). In the ANPRM, the
NTSB reminded parties § 821.54(e) does
not explicitly state the allegations of the
FAA’s complaint are ‘‘deemed true,’’ but
instead uses the word ‘‘assum[ed].’’ The
NTSB modeled this language after
subsection (b) of the Board’s Stale
Complaint Rule, codified at 49 CFR
821.33.
In the 2012 NPRM, the NTSB did not
propose changing this ‘‘assuming the
truth’’ standard of review. The NTSB
concluded that a challenge to an
emergency determination should not be
an opportunity to contest the factual
allegations underlying the certificate
action. This determination simply is the
5 In Nevada Airlines, the Ninth Circuit stated as
follows concerning review of the emergency status
of cases: ‘‘[w]ithout an administrative record or
agency hearing at this stage of the proceedings and
in light of the Administrator’s broad discretion, we
limit our review to determining whether the
Administrator’s finding of an emergency was
arbitrary and capricious, an abuse of discretion, or
otherwise not in accordance with law.’’ Id. at 1020.
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result of the statutory time constraints
applicable to emergency cases.
If the NTSB held a hearing for every
petition challenging the emergency
status of a case, it could not fulfill its
obligation to rule on the merits of the
case within the statutorily required 60day time frame. A commenter’s
suggestion to utilize telephonic hearings
for emergency cases demonstrates an
understanding of this predicament. The
NTSB carefully considered alternatives
to the ‘‘assuming the truth’’ standard,
especially in light of the comments
received in response to both the
ANPRM and the NPRM, and determined
it simply cannot issue a ruling on a
petition challenging the emergency
status of a case within 5 days if the
NTSB holds a hearing.
The NTSB currently does not have the
resources to hold hearings on petitions
contesting emergency determinations,
given the expedited time frame.
Scheduling a time in which the parties
are available to participate in a hearing,
securing a space for the hearing, and
ensuring a law judge is available for the
hearing, would all be difficult to
accomplish within 5 days. These
considerations are only applicable to the
scheduling of the hearing. Issuing a
well-reasoned decision following the
receipt of evidence and testimony from
a hearing would require additional time.
Moreover, the NTSB only has four
administrative law judges, all of whom
are responsible for holding hearings
across all 50 states, the District of
Columbia, and Puerto Rico. Consistent
with § 821.37(a), the NTSB holds
hearings at the most convenient
locations for the parties. The NTSB
generally refrains from conducting
telephonic hearings at which the
NTSB’s law judges must make factual
determinations, because the law judges’
ability to assess the credibility of
witnesses at such hearings is greatly
diminished.
Additionally, the four-prong standard
applicable to preliminary injunctions or
temporary restraining orders is similar
to the manner in which NTSB law
judges currently handle emergency
challenges. By policy, the FAA attaches
to each emergency order a document
outlining the reason the FAA believes
emergency treatment of the case is
necessary. Under the Pilot’s Bill of
Rights, the FAA is now required to also
provide a copy of releasable portions of
the EIR to each respondent. In the
document providing the FAA’s
justification for pursuing the case as an
emergency, the FAA articulates the
public interest at stake, which is akin to
a showing of how irreparable harm
would ensue if it could not proceed
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with the case as an emergency. The
FAA’s statement also contains a factual
summary as to why the FAA would
prevail on the merits, and why the FAA
believes the public interest supports
proceeding under our emergency rules.
Federal courts, in applying the four-part
preliminary injunction or temporary
stay standard, must weigh the facts in a
similar manner. For example, in such
cases, they do not have time for a trial
on the merits of the case wherein they
apply a preponderance of the evidence
standard. Instead, the courts must weigh
the facts in favor of the party seeking
action in analyzing the four prongs to
determine whether short-term,
immediate legal action is appropriate.
The NTSB law judges’ review of
emergency challenges is similar to this
analysis.
For the reasons set forth above, the
NTSB retains the ‘‘assuming the truth’’
standard of review in § 821.54(e).
However, the NTSB will also consider
this analysis anew in light of any
petition for rulemaking, that includes
novel suggestions or points not
previously articulated.
Finally, the NTSB adopts the
suggestion from the Aviation Law Firm,
recommending a change in the language
of § 821.54(e) to state the law judge
‘‘shall’’ consider evidence a respondent
submits in challenging the FAA’s
decision to proceed with a case as an
emergency. The NTSB also adds the
phrase ‘‘if appropriate’’ to the sentence,
to ensure parties are aware the law
judge ultimately makes the
determination as to whether the
evidence the respondent submits is
relevant to the emergency
determination. Therefore, this portion of
§ 821.54(e) will now read, ‘‘* * * the
law judge is not so limited to the order’s
factual allegations themselves, but also
shall permit evidence, if appropriate,
pertaining to the propriety of the
emergency determination * * *.’’
B. Electronic Filing of Documents
1. Comments Received
Several parties commented on the
proposed changes to allow for electronic
submission of documents. All
commenters generally concur with
permitting electronic submission. AOPA
agrees with the move toward an
electronic filing system by accepting
documents via electronic mail, and
stated it also agrees with the proposal to
continue receiving documents by
facsimile or postal mail, as not all
respondents may have access to
electronic mail. NBAA and NATA,
however, both suggest creation of an
electronic docketing system, such as the
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Federal courts’ Public Access to Court
Electronic Records (PACER) system.
They indicate electronic docketing
would provide for the timeliest and
most efficient means of allowing parties
to receive documents, and therefore
provide a ‘‘level playing field’’ for both
parties. ALPA’s comment states it agrees
with the proposed changes to allow for
electronic submission of documents.
The Aviation Law Firm suggests an
allowance for electronic submission of
documents in emergency cases.
Therefore, it proposes an amendment to
§ 821.54(b), to provide a respondent
challenging the emergency status of an
emergency order to file his or her
petition via electronic mail.
The FAA also agrees with the
proposal to allow for electronic
submission of documents, and offered
several suggestions. With regard to
§ 821.7, the FAA suggests adding the
following sentence to subsections (a)(1)
and (a)(2) of the regulation, to simplify
it: ‘‘Paragraph (3) provides the
acceptable methods for filing documents
under this provision.’’ As for subsection
(a)(3), the FAA suggests the NTSB not
adopt the proposed rule stating,
‘‘Documents filed by electronic mail
must be signed and transmitted in a
commonly accepted format, such as
Adobe Portable Document Format
(PDF),’’ and instead adopt the following
language: ‘‘Documents filed by
electronic mail must be signed and
transmitted in accordance with the
procedures established by the Board for
accepting electronically filed
documents, which can be found at
[reference Web site where procedures
can be found].’’ The FAA suggests this
amendment to provide the NTSB with
flexibility in the future to alter the
procedures as technology changes. The
FAA’s comment states that if the NTSB
adopts this approach, the language in
§ 821.52 could be changed to clarify
whether parties may submit documents
in emergency cases via electronic mail.
The FAA also suggests clarification as
to whether parties must file the
‘‘originally signed document’’ in
addition to the copy received via
facsimile or electronic mail. The FAA
states, ‘‘[a]s currently drafted, it appears
that no hard copy needs to follow if a
document is filed by facsimile or
email.’’ The FAA suggests requiring a
hard copy submission in addition to
facsimile or electronic mail submission,
to ‘‘ensure the NTSB is aware of the
filing and that technical glitches do not
undermine an otherwise timely and
intended filing.’’ The FAA also
recommends establishing an automatic
receipt to be transmitted in response to
electronic mail filings.
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With regard to the proposed change to
§ 821.8(b), which would require a party
serve any other party by any method
prescribed in § 821.7(a)(3), and allow a
party the option of receiving service via
electronic mail only, the FAA
recommends clarifying this section by
stating whether parties must also serve
a hard copy of the document. The FAA
states the reference to § 821.7(a)(3)
creates this ambiguity. In response, the
FAA recommends explicitly requiring,
‘‘as a general matter,’’ that any party
serving a document by electronic mail
or facsimile also serve a hard copy, to
ensure the other party receives the
document.
Finally, the FAA, like the Aviation
Law Firm, questions why service via
electronic mail is not permitted for
emergency cases. The FAA recommends
allowing electronic service of
documents in the initial proceedings
before the law judges. Several other
commenters also recommend allowing
electronic submission of documents in
emergency cases.
2. Changes
As stated above, all commenters
approve of the concept of permitting
electronic filing in emergency cases.
Given the time constraints applicable to
emergency cases, the NTSB has
determined adopting such a
requirement would be advantageous to
all parties. For this reason, the NTSB
herein adopts the requirement for
emergency cases as well as cases that
proceed on the normal case disposition
timeline. This change involves deleting
references to expedited filing in
§ s 821.54(b) and (c), and 821.57(b).
Additionally, the change requires
adding a new subsection within
§ 821.52 to clarify electronic submission
of documents is permissible in
emergency cases.
The NTSB has determined the FAA’s
suggestion to provide a reference to the
NTSB public Web site for a listing of
procedures for electronic filing is
advantageous. Such an approach will
provide the NTSB with the flexibility to
accommodate technological changes. In
addition, listing procedures on the
NTSB public Web site will be helpful as
the NTSB seeks to design, build and
utilize a robust electronic docketing
system for enforcement cases. As a
result, the NTSB adopts this change,
and notes these procedures will be
available on the NTSB Web site after
publication of this final rule, but before
its effective date.
Finally, the NTSB intends to provide
in its online electronic filing procedures
additional clarifications concerning
§ 821.8(d)(3), in which the following
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63249
language was proposed: ‘‘[We will
presume lawful service] when a
document is transmitted by facsimile or
electronic mail and there is evidence to
confirm its successful transmission to
the intended recipient.’’ By this change,
the NTSB encourages parties filing via
electronic mail to keep a copy of the
transmission from their ‘‘sent mail’’ file.
With an electronic docketing system,
the NTSB may have the ability in the
future to provide a fill-able electronic
Web page that automatically generates
an electronic ‘‘receipt’’ for documents.
Some commenters urge the NTSB to
implement a robust electronic docketing
system, such as the Federal courts’
PACER system. The NTSB is currently
in the process of gathering requirements
and working with a contractor to design
a system for the NTSB’s docketing and
electronic filing needs. The NTSB
intends to develop and implement such
a docketing system; however, this
process may take some time, due to
resource and fiscal constraints.
C. Rules Concerning the EAJA (49 CFR
part 826)
1. Comments Received
Several commenters address the
proposed change to § 821.12(b), which
addressed the FAA’s voluntary
withdrawal of a complaint. The
proposed language stated: ‘‘The law
judge may accept arguments from the
parties on the issue of whether a
dismissal resulting from the withdrawal
of a complaint should be deemed to
occur with or without prejudice.’’ As
explained in the preamble of the NPRM,
the issue of dismissal with or without
prejudice is directly relevant to whether
a party has achieved ‘‘prevailing party’’
status under the EAJA.
