[Federal Register Volume 77, Number 27 (Thursday, February 9, 2012)]
[Proposed Rules]
[Pages 6760-6771]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-2278]


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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: Notice of proposed rulemaking (NPRM).

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SUMMARY: The NTSB proposes various amendments to our regulations, which 
sets forth rules of procedure for the NTSB's review of certificate 
actions taken by the Federal Aviation Administration (FAA); and 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 has carefully 
considered comments submitted in response to the ANPRM concerning these 
procedural rules. This document contains both a discussion of the 
comments and explanations for the changes proposed herein.

DATES: Send your comments on or before April 9, 2012.

ADDRESSES: You may send comments identified by Docket ID Number NTSB-
GC-2011-0001 using any of the following methods:
    Federal eRulemaking Portal: Go to http://www.regulations.gov and 
follow the instructions for sending your comments electronically.
    Mail: Send comments to NTSB Office of General Counsel, 490 L'Enfant 
Plaza East, SW., Washington, DC 20594-2003.
    Facsimile: Fax comments to 202-314-6090.
    Hand Delivery: Bring comments to 490 L'Enfant Plaza East, SW., 6th 
Floor, Washington, DC, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.
    For more information on the rulemaking process, see the 
SUPPLEMENTARY INFORMATION section of this document.
    Privacy: We will post all comments we receive, without change, to 
http://www.regulations.gov, including any personal information 
provided.

FOR FURTHER INFORMATION CONTACT: David Tochen, General Counsel, (202) 
314-6080.

SUPPLEMENTARY INFORMATION:

I. Background--Advance Notice of Proposed Rulemaking

    On December 22, 2010, the NTSB published an ANPRM inviting public 
comments concerning the NTSB procedural rules codified at 49 CFR parts 
821 and 826. 75 FR 80452. The NTSB specifically sought comments 
concerning the standard of review for emergency determinations, 
discovery and exchanges of information between parties, and electronic 
filing of documents in air safety enforcement cases before the Board. 
The NTSB also sought comments concerning outdated rules in 49 CFR part 
826, governing claims brought under the EAJA.
    The ANPRM included a discussion of the rationale for 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 \1\ 
(hereinafter, ``the Act'') amended 49 U.S.C. 44709 by granting the NTSB 
authority to review such emergency determinations. The ANPRM sought 
comments concerning this review process. Specifically, the NTSB 
described the considerations, including Federal court rulings and 
comments received in response to the NTSB's Interim Rule (published on 
July 11, 2000 (64 FR 42637), initially implementing section 716 of the 
Act) resulting in the adoption, in the Final Rule (published on April 
29, 2003 (68 FR 22623)), of the standard of review found in 49 CFR 
821.54(e). Section 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 
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.'' 75 FR at 80452-80453. The aspect of the standard relating to 
the law judges' assumption of the truth of the FAA's allegations of 
fact prompted much feedback from commenters.
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    \1\ Public Law 106-181, section 716 (2000) (codified at 49 
U.S.C. 44709(e)(3)).
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    The ANPRM also sought comments pertaining to other matters. With 
regard to discovery and the parties' exchanges of information, the 
ANPRM requested feedback as to whether law judges should routinely 
issue prehearing orders to govern discovery, and whether a standard 
sanction should apply if parties fail to comply with a prehearing order 
or discovery obligation. Id. at 80453. On the subject of the electronic 
filing of documents, the ANPRM sought comments as to how to fashion 
electronic filing rules that could apply to pro se litigants, who may 
not have computer or Internet access. Finally, with regard to 
procedural rules applicable to applications for attorney's fees and 
expenses under the EAJA, the ANPRM sought general comments concerning 
updates to outdated provisions in 49 CFR part 826. For example, the 
ANPRM cited 49 CFR 826.40, which provides incorrect contact information 
for the FAA office overseeing the payment of fee awards under the EAJA. 
Id. at 80453-80454. The language of the ANPRM indicated, however, that 
the Board welcomed all comments relating to the procedural rules found 
in 49 CFR parts 821 and 826.

II. Comments Received

    The NTSB received 20 relevant comments in response to the ANPRM, 
which are available at http://www.regulations.gov (Docket No. NTSB-GC-
2011-0001). The Board has carefully reviewed and considered all 
comments it received, and greatly appreciates the time and thought the 
commenters devoted to providing detailed comments, as the comments

[[Page 6761]]

proved helpful in analyzing the aspects of 49 CFR parts 821 and 826 
identified in the ANPRM. Our responses to the comments we received are 
included in the section below entitled ``Proposed Changes.''
    The comments received primarily focus on the first issue set forth 
above, concerning the NTSB's review of emergency determinations. Some 
comments asserted the FAA must utilize its authority to issue 
immediately effective orders taking action against a certificate, and 
that the NTSB's current rules for review of the FAA's choice of taking 
such immediately effective action are appropriate. Other comments, 
however, maintain the current standard for review of 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 certificate orders.

A. Comments in Favor of Not Changing 49 CFR 821.54(e) (Standard for 
Disposition of Petitions for Review of Emergency Determinations of the 
Federal Aviation Administration)

    The FAA Deputy Chief Counsel submitted comments urging the NTSB to 
refrain from changing the language of 49 CFR 821.54(e). The submission 
quotes the NTSB's 2003 adoption of the Final Rule for the provision, in 
which the NTSB stated as follows:

    An emergency determination is not * * * a finding or conclusion 
that easily lends itself to evidentiary proof. And the right to 