Some commenters, such as NATA and
NBAA, indicate they have ‘‘no
objection’’ to the proposed change in
§ 821.12(b). The Aviation Law Firm
suggests changing the word ‘‘may’’ to
‘‘shall,’’ to require law judges to accept
arguments on the issue of dismissal
with or without prejudice. The
comment from the Aviation Law Firm
includes a summary of recent cases
concerning the EAJA. In particular, in
the case of Green Aviation Management
Co., LLC v. Federal Aviation
Administration, 676 F.3d 200 (DC Cir.
2012), the DC Circuit indicated the
with-or-without-prejudice prong of the
three-prong test articulated in District of
Columbia v. Straus, 590 F.3d 898 (DC
Cir. 2010), is indeed an important
consideration. In Green, the District of
Columbia Circuit Court of Appeals held
the applicant was the prevailing party
because the law judge dismissed the
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complaint with prejudice. Green, 676
F.3d at 204–205. Because this prong is
such an important consideration, the
Aviation Law Firm suggests the NTSB
rules state law judges ‘‘shall’’ consider
arguments concerning whether they
should dismiss a case with prejudice
when the FAA withdraws the
complaint.
The FAA’s comment states the
proposed addition to § 821.12(b) lacks
clarity, because the rule also states the
law judge’s approval is not necessary
‘‘in the case of a petition for review, an
appeal to the Board, a complaint, or an
appeal from the law judge’s initial
decision or appealable order.’’
Therefore, the FAA indicates the
proposed change implies approval from
a law judge is necessary to allow the
FAA to withdraw a complaint. The
FAA’s comment suggests if this
implication is correct, then the NTSB
should specify ‘‘such withdrawal must
be by motion of the party.’’ The FAA
suggests the following concerning such
a motion: (1) The motion state why the
moving party is requesting withdrawal;
(2) the motion state whether the moving
party is requesting dismissal with
prejudice; and (3) the motion state
whether the non-moving party consents
to the motion. The FAA also suggests
stating that the law judges will
summarily grant uncontested motions to
withdraw without prejudice.
The FAA also suggests a change to
part 826. The comment recommends
changing the formula in § 826.6(b)(1) to
the following: X/$125 per hour =
CPIlNEW/CPIl1996. The FAA states
the formula in the current rule is
outdated and results in a higher cap on
fees.
AOPA agrees with the proposed
change to § 821.12(b). AOPA’s
comment, however, addresses a
different aspect of the EAJA: the time for
which an EAJA applicant may recover
fees. With an extensive amount of
research cited in its comment, AOPA
contends the NTSB should allow an
applicant to petition for fees and
expenses incurred prior to the
commencement of the applicant’s
appeal. AOPA states applicants and
their representatives often expend time
and resources in preparation for a
defense prior to filing an appeal.
2. Changes
The majority of the comments
regarding the EAJA focused on
§ 821.12(b), involving dismissal of the
complaint with or without prejudice. As
stated in the NPRM, this issue is a
critical consideration in determining
whether a party is the ‘‘prevailing
party’’ for purposes of the EAJA. The
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NTSB understands the comment from
the Aviation Law Firm, wherein it
suggests inclusion of the word ‘‘shall,’’
to require the law judges to consider
parties’ arguments concerning whether
to dismiss a case with prejudice. The
NTSB initially chose to include the
word ‘‘may’’ in the proposed language
to acknowledge parties were not
required to make such arguments. If
parties are silent on the issue, then the
law judges would not consider such
arguments. The NTSB does not want to
penalize parties who do not present any
arguments on the issue of whether the
law judge should dismiss with
prejudice. As a result, the NTSB amends
the proposed language to include the
word ‘‘shall,’’ in conjunction with the
phrase, ‘‘if offered.’’
The FAA’s comment on the issue of
dismissal with prejudice was helpful.
The NTSB believes the clearest way to
address the issue of dismissal with
prejudice is to require a motion to
dismiss in light of the FAA’s
withdrawal of a complaint. As a result,
the NTSB changes the language in
§ 821.12(b) to require dismissals based
on withdrawals of complaints to occur
only on oral or written motion.
The FAA’s comment also
recommends updating the formula for
the calculation of the cap on the
maximum hourly rate for attorney’s fees
under the EAJA, found at 49 CFR
826.6(b)(1). The NTSB did not propose
such a change or solicit comments
concerning this calculation in either the
ANPRM or the NPRM. As a result, the
NTSB declines to consider this change
in the current rulemaking.
Likewise, AOPA submitted a
comment urging the NTSB to change the
EAJA rules to allow a respondent to
recover fees from the time he or she
begins preparing the defense (i.e., once
the respondent becomes aware of the
investigation). As with the FAA’s
suggestion regarding the calculation for
the cap of fees under the EAJA, the
NTSB did not propose a change or
solicit comments regarding when to
permit recovery of fees to commence. As
a result, the NTSB declines to consider
this change in the current rulemaking.
If the FAA, AOPA, or any other
commenter wishes the NTSB to
consider making changes to these rules
under the EAJA, they may petition for
a new rulemaking.
D. Miscellaneous Technical Changes
1. Comments Received
The majority of the comments concur
with the miscellaneous technical
changes. The FAA provided several
suggested changes to the proposed
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language in this category. Concerning
§ 821.8(d) (entitled ‘‘service of
documents’’), the NTSB proposed to add
a new subsection (3), to presume lawful
service ‘‘[w]hen a document is
transmitted by facsimile or electronic
mail and there is evidence to confirm its
successful transmission to the intended
recipient.’’
With regard to § 821.64(b) (entitled
‘‘judicial review’’), the NTSB proposed
adding the following language: ‘‘[n]o
request for a stay pending judicial
review will be entertained unless it is
served on the Board within 20 days after
the date of service of the Board’s order.
The Administrator may, within 2 days
after the date of service of such a
motion, file a reply thereto.’’ The FAA’s
comment notes the NTSB based this
change on the incorrect presumption
that only a respondent would seek a
stay. The FAA contends there may be
times when the FAA needs to file a
motion for a stay, and therefore
recommends adopting party-neutral
language in the rule (such as ‘‘moving
party’’ and ‘‘non-moving party’’). The
FAA also believes it is unreasonable to
allow the non-moving party only 2 days
to file a reply to the motion for stay,
when the moving party has 20 days. In
this regard, the FAA suggests permitting
the moving party 10 days from the date
of service of the Board’s order to file a
motion for stay, and allow the nonmoving party 10 days to submit a reply
to the motion.
2. Changes
In response to the FAA’s suggestions
regarding motions for stays, the NTSB
herein amends the language in 821.64(b)
to ensure it is party-neutral. The FAA
also suggests altering the timeframe to
allow the moving party 10 days to file
a motion for stay, and the non-moving
party an additional 10 days to reply to
the motion. The NTSB considered this
suggestion, and believes the most
reasonable and fair filing timeframe is as
follows: a party may file a motion for
stay within 15 days of the date of
service of the Board’s order, and the
non-moving party may reply to the
motion within 5 days of the date of
service of the motion for stay. The NTSB
adopts this change, as it will ensure the
NTSB does not encounter a situation in
which a party files a motion for stay on
the 29th day following service of the
Board’s order, but still provides
sufficient time for a party to submit the
motion. Likewise, the NTSB believes a
5-day timeframe to reply following
service of the motion is reasonable.
Finally, ARSA suggests an alteration
to the language in the stale complaint
rule (codified at 49 CFR 821.33), to shift
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the burden to the FAA in response to a
respondent’s motion to dismiss based
on the stale complaint rule. Specifically,
ARSA suggests changing the rule to
require the FAA to reply within 15 days
of a motion to dismiss based on the stale
complaint rule, and to require the reply
show good cause existed for the FAA’s
delay, or that public interest warrants
imposition of the sanction,
notwithstanding the delay. The NTSB
did not propose a change or request
comments concerning the stale
complaint rule. Therefore, as indicated
above, the NTSB will not attempt to
issue such a change herein.
For the foregoing reasons, the NTSB
finalizes the language of 49 CFR parts
821 and 826 as set forth below.
III. Regulatory Analyses
In the NPRM, the NTSB included a
regulatory analyses section concerning
various Executive Orders and statutory
provisions. The NTSB did not receive
any comments concerning the results of
these analyses. The NTSB again notes
the following concerning such
Executive Orders and statutory
provisions.
This final rule is not a significant
regulatory action under Executive Order
12866. Therefore, Executive Order
12866 does not require a Regulatory
Assessment. As such, the Office of
Management and Budget (OMB) has not
reviewed this proposed rule under
Executive Order 12866. In addition, on
July 11, 2011, the President issued
Executive Order 13579, ‘‘Regulation and
Independent Regulatory Agencies,’’ 76
FR 41587, July 14, 2011). Section 2(a) of
the Executive Order states:
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Independent regulatory agencies ‘‘should
consider how best to promote retrospective
analysis of rules that may be outmoded,
ineffective, insufficient, or excessively
burdensome, and to modify, streamline,
expand, or repeal them in accordance with
what has been learned.’’
76 FR at 41587.
Consistent with Executive Order
13579, the NTSB’s amendments to 49
CFR parts 821 and 826 reflect its
judgment that these rules should be
updated and streamlined.
This rule does not require an analysis
under the Unfunded Mandates Reform
Act, 2 United States Code (U.S.C.) 1501–
1571, or the National Environmental
Policy Act, 42 U.S.C. 4321–4347.
As stated in the NPRM, the NTSB has
also analyzed these amendments in
accordance with the principles and
criteria contained in Executive Order
13132. Any rulemaking proposal
resulting from this notice would not
propose any regulations that would: (1)
Have a substantial direct effect on the
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states, the relationship between the
national government and the states, or
the distribution of power and
responsibilities among the various
levels of government; (2) impose
substantial direct compliance costs on
state and local governments; or (3)
preempt state law. Therefore, the
consultation and funding requirements
of Executive Order 13132 do not apply.
The NTSB is also aware that the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.) requires each agency to review
its rulemaking to assess the potential
impact on small entities, unless the
agency determines that a rule is not
expected to have a significant economic
impact on a substantial number of small
entities. The NTSB certifies this final
rule will not have a significant
economic impact on a substantial
number of small entities.
Regarding other Executive Orders and
statutory provisions, this final rule also
complies with all applicable standards
in sections 3(a) and 3(b)(2) of Executive
Order 12988, Civil Justice Reform, to
minimize litigation, eliminate
ambiguity, and reduce burden. In
addition, the NTSB has evaluated this
rule under: Executive Order 12630,
Governmental Actions and Interference
with Constitutionally Protected Property
Rights; Executive Order 13045,
Protection of Children from
Environmental Health Risks and Safety
Risks; Executive Order 13175,
Consultation and Coordination with
Indian Tribal Governments; Executive
Order 13211, Actions Concerning
Regulations That Significantly Affect
Energy Supply, Distribution, or Use; and
the National Technology Transfer and
Advancement Act, 15 U.S.C. 272 note.
The NTSB has concluded that this rule
does not contravene any of the
requirements set forth in these
Executive Orders or statutes, nor does
this rule prompt further consideration
with regard to such requirements.
List of Subjects
49 CFR Part 821
Administrative practice and
procedure, Airmen, Aviation safety.
49 CFR Part 826
Claims, Equal access to justice,
Lawyers.
For the reasons discussed in the
preamble, the NTSB amends 49 CFR
parts 821 and 826 as follows:
PART 821—RULES OF PRACTICE IN
AIR SAFETY PROCEEDINGS
1. The authority citation for 49 CFR
part 821 is revised to read as follows:
■
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63251
Authority: 49 U.S.C. 1101–1155, 44701–
44723, 46301, Pub. L. 112–153, unless
otherwise noted.
2. In § 821.6, revise paragraphs (b) and
(d) to read as follows:
■
§ 821.6 Appearances and rights of
witnesses.
*
*
*
*
*
(b) Any person appearing in any
proceeding governed by this part may be
accompanied, represented and advised,
and may be examined by, his or her own
counsel or representative.
*
*
*
*
*
(d) Any party to a proceeding who is
represented by an attorney or
representative shall, in a separate
written document, notify the Board of
the name, address and telephone
number of that attorney or
representative. In the event of a change
in representation or a withdrawal of
representation, the party shall
immediately, in a separate written
document, notify the Board (in the
manner provided in § 821.7) and the
other parties to the proceeding
(pursuant to § 821.8), before the new
attorney or representative may
participate in the proceeding in any
way. Parties, and their attorneys and
representatives, must notify the Board
immediately of any changes in their
contact information.
■ 3. In § 821.7, revise paragraphs (a), (e),
and (f) to read as follows:
§ 821.7
Board.
Filing of documents with the
(a) Filing address, method and date of
filing. (1) Except as provided in
paragraph (a)(2) of this section,
documents are to be filed with the
Office of Administrative Law Judges,
National Transportation Safety Board,
490 L’Enfant Plaza East SW.,
Washington, DC 20594, and addressed
to the assigned law judge, if any. If the
proceeding has not yet been assigned to
a law judge, documents shall be
addressed to the Case Manager.
Paragraph (a)(3) of this section provides
the acceptable methods for filing
documents under this provision.
(2) Subsequent to the filing of a notice
of appeal with the Office of
Administrative Law Judges from a law
judge’s initial decision or appealable
order, the issuance of a decision
permitting an interlocutory appeal, or
the expiration of the period within
which an appeal from the law judge’s
initial decision or appealable order may
be filed, all documents are to be filed
with the Office of General Counsel,
National Transportation Safety Board,
490 L’Enfant Plaza East SW.,
Washington, DC 20594. Paragraph (a)(3)
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of this section provides the acceptable
methods for filing documents under this
provision.
(3) Documents shall be filed: By
personal delivery, by U.S. Postal Service
first-class mail, by overnight delivery
service, by facsimile or by electronic
mail as specified on the ‘‘Administrative
Law Judges’’ Web page on the NTSB’s
public Web site. Documents filed by
electronic mail must be signed and
transmitted as specified on the
‘‘Administrative Law Judges’’ Web page
on the NTSB’s public Web site.
(4) Documents shall be deemed filed
on the date of personal delivery; on the
send date shown on the facsimile or the
item of electronic mail; and, for mail
delivery service, on the mailing date
shown on the certificate of service, on
the date shown on the postmark if there
is no certificate of service, or on the
mailing date shown by other evidence if
there is no certificate of service and no
postmark. Where the document bears a
postmark that cannot reasonably be
reconciled with the mailing date shown
on the certificate of service, the
document will be deemed filed on the
date of the postmark.
*
*
*
*
*
(e) Subscription. The original of every
document filed shall be signed by the
filing party, or by that party’s attorney
or representative.
(f) Designation of person to receive
service. The initial document filed by a
party in a proceeding governed by this
part, and any subsequent document
advising the Board of any representation
or change in representation of a party
that is filed pursuant to § 821.6(d), shall
show on the first page the name, address
and telephone number of the person or
persons who may be served with
documents on that party’s behalf.
*
*
*
*
*
4. In § 821.8, revise paragraphs (a),
(b)(1), (c), (d), and (e) to read as follows:
■
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§ 821.8
Service of documents.
(a) Who must be served. (1) Copies of
all documents filed with the Board must
be simultaneously served on (i.e., sent
to) all other parties to the proceeding,
on the date of filing, by the person filing
them. A certificate of service shall be a
part of each document and any copy or
copies thereof tendered for filing, and
shall certify concurrent service on the
Board and the parties. A certificate of
service shall be in substantially the
following form:
I hereby certify that I have this day served
the foregoing [specify document] on the
following party’s counsel or designated
representatives [or party, if without counsel
or representative], at the address indicated,
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by [specify the method of service (e.g., firstclass mail, electronic mail, personal service,
etc.)] [List names and addresses of all persons
served] Dated at lllthisll day
oflllll 20l (Signature)lllll For
(on behalf of)lllll
(2) Service shall be made on the
person designated in accordance with
§ 821.7(f) to receive service. If no such
person has been designated, service
shall be made directly on the party. (b)
Method of Service. (1) Service of
documents by any party on any other
party shall be accomplished by any
method prescribed in § 821.7(a)(3) for
the filing of documents with the Board.
A party may waive the applicability of
this paragraph, and elect to be served
with documents by the other parties to
the proceeding solely by electronic mail,
by filing a written document with the
Board (with copies to the other parties)
expressly stating such a preference.
*
*
*
*
*
(c) Where service shall be made.
Except for electronic mail, personal
service, parties shall be served at the
address appearing in the official record,
which the Board must receive under
§§ 821.6(d) and 821.7(f). In the case of
an agent designated by an air carrier
under 49 U.S.C. 46103, service may be
accomplished only at the agent’s office
or usual place of residence.
(d) Presumption of service. There
shall be a presumption of lawful service:
(1) When receipt has been
acknowledged by a person who
customarily or in the ordinary course of
business receives mail at the residence
or principal place of business of the
party or of the person designated under
§ 821.7(f);
(2) When a properly addressed
envelope, sent to the most current
address in the official record, by regular,
registered or certified mail, has been
returned as unclaimed or refused; or
(3) When a document is transmitted
by facsimile or electronic mail and there
is evidence to confirm its successful
transmission to the intended recipient.
(e) Date of service. The date of service
shall be determined in the same manner
as the filing date is determined under
§ 821.7(a)(4).
■ 5. In § 821.12, revise paragraph (b) to
read as follows:
§ 821.12 Amendment and withdrawal of
pleadings.
*
*
*
*
*
(b) Withdrawal. Except in the case of
a petition for review, an appeal to the
Board, a complaint, or an appeal from
a law judge’s initial decision or
appealable order, pleadings may be
withdrawn only upon approval of the
law judge or the Board. The law judge
PO 00000
Frm 00048
Fmt 4700
Sfmt 4700
may dismiss the case after receiving a
motion to dismiss based on withdrawal
of the complaint. The law judge shall
accept arguments or motions, oral or
written, from the parties, if offered, on
the issue of whether a dismissal
resulting from the withdrawal of a
complaint should be deemed to occur
with or without prejudice.
■ 6. In § 821.35, revise paragraph (b)(10)
to read as follows:
§ 821.35
Assignment, duties and powers.
*
*
*
*
*
(b) * * *
(10) To issue initial decisions and
dispositional orders.
*
*
*
*
*
■ 7. In § 821.50, revise paragraph (c) to
read as follows:
§ 821.50 Petition for rehearing,
reargument, reconsideration or
modification of an order of the Board.
*
*
*
*
*
(c) Content. The petition shall state
briefly and specifically the matters of
record alleged to have been erroneously
decided, and the ground or grounds
relied upon. If the petition is based, in
whole or in part, upon new matter, it
shall set forth such new matter and shall
contain affidavits of prospective
witnesses, authenticated documents, or
both, or an explanation of why such
substantiation is unavailable, and shall
explain why such new matter could not
have been discovered in the exercise of
due diligence prior to the date on which
the evidentiary record closed. To the
extent the petition is not based upon
new matter, the Board will not consider
arguments that could have been made in
the appeal or reply briefs received prior
to the Board’s decision.
*
*
*
*
*
■ 8. In § 821.52, add paragraph (e) to
read as follows:
§ 821.52
General.
*
*
*
*
*
(e) Acceptable methods of filing and
service. All documents submitted by a
party in a proceeding governed by this
subpart must be filed with the Board by
overnight delivery, facsimile or
electronic mail, and simultaneously
served on all other parties by the same
means. If filing by electronic mail,
parties must adhere to the requirements
in § 821.7(a)(3).
■ 9. In § 821.54, paragraphs (b), (c), and
(e) to read as follows:
§ 821.54 Petition for review of
Administrator’s determination of
emergency.
*
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(b) Form, content and service of
petition. The petition may be in letter
form. A copy of the Administrator’s
order, from which review of the
emergency determination is sought,
must be attached to the petition. If a
copy of the order is not attached, the
petition will be dismissed. While the
petition need only request that the
Board review the Administrator’s
determination as to the existence of an
emergency requiring the order be
effective immediately, it may also
enumerate the respondent’s reasons for
believing that the Administrator’s
emergency determination is not
warranted in the interest of aviation
safety. The respondent may include
attachments to the petition for review
(e.g., affidavits, other documents or
records) limited to evidence the
respondent believes supports the
reasons enumerated in the petition for
why the Administrator’s emergency
determination is not warranted in the
interest of aviation safety.
(c) Reply to petition. If the petition
enumerates the respondent’s reasons for
believing that the Administrator’s
emergency determination is
unwarranted, the Administrator may,
within 2 days after the date of service
of the petition, file a reply, which shall
be strictly limited to matters of rebuttal.
No submissions other than the
respondent’s petition and the
Administrator’s reply in rebuttal will be
accepted, except in accordance with
paragraph (d) of this section.
*
*
*
*
*
(e) Disposition. Within 5 days after
the Board’s receipt of the petition, the
chief law judge (or, if the case has been
assigned to a law judge other than the
chief law judge, the law judge to whom
the case is assigned) shall dispose of the
petition by written order, and, in so
doing, shall consider whether, based on
the acts and omissions alleged in the
Administrator’s order, and assuming the
truth of such factual allegations, the
Administrator’s emergency
determination was appropriate under
the circumstances, in that it supports a
finding that aviation safety would likely
be compromised by a stay of the
effectiveness of the order during the
pendency of the respondent’s appeal. In
making this determination, however, the
law judge is not so limited to the order’s
factual allegations themselves, but also
shall permit evidence, if appropriate,
pertaining to the propriety of the
emergency determination, presented by
the respondent with the petition and the
VerDate Mar<15>2010
14:24 Oct 15, 2012
Jkt 229001
Administrator with the reply to the
petition. This evidence can include
affidavits or other such records.
*
*
*
*
*
10. In § 821.55, revise paragraph (a) to
read as follows:
■
§ 821.55 Complaint, answer to complaint,
motions and discovery.
(a) Complaint. In proceedings
governed by this subpart, the
Administrator’s complaint shall be filed
and simultaneously served on the
respondent within 3 days after the date
on which the Administrator received
the respondent’s appeal, or within 3
days after the date of service of an order
disposing of a petition for review of an
emergency determination, whichever is
later.
*
*
*
*
*
11. In § 821.57, revise paragraphs (b)
and (c) to read as follows:
■
§ 821.57
Procedure on appeal.
*
*
*
*
*
(b) Briefs and oral argument. Each
appeal in proceedings governed by this
subpart must be perfected, within 5
days after the date on which the notice
of appeal was filed, by the filing, and
simultaneous service on the other
parties, of a brief in support of the
appeal. Any other party to the
proceeding may file a brief in reply to
the appeal brief within 7 days after the
date on which the appeal brief was
served on that party. A copy of the reply
brief shall simultaneously be served on
the appealing party and any other
parties to the proceeding. Aside from
the time limits specifically mandated by
this paragraph, the provisions of
§§ 821.7(a)(3) and 821.48 shall apply.
(c) Issues on appeal. The provisions
of § 821.49(a) and (b) shall apply in
proceedings governed by this subpart.
*
*
*
*
*
12. In § 821.64, revise paragraph (b) to
read as follows:
■
§ 821.64
Judicial Review.
*
*
*
*
*
(b) Stay pending judicial review. No
request for a stay pending judicial
review will be entertained unless it is
served on the Board within 15 days after
the date of service of the Board’s order.
The non-moving party may, within 5
days after the date of service of such a
motion, file a reply thereto.
PO 00000
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63253
PART 826—RULES IMPLEMENTING
THE EQUAL ACCESS TO JUSTICE
ACT OF 1980
13. The authority citation for 49 CFR
part 826 continues read as follows:
■
Authority: Section 203(a)(1) Pub. L. 99–80,
99 Stat. 186 (5 U.S.C. 504).
■
14. Revise § 826.1 to read as follows:
§ 826.1
Purpose of these rules.
The Equal Access to Justice Act, 5
U.S.C. 504 (the Act), provides for the
award of attorney fees and other
expenses to eligible individuals and
entities who are parties to certain
administrative proceedings (adversary
adjudications) before the National
Transportation Safety Board. An eligible
party may receive an award when it
prevails over the Federal Aviation
Administration (FAA), unless the FAA’s
position in the proceeding was
substantially justified or special
circumstances make an award unjust.
The rules in this part describe the
parties eligible for awards and the
proceedings that are covered. They also
explain how to apply for awards, and
the procedures and standards this Board
will use to make them. As used
hereinafter, the term ‘‘Administrator’’
refers to the Administrator of the FAA.
■ 15. Revise § 826.40 to read as follows:
§ 826.40
Payment of award.
Within 5 days of the Board’s service
of a final decision granting an award of
fees and expenses to an applicant, the
Administrator shall transmit to the
applicant instructions explaining how
the applicant may obtain the award.
These instructions may require, but are
not limited to, the submission of the
following information to the
Administrator: a statement that the
applicant will not seek review of the
decision in the United States courts,
bank routing numbers to which the
Administrator may transmit payment,
and the applicant’s tax identification or
Social Security number. The
Administrator will pay the applicant the
amount awarded within 60 days of
receiving the necessary information
from the applicant, unless judicial
review of the award or of the underlying
decision of the adversary adjudication
has been sought by the applicant or any
other party to the proceeding.
Deborah A.P. Hersman,
Chairman.
[FR Doc. 2012–25400 Filed 10–15–12; 8:45 am]
BILLING CODE 7533–01–P
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Agencies
[Federal Register Volume 77, Number 200 (Tuesday, October 16, 2012)]
[Rules and Regulations]
[Pages 63245-63253]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-25400]
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NATIONAL TRANSPORTATION SAFETY BOARD
49 CFR Parts 821 and 826
[Docket No. NTSB-GC-2011-0001]
Rules of Practice in Air Safety Proceedings; Rules Implementing
the Equal Access to Justice Act of 1980
AGENCY: National Transportation Safety Board (NTSB or Board).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The NTSB amends its regulations which set forth rules of
procedure for the NTSB's review of certificate actions taken by the
Federal Aviation Administration (FAA); and its regulations which set
forth rules of procedure concerning applications for fees and expenses
under the Equal Access to Justice Act of 1980 (EAJA). The NTSB
previously issued an advance notice of proposed rulemaking (ANPRM) and
a notice of proposed rulemaking (NPRM) and has carefully considered
comments submitted in response to both documents. In a separate interim
final rule published elsewhere in this issue of the Federal Register,
the NTSB is implementing regulatory changes as a result of the recently
enacted Pilot's Bill of Rights.
DATES: This final rule is effective November 15, 2012.
ADDRESSES: A copy of the NPRM, published in the Federal Register (FR),
is available for inspection and copying in the NTSB's public reading
room, located at 490 L'Enfant Plaza SW., Washington, DC 20594-2003.
[[Page 63246]]
Alternatively, a copy of the NPRM is available on the government-wide
Web site on regulations at https://www.regulations.gov (Docket ID Number
NTSB-GC-2011-0001).
FOR FURTHER INFORMATION CONTACT: David Tochen, General Counsel, (202)
314-6080.
SUPPLEMENTARY INFORMATION:
I. Notice of Proposed Rulemaking
On February 9, 2012, the NTSB published an NPRM inviting public
comments concerning the NTSB procedural rules codified at 49 CFR parts
821 and 826. 77 FR 6760. The NPRM also addressed each of the 20
relevant comments received in response to the ANPRM, which the NTSB
published on December 22, 2010. 75 FR 80452. In addition to various
technical changes, the NTSB proposed in the NPRM changes to various
regulations to allow for the electronic filing of certain documents; a
requirement that the FAA provide a copy of the releasable portions of
its enforcement investigation report (EIR) by the date on which an
emergency order is issued; a statement that the law judge may consider
the facts of each case and determine whether to dismiss the case with
prejudice when the FAA withdraws its complaint; and a statement that
the law judge will accept evidence in determining whether a case
warrants emergency status. The NTSB also proposed amendments to 49 CFR
part 826, governing claims brought under the EAJA, to bring the
regulations up-to-date and ensure petitioners are aware of the steps
necessary to obtain fees from the FAA following an order requiring the
payment of fees.
Both the ANPRM and NPRM included a discussion of the Board's
procedure for handling certain aspects of emergency cases. The FAA
issues emergency orders when it determines the interests of aviation
safety require that the order take effect immediately, and, in those
cases, the certificate holder may not exercise certificate privileges
during the pendency of an appeal with the NTSB. Section 716 of the
Aviation Investment and Reform Act for the 21st Century (``AIR-21'')
amended 49 U.S.C. 44709 by granting the NTSB authority to review such
emergency determinations. Public Law 106-181, section 716 (April 5,
2000) (codified at 49 U.S.C. 44709(e)(3)). The NTSB's rules governing
review of the emergency status of a case have been the subject of
debate in the aviation legal community in the recent past.
Specifically, Sec. 821.54(e) directs NTSB's law judges to dispose of
petitions for review of the FAA's emergency determinations by:
Consider[ing] whether, based on the acts and omissions alleged
in the [Federal Aviation] Administrator's order, and assuming the
truth of such factual allegations, the Administrator's emergency
determination was appropriate under the circumstances, in that it
supports a finding that aviation safety would likely be compromised
by a stay of the effectiveness of the order during the pendency of
the respondent's appeal.
The aspect of the standard relating to the law judges' assumption of
the truth of the FAA's allegations of fact prompted much feedback.
II. Comments Received on the NPRM and Responses Thereto
The NTSB received nine comments in response to the NPRM, which are
available at https://www.regulations.gov (Docket No. NTSB-GC-2011-0001).
The NTSB carefully considered all comments received in response to the
NPRM, as well as the preceding ANPRM.\1\ This section contains
summaries of the NRPM comments. The NTSB's responses to the comments
are included in the section below entitled ``Changes.''
---------------------------------------------------------------------------
\1\ Comments submitted in response to the ANPRM are also
available in Docket No. NTSB-GC-2011-0001.
---------------------------------------------------------------------------
The comments primarily address the NTSB's regulations governing
review of emergency determinations, but also provide feedback
concerning other NTSB regulations. Most of the comments assert the
current standard for review of FAA emergency determinations is
fundamentally unfair because it requires the NTSB's law judges to
assume the truth of the factual allegations the FAA makes in its
emergency order. While the NTSB did not propose changing the standard
of review in the NPRM, it did propose a requirement that the FAA
provide a copy of the EIR to each respondent in emergency cases at the
time the FAA issues its emergency order. Following publication of the
NPRM and the comment period, Congress passed the Pilot's Bill of
Rights. Pub. L. No. 112-153 (August 3, 2012). The statute requires the
FAA to release the EIR in each case. Id. section 2(b)(2)(E). As a
result, the EIR proposal in the NPRM is moot as it now is required by
statute. Therefore, this final rule will not address the release of the
EIR, rather the NTSB addresses that requirement in an interim final
rule in response to the Pilot's Bill of Rights. This interim final rule
is published elsewhere in this issue of the Federal Register.
In addition, the NTSB proposed a rule that the law judge may
consider evidence concerning whether the case warrants emergency status
when the respondent submits such evidence with his or her petition for
review of the emergency order. This proposal also prompted much
discussion from the commenters, as described below.
A. Section 821.54 (Disposition of Petitions for Review of Emergency
Determinations of the Federal Aviation Administration)
1. Comments Received
Regarding respondents' challenges to the emergency status of a case
under section 821.54, the FAA contends the NTSB should not have used a
drug testing refusal case as an example of a case where the law judge
granted a respondent's petition regarding the emergency status of the
case. The FAA's comment asserts the NTSB gave the impression that a
respondent's opportunity to submit evidence was equivalent to a trial
on the merits. The comment suggests adding the following sentence at
the end of Sec. 821.54(b): ``The respondent may include attachments to
the petition for review (e.g., affidavits, other records) limited to
evidence the respondent believes supports the reasons enumerated in the
petition for why the Administrator's emergency determination is not
warranted in the interest of aviation safety.''
The Air Line Pilots Association, International (ALPA), also
submitted a comment concerning the emergency actions. ALPA strongly
disagrees with the decision to leave the ``assuming the truth''
standard of review undisturbed, and proposed adding a requirement that
law judges must consider evidence a respondent submits in his or her
challenge to the emergency status of a case. ALPA's comment also states
the NTSB should consider the amount of time the FAA knew of the alleged
wrongdoing before issuing an emergency order, as this time period is
relevant to whether the case is a legitimate emergency.
Similarly, the Aircraft Owners and Pilots Association (AOPA)
disagrees with the intent to leave the emergency determination standard
of review unchanged. AOPA's comment contends Congress, in authorizing
us to review emergency appeals of aviation certificate actions,
intended to provide each respondent with a ``substantive review'' of
the emergency action. AOPA notes it ``remains perplexed as to why the
NTSB maintains that this type of review does not lend itself to
evidentiary proof.'' AOPA states it is
[[Page 63247]]
mindful of the time constraints applicable to emergency cases, but
contends the time limits should not be a reason to ``undermine
meaningful review'' of the emergency status. AOPA suggests an allowance
for telephonic presentations and arguments concerning whether the
emergency status of a case is warranted, and argues the law judges
should have discretion concerning whether to assume the truth of the
factual allegations contained in the FAA's emergency orders. AOPA
agrees with the proposal that law judges may consider evidence a
respondent submits in challenging an emergency order.
The National Air Transportation Association (NATA) also commented
on the NPRM. As with the ANPRM, NATA is in favor of eliminating the
``assuming the truth'' standard of review concerning the emergency
status of cases. NATA asserts no statute requires this standard of
review, nor does any legislative history indicate this standard is
necessary. NATA contends emergency actions, and deferential review of
them, are fundamentally unfair, and asserts emergency actions must be
subject to ``meaningful review'' by an ``impartial and independent
body.'' NATA suggests the NTSB impose a rebuttable presumption standard
concerning emergency challenges. In particular, the comment states:
[w]hile NATA strongly believes that the NTSB should create no
presumption with regard to the FAA's factual allegations, NATA
believes that a rebuttable presumption standard is the absolute
minimum review standard necessary to provide to the NTSB at least
some argument that it is providing due process, appropriate checks
and balances and the type of meaningful, impartial and independent
review of FAA's emergency determination that Congress intended.
NATA asserts the requirement to defer to the FAA's interpretation of
the Federal Aviation Regulations (as required by 49 U.S.C.
44709(d)(3)),\2\ combined with the ``assuming the truth'' standard,
results in too much deference to the FAA. NATA also believes the law
judges would not grant a challenge to the FAA's emergency action even
when the respondent presents evidence indicating the factual
allegations are not true, as a result of the deferential standard of
review.
---------------------------------------------------------------------------
\2\ The Pilot's Bill of Rights removes the requirement that the
Board defer to the FAA's interpretation of the Federal Aviation
Regulations.
---------------------------------------------------------------------------
The National Business Aviation Association (NBAA) submitted a
comment identical to that of NATA.
The Aeronautical Repair Station Association (ARSA) also submitted a
comment expressing disagreement with the intent not to remove the
``assuming the truth'' standard of review applicable to emergency
cases. ARSA contends the FAA's authority to issue an emergency order
remains unchecked, and the ``assuming the truth'' standard
``effectively swallows the rule'' because it renders review of
petitions challenging emergency status meaningless. ARSA asserts an
emergency order should be used sparingly, because the effect of such an
order is severe.
Carstens and Cahoon, LLP, submitted a brief comment concurring with
the proposal to retain the ``assuming the truth'' standard, as it is
``in full accord with 49 U.S.C. 44709(e).'' The commenter also agrees
with the proposed rule to permit respondents to present evidence
challenging the emergency nature of the case, as this proposal
``provides both sides with fairness and justice for the purpose of the
limited review by the law judge of the FAA's emergency determination.''
The Transport Workers Union of America (TWU) commented concerning
the standard of review of the emergency status of cases. TWU
acknowledges the need for some deference to the FAA's factual
allegations, given the fact that a challenge concerning the emergency
status is limited in scope and cannot consist of litigating the merits
of the case. As with its response to the ANPRM, TWU again suggests
adoption of a less deferential standard of review than the current
``assuming the truth'' standard. TWU analogizes its proposed review of
FAA emergency cases to Federal courts' review of temporary restraining
orders or preliminary injunctionsto require the FAA to show a
substantial likelihood of success on the merits.\3\ TWU notes other
Federal agencies apply this ``substantial likelihood of success''
standard when determining whether to grant a stay of a case.\4\
---------------------------------------------------------------------------
\3\ As TWU notes in its comment, review of a ``traditional
stay'' consists of a four-part test: (1) Likelihood that the party
seeking action would prevail on the merits to any challenge sought;
(2) the aggrieved party would suffer irreparable harm in the absence
of a stay; (3) other interested parties would not be substantially
harmed by a stay; and (4) the public interest supports the granting
of a stay. Washington Metro Area Transit Comm'n v. Holiday Tours,
Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). TWU's comment also cited a
Surface Transportation Board decision for this standard: Eighteen
Thirty Group LLC--Acquisition Exemption--in Allegheny County, MD,
STB FD 35438, 2010 WL 4639505.
\4\ TWU cited a Surface Transportation Board (STB) case,
Eighteen Thirty Group LLC--Acquisition Exemption in Allegheny
County, MD, STB FD 35438, 2010 WL 4639505, in which the STB
determined whether to grant a motion to stay their decision. TWU's
comment also included citations to two cases from the District of
Columbia Court of Appeals that addressed organizations' petitions to
agencies for injunctions.
---------------------------------------------------------------------------
The Aviation Law Firm submitted a comment discussing the proposed
changes regarding emergency cases. The commenter recommends the NTSB
change the permissive language of ``should permit evidence, if
appropriate'' within Sec. 821.54(e) to say ``shall permit evidence.''
The Aviation Law Firm contends such a change would provide sufficient
clarity that law judges will consider evidence a petitioner submits.
The FAA Whistleblowers Alliance submitted a brief comment stating
the FAA misuses its authority to issue emergency orders. The comment
indicates the organization agrees with this rulemaking activity
concerning review of emergency orders.
2. Changes
The NTSB carefully reviewed all comments regarding procedures
applicable to emergency cases. As indicated above, the FAA is
authorized, under 49 U.S.C. 44709(e)(2), to issue orders amending,
modifying, suspending, or revoking certificates issued on an
``emergency'' basis. In 2000, AIR-21 amended 49 U.S.C. 44709 to grant
the NTSB authority to review such emergency determinations. In
particular, section 44709(e)(3) and (4) states:
(3) Review of emergency order.--A person affected by the
immediate effectiveness of the Administrator's order under paragraph
(2) may petition for a review by the Board, under procedures
promulgated by the Board, of the Administrator's determination that
an emergency exists. Any such review shall be requested not later
than 48 hours after the order is received by the person. If the
Board finds that an emergency does not exist that requires the
immediate application of the order in the interest of safety in air
commerce or air transportation, the order shall be stayed,
notwithstanding paragraph (2). The Board shall dispose of a review
request under this paragraph not later than 5 days after the date on
which the request is filed.
(4) Final disposition.--The Board shall make a final disposition
of an appeal under subsection (d) not later than 60 days after the
date on which the appeal is filed.
In order to implement these statutory provisions, on July 11, 2000,
the NTSB published an interim rule with a request for comments. 65 FR
42637. This interim rule amended 49 CFR part 821 by providing NTSB's
law judges with the authority to issue orders affirming or denying the
FAA's emergency determination under 49 U.S.C. 44709(e). The interim
rule directed NTSB law judges to determine whether the
[[Page 63248]]
Administrator abused his or her discretion in finding an emergency
existed under the facts alleged in the Administrator's order. The NTSB
assumed the facts to be true for the limited purpose of reviewing the
emergency determination. The NTSB incorporated the abuse of discretion
standard of review that had been set forth in Nevada Airlines v. Bond,
622 F.2d 1017 (9th Cir. 1980).\5\ Courts have since upheld the
``arbitrary and capricious, an abuse of discretion, or otherwise not in
accordance with law'' standard in other cases. See Ickes v. FAA, 299
F.3d 260 (3d Cir. 2002) (citing Blackman v. Busey, 938 F.2d 659, 663
(6th Cir. 1991)); Armstrong v. FAA, 515 F.3d 1294 (D.C. Cir. 2008).
---------------------------------------------------------------------------
\5\ In Nevada Airlines, the Ninth Circuit stated as follows
concerning review of the emergency status of cases: ``[w]ithout an
administrative record or agency hearing at this stage of the
proceedings and in light of the Administrator's broad discretion, we
limit our review to determining whether the Administrator's finding
of an emergency was arbitrary and capricious, an abuse of
discretion, or otherwise not in accordance with law.'' Id. at 1020.
---------------------------------------------------------------------------
On April 29, 2003, the NTSB published the final rule altering the
standard of review for emergency determinations. 58 FR 22623. Since
2003, Sec. 821.54(e) has provided:
[w]ithin 5 days after the Board's receipt of [a petition for review
of the FAA's emergency determination], the * * * law judge * * *
shall dispose of the petition by written order, and, in so doing,
shall consider whether, based on the acts and omissions alleged in
the Administrator's order, and assuming the truth of such factual
allegations, the Administrator's emergency determination was
appropriate under the circumstances, in that it supports a finding
that aviation safety would likely be compromised by a stay of the
effectiveness of the order during the pendency of the respondent's
appeal.
This standard, therefore, was a departure from the more stringent
standard the courts affirmed.
In the 2010 ANPRM, the NTSB revisited this standard of review,
requesting comments. 75 FR 80452-01 (Dec. 22, 2010). In the ANPRM, the
NTSB reminded parties Sec. 821.54(e) does not explicitly state the
allegations of the FAA's complaint are ``deemed true,'' but instead
uses the word ``assum[ed].'' The NTSB modeled this language after
subsection (b) of the Board's Stale Complaint Rule, codified at 49 CFR
821.33.
In the 2012 NPRM, the NTSB did not propose changing this ``assuming
the truth'' standard of review. The NTSB concluded that a challenge to
an emergency determination should not be an opportunity to contest the
factual allegations underlying the certificate action. This
determination simply is the result of the statutory time constraints
applicable to emergency cases.
If the NTSB held a hearing for every petition challenging the
emergency status of a case, it could not fulfill its obligation to rule
on the merits of the case within the statutorily required 60-day time
frame. A commenter's suggestion to utilize telephonic hearings for
emergency cases demonstrates an understanding of this predicament. The
NTSB carefully considered alternatives to the ``assuming the truth''
standard, especially in light of the comments received in response to
both the ANPRM and the NPRM, and determined it simply cannot issue a
ruling on a petition challenging the emergency status of a case within
5 days if the NTSB holds a hearing.
The NTSB currently does not have the resources to hold hearings on
petitions contesting emergency determinations, given the expedited time
frame. Scheduling a time in which the parties are available to
participate in a hearing, securing a space for the hearing, and
ensuring a law judge is available for the hearing, would all be
difficult to accomplish within 5 days. These considerations are only
applicable to the scheduling of the hearing. Issuing a well-reasoned
decision following the receipt of evidence and testimony from a hearing
would require additional time.
Moreover, the NTSB only has four administrative law judges, all of
whom are responsible for holding hearings across all 50 states, the
District of Columbia, and Puerto Rico. Consistent with Sec. 821.37(a),
the NTSB holds hearings at the most convenient locations for the
parties. The NTSB generally refrains from conducting telephonic
hearings at which the NTSB's law judges must make factual
determinations, because the law judges' ability to assess the
credibility of witnesses at such hearings is greatly diminished.
Additionally, the four-prong standard applicable to preliminary
injunctions or temporary restraining orders is similar to the manner in
which NTSB law judges currently handle emergency challenges. By policy,
the FAA attaches to each emergency order a document outlining the
reason the FAA believes emergency treatment of the case is necessary.
Under the Pilot's Bill of Rights, the FAA is now required to also
provide a copy of releasable portions of the EIR to each respondent. In
the document providing the FAA's justification for pursuing the case as
an emergency, the FAA articulates the public interest at stake, which
is akin to a showing of how irreparable harm would ensue if it could
not proceed with the case as an emergency. The FAA's statement also
contains a factual summary as to why the FAA would prevail on the
merits, and why the FAA believes the public interest supports
proceeding under our emergency rules. Federal courts, in applying the
four-part preliminary injunction or temporary stay standard, must weigh
the facts in a similar manner. For example, in such cases, they do not
have time for a trial on the merits of the case wherein they apply a
preponderance of the evidence standard. Instead, the courts must weigh
the facts in favor of the party seeking action in analyzing the four
prongs to determine whether short-term, immediate legal action is
appropriate. The NTSB law judges' review of emergency challenges is
similar to this analysis.
For the reasons set forth above, the NTSB retains the ``assuming
the truth'' standard of review in Sec. 821.54(e). However, the NTSB
will also consider this analysis anew in light of any petition for
rulemaking, that includes novel suggestions or points not previously
articulated.
Finally, the NTSB adopts the suggestion from the Aviation Law Firm,
recommending a change in the language of Sec. 821.54(e) to state the
law judge ``shall'' consider evidence a respondent submits in
challenging the FAA's decision to proceed with a case as an emergency.
The NTSB also adds the phrase ``if appropriate'' to the sentence, to
ensure parties are aware the law judge ultimately makes the
determination as to whether the evidence the respondent submits is
relevant to the emergency determination. Therefore, this portion of
Sec. 821.54(e) will now read, ``* * * the law judge is not so limited
to the order's factual allegations themselves, but also shall permit
evidence, if appropriate, pertaining to the propriety of the emergency
determination * * *.''
B. Electronic Filing of Documents
1. Comments Received
Several parties commented on the proposed changes to allow for
electronic submission of documents. All commenters generally concur
with permitting electronic submission. AOPA agrees with the move toward
an electronic filing system by accepting documents via electronic mail,
and stated it also agrees with the proposal to continue receiving
documents by facsimile or postal mail, as not all respondents may have
access to electronic mail. NBAA and NATA, however, both suggest
creation of an electronic docketing system, such as the
[[Page 63249]]
Federal courts' Public Access to Court Electronic Records (PACER)
system. They indicate electronic docketing would provide for the
timeliest and most efficient means of allowing parties to receive
documents, and therefore provide a ``level playing field'' for both
parties. ALPA's comment states it agrees with the proposed changes to
allow for electronic submission of documents.
The Aviation Law Firm suggests an allowance for electronic
submission of documents in emergency cases. Therefore, it proposes an
amendment to Sec. 821.54(b), to provide a respondent challenging the
emergency status of an emergency order to file his or her petition via
electronic mail.
The FAA also agrees with the proposal to allow for electronic
submission of documents, and offered several suggestions. With regard
to Sec. 821.7, the FAA suggests adding the following sentence to
subsections (a)(1) and (a)(2) of the regulation, to simplify it:
``Paragraph (3) provides the acceptable methods for filing documents
under this provision.'' As for subsection (a)(3), the FAA suggests the
NTSB not adopt the proposed rule stating, ``Documents filed by
electronic mail must be signed and transmitted in a commonly accepted
format, such as Adobe Portable Document Format (PDF),'' and instead
adopt the following language: ``Documents filed by electronic mail must
be signed and transmitted in accordance with the procedures established
by the Board for accepting electronically filed documents, which can be
found at [reference Web site where procedures can be found].'' The FAA
suggests this amendment to provide the NTSB with flexibility in the
future to alter the procedures as technology changes. The FAA's comment
states that if the NTSB adopts this approach, the language in Sec.
821.52 could be changed to clarify whether parties may submit documents
in emergency cases via electronic mail.
The FAA also suggests clarification as to whether parties must file
the ``originally signed document'' in addition to the copy received via
facsimile or electronic mail. The FAA states, ``[a]s currently drafted,
it appears that no hard copy needs to follow if a document is filed by
facsimile or email.'' The FAA suggests requiring a hard copy submission
in addition to facsimile or electronic mail submission, to ``ensure the
NTSB is aware of the filing and that technical glitches do not
undermine an otherwise timely and intended filing.'' The FAA also
recommends establishing an automatic receipt to be transmitted in
response to electronic mail filings.
With regard to the proposed change to Sec. 821.8(b), which would
require a party serve any other party by any method prescribed in Sec.
821.7(a)(3), and allow a party the option of receiving service via
electronic mail only, the FAA recommends clarifying this section by
stating whether parties must also serve a hard copy of the document.
The FAA states the reference to Sec. 821.7(a)(3) creates this
ambiguity. In response, the FAA recommends explicitly requiring, ``as a
general matter,'' that any party serving a document by electronic mail
or facsimile also serve a hard copy, to ensure the other party receives
the document.
Finally, the FAA, like the Aviation Law Firm, questions why service
via electronic mail is not permitted for emergency cases. The FAA
recommends allowing electronic service of documents in the initial
proceedings before the law judges. Several other commenters also
recommend allowing electronic submission of documents in emergency
cases.
2. Changes
As stated above, all commenters approve of the concept of
permitting electronic filing in emergency cases. Given the time
constraints applicable to emergency cases, the NTSB has determined
adopting such a requirement would be advantageous to all parties. For
this reason, the NTSB herein adopts the requirement for emergency cases
as well as cases that proceed on the normal case disposition timeline.
This change involves deleting references to expedited filing in Sec. s
821.54(b) and (c), and 821.57(b). Additionally, the change requires
adding a new subsection within Sec. 821.52 to clarify electronic
submission of documents is permissible in emergency cases.
The NTSB has determined the FAA's suggestion to provide a reference
to the NTSB public Web site for a listing of procedures for electronic
filing is advantageous. Such an approach will provide the NTSB with the
flexibility to accommodate technological changes. In addition, listing
procedures on the NTSB public Web site will be helpful as the NTSB
seeks to design, build and utilize a robust electronic docketing system
for enforcement cases. As a result, the NTSB adopts this change, and
notes these procedures will be available on the NTSB Web site after
publication of this final rule, but before its effective date.
Finally, the NTSB intends to provide in its online electronic
filing procedures additional clarifications concerning Sec.
821.8(d)(3), in which the following language was proposed: ``[We will
presume lawful service] when a document is transmitted by facsimile or
electronic mail and there is evidence to confirm its successful
transmission to the intended recipient.'' By this change, the NTSB
encourages parties filing via electronic mail to keep a copy of the
transmission from their ``sent mail'' file. With an electronic
docketing system, the NTSB may have the ability in the future to
provide a fill-able electronic Web page that automatically generates an
electronic ``receipt'' for documents.
Some commenters urge the NTSB to implement a robust electronic
docketing system, such as the Federal courts' PACER system. The NTSB is
currently in the process of gathering requirements and working with a
contractor to design a system for the NTSB's docketing and electronic
filing needs. The NTSB intends to develop and implement such a
docketing system; however, this process may take some time, due to
resource and fiscal constraints.
C. Rules Concerning the EAJA (49 CFR part 826)
1. Comments Received
Several commenters address the proposed change to Sec. 821.12(b),
which addressed the FAA's voluntary withdrawal of a complaint. The
proposed language stated: ``The law judge may accept arguments from the
parties on the issue of whether a dismissal resulting from the
withdrawal of a complaint should be deemed to occur with or without
prejudice.'' As explained in the preamble of the NPRM, the issue of
dismissal with or without prejudice is directly relevant to whether a
party has achieved ``prevailing party'' status under the EAJA.
Some commenters, such as NATA and NBAA, indicate they have ``no
objection'' to the proposed change in Sec. 821.12(b). The Aviation Law
Firm suggests changing the word ``may'' to ``shall,'' to require law
judges to accept arguments on the issue of dismissal with or without
prejudice. The comment from the Aviation Law Firm includes a summary of
recent cases concerning the EAJA. In particular, in the case of Green
Aviation Management Co., LLC v. Federal Aviation Administration, 676
F.3d 200 (DC Cir. 2012), the DC Circuit indicated the with-or-without-
prejudice prong of the three-prong test articulated in District of
Columbia v. Straus, 590 F.3d 898 (DC Cir. 2010), is indeed an important
consideration. In Green, the District of Columbia Circuit Court of
Appeals held the applicant was the prevailing party because the law
judge dismissed the
[[Page 63250]]
complaint with prejudice. Green, 676 F.3d at 204-205. Because this
prong is such an important consideration, the Aviation Law Firm
suggests the NTSB rules state law judges ``shall'' consider arguments
concerning whether they should dismiss a case with prejudice when the
FAA withdraws the complaint.
The FAA's comment states the proposed addition to Sec. 821.12(b)
lacks clarity, because the rule also states the law judge's approval is
not necessary ``in the case of a petition for review, an appeal to the
Board, a complaint, or an appeal from the law judge's initial decision
or appealable order.'' Therefore, the FAA indicates the proposed change
implies approval from a law judge is necessary to allow the FAA to
withdraw a complaint. The FAA's comment suggests if this implication is
correct, then the NTSB should specify ``such withdrawal must be by
motion of the party.'' The FAA suggests the following concerning such a
motion: (1) The motion state why the moving party is requesting
withdrawal; (2) the motion state whether the moving party is requesting
dismissal with prejudice; and (3) the motion state whether the non-
moving party consents to the motion. The FAA also suggests stating that
the law judges will summarily grant uncontested motions to withdraw
without prejudice.
The FAA also suggests a change to part 826. The comment recommends
changing the formula in Sec. 826.6(b)(1) to the following: X/$125 per
hour = CPI--NEW/CPI--1996. The FAA states the formula in the current
rule is outdated and results in a higher cap on fees.
AOPA agrees with the proposed change to Sec. 821.12(b). AOPA's
comment, however, addresses a different aspect of the EAJA: the time
for which an EAJA applicant may recover fees. With an extensive amount
of research cited in its comment, AOPA contends the NTSB should allow
an applicant to petition for fees and expenses incurred prior to the
commencement of the applicant's appeal. AOPA states applicants and
their representatives often expend time and resources in preparation
for a defense prior to filing an appeal.
2. Changes
The majority of the comments regarding the EAJA focused on Sec.
821.12(b), involving dismissal of the complaint with or without
prejudice. As stated in the NPRM, this issue is a critical
consideration in determining whether a party is the ``prevailing
party'' for purposes of the EAJA. The NTSB understands the comment from
the Aviation Law Firm, wherein it suggests inclusion of the word
``shall,'' to require the law judges to consider parties' arguments
concerning whether to dismiss a case with prejudice. The NTSB initially
chose to include the word ``may'' in the proposed language to
acknowledge parties were not required to make such arguments. If
parties are silent on the issue, then the law judges would not consider
such arguments. The NTSB does not want to penalize parties who do not
present any arguments on the issue of whether the law judge should
dismiss with prejudice. As a result, the NTSB amends the proposed
language to include the word ``shall,'' in conjunction with the phrase,
``if offered.''
The FAA's comment on the issue of dismissal with prejudice was
helpful. The NTSB believes the clearest way to address the issue of
dismissal with prejudice is to require a motion to dismiss in light of
the FAA's withdrawal of a complaint. As a result, the NTSB changes the
language in Sec. 821.12(b) to require dismissals based on withdrawals
of complaints to occur only on oral or written motion.
The FAA's comment also recommends updating the formula for the
calculation of the cap on the maximum hourly rate for attorney's fees
under the EAJA, found at 49 CFR 826.6(b)(1). The NTSB did not propose
such a change or solicit comments concerning this calculation in either
the ANPRM or the NPRM. As a result, the NTSB declines to consider this
change in the current rulemaking.
Likewise, AOPA submitted a comment urging the NTSB to change the
EAJA rules to allow a respondent to recover fees from the time he or
she begins preparing the defense (i.e., once the respondent becomes
aware of the investigation). As with the FAA's suggestion regarding the
calculation for the cap of fees under the EAJA, the NTSB did not
propose a change or solicit comments regarding when to permit recovery
of fees to commence. As a result, the NTSB declines to consider this
change in the current rulemaking.
If the FAA, AOPA, or any other commenter wishes the NTSB to
consider making changes to these rules under the EAJA, they may
petition for a new rulemaking.
D. Miscellaneous Technical Changes
1. Comments Received
The majority of the comments concur with the miscellaneous
technical changes. The FAA provided several suggested changes to the
proposed language in this category. Concerning Sec. 821.8(d) (entitled
``service of documents''), the NTSB proposed to add a new subsection
(3), to presume lawful service ``[w]hen a document is transmitted by
facsimile or electronic mail and there is evidence to confirm its
successful transmission to the intended recipient.''
With regard to Sec. 821.64(b) (entitled ``judicial review''), the
NTSB proposed adding the following language: ``[n]o request for a stay
pending judicial review will be entertained unless it is served on the
Board within 20 days after the date of service of the Board's order.
The Administrator may, within 2 days after the date of service of such
a motion, file a reply thereto.'' The FAA's comment notes the NTSB
based this change on the incorrect presumption that only a respondent
would seek a stay. The FAA contends there may be times when the FAA
needs to file a motion for a stay, and therefore recommends adopting
party-neutral language in the rule (such as ``moving party'' and ``non-
moving party''). The FAA also believes it is unreasonable to allow the
non-moving party only 2 days to file a reply to the motion for stay,
when the moving party has 20 days. In this regard, the FAA suggests
permitting the moving party 10 days from the date of service of the
Board's order to file a motion for stay, and allow the non-moving party
10 days to submit a reply to the motion.
2. Changes
In response to the FAA's suggestions regarding motions for stays,
the NTSB herein amends the language in 821.64(b) to ensure it is party-
neutral. The FAA also suggests altering the timeframe to allow the
moving party 10 days to file a motion for stay, and the non-moving
party an additional 10 days to reply to the motion. The NTSB considered
this suggestion, and believes the most reasonable and fair filing
timeframe is as follows: a party may file a motion for stay within 15
days of the date of service of the Board's order, and the non-moving
party may reply to the motion within 5 days of the date of service of
the motion for stay. The NTSB adopts this change, as it will ensure the
NTSB does not encounter a situation in which a party files a motion for
stay on the 29th day following service of the Board's order, but still
provides sufficient time for a party to submit the motion. Likewise,
the NTSB believes a 5-day timeframe to reply following service of the
motion is reasonable.
Finally, ARSA suggests an alteration to the language in the stale
complaint rule (codified at 49 CFR 821.33), to shift
[[Page 63251]]
the burden to the FAA in response to a respondent's motion to dismiss
based on the stale complaint rule. Specifically, ARSA suggests changing
the rule to require the FAA to reply within 15 days of a motion to
dismiss based on the stale complaint rule, and to require the reply
show good cause existed for the FAA's delay, or that public interest
warrants imposition of the sanction, notwithstanding the delay. The
NTSB did not propose a change or request comments concerning the stale
complaint rule. Therefore, as indicated above, the NTSB will not
attempt to issue such a change herein.
For the foregoing reasons, the NTSB finalizes the language of 49
CFR parts 821 and 826 as set forth below.
III. Regulatory Analyses
In the NPRM, the NTSB included a regulatory analyses section
concerning various Executive Orders and statutory provisions. The NTSB
did not receive any comments concerning the results of these analyses.
The NTSB again notes the following concerning such Executive Orders and
statutory provisions.
This final rule is not a significant regulatory action under
Executive Order 12866. Therefore, Executive Order 12866 does not
require a Regulatory Assessment. As such, the Office of Management and
Budget (OMB) has not reviewed this proposed rule under Executive Order
12866. In addition, on July 11, 2011, the President issued Executive
Order 13579, ``Regulation and Independent Regulatory Agencies,'' 76 FR
41587, July 14, 2011). Section 2(a) of the Executive Order states:
Independent regulatory agencies ``should consider how best to
promote retrospective analysis of rules that may be outmoded,
ineffective, insufficient, or excessively burdensome, and to modify,
streamline, expand, or repeal them in accordance with what has been
learned.''
76 FR at 41587.
Consistent with Executive Order 13579, the NTSB's amendments to 49
CFR parts 821 and 826 reflect its judgment that these rules should be
updated and streamlined.
This rule does not require an analysis under the Unfunded Mandates
Reform Act, 2 United States Code (U.S.C.) 1501-1571, or the National
Environmental Policy Act, 42 U.S.C. 4321-4347.
As stated in the NPRM, the NTSB has also analyzed these amendments
in accordance with the principles and criteria contained in Executive
Order 13132. Any rulemaking proposal resulting from this notice would
not propose any regulations that would: (1) Have a substantial direct
effect on the states, the relationship between the national government
and the states, or the distribution of power and responsibilities among
the various levels of government; (2) impose substantial direct
compliance costs on state and local governments; or (3) preempt state
law. Therefore, the consultation and funding requirements of Executive
Order 13132 do not apply.
The NTSB is also aware that the Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires each agency to review its rulemaking to
assess the potential impact on small entities, unless the agency
determines that a rule is not expected to have a significant economic
impact on a substantial number of small entities. The NTSB certifies
this final rule will not have a significant economic impact on a
substantial number of small entities.
Regarding other Executive Orders and statutory provisions, this
final rule also complies with all applicable standards in sections 3(a)
and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden. In addition, the
NTSB has evaluated this rule under: Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights; Executive Order 13045, Protection of Children from
Environmental Health Risks and Safety Risks; Executive Order 13175,
Consultation and Coordination with Indian Tribal Governments; Executive
Order 13211, Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use; and the National Technology
Transfer and Advancement Act, 15 U.S.C. 272 note. The NTSB has
concluded that this rule does not contravene any of the requirements
set forth in these Executive Orders or statutes, nor does this rule
prompt further consideration with regard to such requirements.
List of Subjects
49 CFR Part 821
Administrative practice and procedure, Airmen, Aviation safety.
49 CFR Part 826
Claims, Equal access to justice, Lawyers.
For the reasons discussed in the preamble, the NTSB amends 49 CFR
parts 821 and 826 as follows:
PART 821--RULES OF PRACTICE IN AIR SAFETY PROCEEDINGS
0
1. The authority citation for 49 CFR part 821 is revised to read as
follows:
Authority: 49 U.S.C. 1101-1155, 44701-44723, 46301, Pub. L. 112-
153, unless otherwise noted.
0
2. In Sec. 821.6, revise paragraphs (b) and (d) to read as follows:
Sec. 821.6 Appearances and rights of witnesses.
* * * * *
(b) Any person appearing in any proceeding governed by this part
may be accompanied, represented and advised, and may be examined by,
his or her own counsel or representative.
* * * * *
(d) Any party to a proceeding who is represented by an attorney or
representative shall, in a separate written document, notify the Board
of the name, address and telephone number of that attorney or
representative. In the event of a change in representation or a
withdrawal of representation, the party shall immediately, in a
separate written document, notify the Board (in the manner provided in
Sec. 821.7) and the other parties to the proceeding (pursuant to Sec.
821.8), before the new attorney or representative may participate in
the proceeding in any way. Parties, and their attorneys and
representatives, must notify the Board immediately of any changes in
their contact information.
0
3. In Sec. 821.7, revise paragraphs (a), (e), and (f) to read as
follows:
Sec. 821.7 Filing of documents with the Board.
(a) Filing address, method and date of filing. (1) Except as
provided in paragraph (a)(2) of this section, documents are to be filed
with the Office of Administrative Law Judges, National Transportation
Safety Board, 490 L'Enfant Plaza East SW., Washington, DC 20594, and
addressed to the assigned law judge, if any. If the proceeding has not
yet been assigned to a law judge, documents shall be addressed to the
Case Manager. Paragraph (a)(3) of this section provides the acceptable
methods for filing documents under this provision.
(2) Subsequent to the filing of a notice of appeal with the Office
of Administrative Law Judges from a law judge's initial decision or
appealable order, the issuance of a decision permitting an
interlocutory appeal, or the expiration of the period within which an
appeal from the law judge's initial decision or appealable order may be
filed, all documents are to be filed with the Office of General
Counsel, National Transportation Safety Board, 490 L'Enfant Plaza East
SW., Washington, DC 20594. Paragraph (a)(3)
[[Page 63252]]
of this section provides the acceptable methods for filing documents
under this provision.
(3) Documents shall be filed: By personal delivery, by U.S. Postal
Service first-class mail, by overnight delivery service, by facsimile
or by electronic mail as specified on the ``Administrative Law Judges''
Web page on the NTSB's public Web site. Documents filed by electronic
mail must be signed and transmitted as specified on the
``Administrative Law Judges'' Web page on the NTSB's public Web site.
(4) Documents shall be deemed filed on the date of personal
delivery; on the send date shown on the facsimile or the item of
electronic mail; and, for mail delivery service, on the mailing date
shown on the certificate of service, on the date shown on the postmark
if there is no certificate of service, or on the mailing date shown by
other evidence if there is no certificate of service and no postmark.
Where the document bears a postmark that cannot reasonably be
reconciled with the mailing date shown on the certificate of service,
the document will be deemed filed on the date of the postmark.
* * * * *
(e) Subscription. The original of every document filed shall be
signed by the filing party, or by that party's attorney or
representative.
(f) Designation of person to receive service. The initial document
filed by a party in a proceeding governed by this part, and any
subsequent document advising the Board of any representation or change
in representation of a party that is filed pursuant to Sec. 821.6(d),
shall show on the first page the name, address and telephone number of
the person or persons who may be served with documents on that party's
behalf.
* * * * *
0
4. In Sec. 821.8, revise paragraphs (a), (b)(1), (c), (d), and (e) to
read as follows:
Sec. 821.8 Service of documents.
(a) Who must be served. (1) Copies of all documents filed with the
Board must be simultaneously served on (i.e., sent to) all other
parties to the proceeding, on the date of filing, by the person filing
them. A certificate of service shall be a part of each document and any
copy or copies thereof tendered for filing, and shall certify
concurrent service on the Board and the parties. A certificate of
service shall be in substantially the following form:
I hereby certify that I have this day served the foregoing
[specify document] on the following party's counsel or designated
representatives [or party, if without counsel or representative], at
the address indicated, by [specify the method of service (e.g.,
first-class mail, electronic mail, personal service, etc.)] [List
names and addresses of all persons served] Dated at ------this----
day of---------- 20-- (Signature)---------- For (on behalf of)------
----
(2) Service shall be made on the person designated in accordance
with Sec. 821.7(f) to receive service. If no such person has been
designated, service shall be made directly on the party. (b) Method of
Service. (1) Service of documents by any party on any other party shall
be accomplished by any method prescribed in Sec. 821.7(a)(3) for the
filing of documents with the Board. A party may waive the applicability
of this paragraph, and elect to be served with documents by the other
parties to the proceeding solely by electronic mail, by filing a
written document with the Board (with copies to the other parties)
expressly stating such a preference.
* * * * *
(c) Where service shall be made. Except for electronic mail,
personal service, parties shall be served at the address appearing in
the official record, which the Board must receive under Sec. Sec.
821.6(d) and 821.7(f). In the case of an agent designated by an air
carrier under 49 U.S.C. 46103, service may be accomplished only at the
agent's office or usual place of residence.
(d) Presumption of service. There shall be a presumption of lawful
service:
(1) When receipt has been acknowledged by a person who customarily
or in the ordinary course of business receives mail at the residence or
principal place of business of the party or of the person designated
under Sec. 821.7(f);
(2) When a properly addressed envelope, sent to the most current
address in the official record, by regular, registered or certified
mail, has been returned as unclaimed or refused; or
(3) When a document is transmitted by facsimile or electronic mail
and there is evidence to confirm its successful transmission to the
intended recipient.
(e) Date of service. The date of service shall be determined in the
same manner as the filing date is determined under Sec. 821.7(a)(4).
0
5. In Sec. 821.12, revise paragraph (b) to read as follows:
Sec. 821.12 Amendment and withdrawal of pleadings.
* * * * *
(b) Withdrawal. Except in the case of a petition for review, an
appeal to the Board, a complaint, or an appeal from a law judge's
initial decision or appealable order, pleadings may be withdrawn only
upon approval of the law judge or the Board. The law judge may dismiss
the case after receiving a motion to dismiss based on withdrawal of the
complaint. The law judge shall accept arguments or motions, oral or
written, from the parties, if offered, on the issue of whether a
dismissal resulting from the withdrawal of a complaint should be deemed
to occur with or without prejudice.
0
6. In Sec. 821.35, revise paragraph (b)(10) to read as follows:
Sec. 821.35 Assignment, duties and powers.
* * * * *
(b) * * *
(10) To issue initial decisions and dispositional orders.
* * * * *
0
7. In Sec. 821.50, revise paragraph (c) to read as follows:
Sec. 821.50 Petition for rehearing, reargument, reconsideration or
modification of an order of the Board.
* * * * *
(c) Content. The petition shall state briefly and specifically the
matters of record alleged to have been erroneously decided, and the
ground or grounds relied upon. If the petition is based, in whole or in
part, upon new matter, it shall set forth such new matter and shall
contain affidavits of prospective witnesses, authenticated documents,
or both, or an explanation of why such substantiation is unavailable,
and shall explain why such new matter could not have been discovered in
the exercise of due diligence prior to the date on which the
evidentiary record closed. To the extent the petition is not based upon
new matter, the Board will not consider arguments that could have been
made in the appeal or reply briefs received prior to the Board's
decision.
* * * * *
0
8. In Sec. 821.52, add paragraph (e) to read as follows:
Sec. 821.52 General.
* * * * *
(e) Acceptable methods of filing and service. All documents
submitted by a party in a proceeding governed by this subpart must be
filed with the Board by overnight delivery, facsimile or electronic
mail, and simultaneously served on all other parties by the same means.
If filing by electronic mail, parties must adhere to the requirements
in Sec. 821.7(a)(3).
0
9. In Sec. 821.54, paragraphs (b), (c), and (e) to read as follows:
Sec. 821.54 Petition for review of Administrator's determination of
emergency.
* * * * *
[[Page 63253]]
(b) Form, content and service of petition. The petition may be in
letter form. A copy of the Administrator's order, from which review of
the emergency determination is sought, must be attached to the
petition. If a copy of the order is not attached, the petition will be
dismissed. While the petition need only request that the Board review
the Administrator's determination as to the existence of an emergency
requiring the order be effective immediately, it may also enumerate the
respondent's reasons for believing that the Administrator's emergency
determination is not warranted in the interest of aviation safety. The
respondent may include attachments to the petition for review (e.g.,
affidavits, other documents or records) limited to evidence the
respondent believes supports the reasons enumerated in the petition for
why the Administrator's emergency determination is not warranted in the
interest of aviation safety.
(c) Reply to petition. If the petition enumerates the respondent's
reasons for believing that the Administrator's emergency determination
is unwarranted, the Administrator may, within 2 days after the date of
service of the petition, file a reply, which shall be strictly limited
to matters of rebuttal. No submissions other than the respondent's
petition and the Administrator's reply in rebuttal will be accepted,
except in accordance with paragraph (d) of this section.
* * * * *
(e) Disposition. Within 5 days after the Board's receipt of the
petition, the chief law judge (or, if the case has been assigned to a
law judge other than the chief law judge, the law judge to whom the
case is assigned) shall dispose of the petition by written order, and,
in so doing, shall consider whether, based on the acts and omissions
alleged in the Administrator's order, and assuming the truth of such
factual allegations, the Administrator's emergency determination was
appropriate under the circumstances, in that it supports a finding that
aviation safety would likely be compromised by a stay of the
effectiveness of the order during the pendency of the respondent's
appeal. In making this determination, however, the law judge is not so
limited to the order's factual allegations themselves, but also shall
permit evidence, if appropriate, pertaining to the propriety of the
emergency determination, presented by the respondent with the petition
and the Administrator with the reply to the petition. This evidence can
include affidavits or other such records.
* * * * *
0
10. In Sec. 821.55, revise paragraph (a) to read as follows:
Sec. 821.55 Complaint, answer to complaint, motions and discovery.
(a) Complaint. In proceedings governed by this subpart, the
Administrator's complaint shall be filed and simultaneously served on
the respondent within 3 days after the date on which the Administrator
received the respondent's appeal, or within 3 days after the date of
service of an order disposing of a petition for review of an emergency
determination, whichever is later.
* * * * *
0
11. In Sec. 821.57, revise paragraphs (b) and (c) to read as follows:
Sec. 821.57 Procedure on appeal.
* * * * *
(b) Briefs and oral argument. Each appeal in proceedings governed
by this subpart must be perfected, within 5 days after the date on
which the notice of appeal was filed, by the filing, and simultaneous
service on the other parties, of a brief in support of the appeal. Any
other party to the proceeding may file a brief in reply to the appeal
brief within 7 days after the date on which the appeal brief was served
on that party. A copy of the reply brief shall simultaneously be served
on the appealing party and any other parties to the proceeding. Aside
from the time limits specifically mandated by this paragraph, the
provisions of Sec. Sec. 821.7(a)(3) and 821.48 shall apply.
(c) Issues on appeal. The provisions of Sec. 821.49(a) and (b)
shall apply in proceedings governed by this subpart.
* * * * *
0
12. In Sec. 821.64, revise paragraph (b) to read as follows:
Sec. 821.64 Judicial Review.
* * * * *
(b) Stay pending judicial review. No request for a stay pending
judicial review will be entertained unless it is served on the Board
within 15 days after the date of service of the Board's order. The non-
moving party may, within 5 days after the date of service of such a
motion, file a reply thereto.
PART 826--RULES IMPLEMENTING THE EQUAL ACCESS TO JUSTICE ACT OF
1980
0
13. The authority citation for 49 CFR part 826 continues read as
follows:
Authority: Section 203(a)(1) Pub. L. 99-80, 99 Stat. 186 (5
U.S.C. 504).
0
14. Revise Sec. 826.1 to read as follows:
Sec. 826.1 Purpose of these rules.
The Equal Access to Justice Act, 5 U.S.C. 504 (the Act), provides
for the award of attorney fees and other expenses to eligible
individuals and entities who are parties to certain administrative
proceedings (adversary adjudications) before the National
Transportation Safety Board. An eligible party may receive an award
when it prevails over the Federal Aviation Administration (FAA), unless
the FAA's position in the proceeding was substantially justified or
special circumstances make an award unjust. The rules in this part
describe the parties eligible for awards and the proceedings that are
covered. They also explain how to apply for awards, and the procedures
and standards this Board will use to make them. As used hereinafter,
the term ``Administrator'' refers to the Administrator of the FAA.
0
15. Revise Sec. 826.40 to read as follows:
Sec. 826.40 Payment of award.
Within 5 days of the Board's service of a final decision granting
an award of fees and expenses to an applicant, the Administrator shall
transmit to the applicant instructions explaining how the applicant may
obtain the award. These instructions may require, but are not limited
to, the submission of the following information to the Administrator: a
statement that the applicant will not seek review of the decision in
the United States courts, bank routing numbers to which the
Administrator may transmit payment, and the applicant's tax
identification or Social Security number. The Administrator will pay
the applicant the amount awarded within 60 days of receiving the
necessary information from the applicant, unless judicial review of the
award or of the underlying decision of the adversary adjudication has
been sought by the applicant or any other party to the proceeding.
Deborah A.P. Hersman,
Chairman.
[FR Doc. 2012-25400 Filed 10-15-12; 8:45 am]
BILLING CODE 7533-01-P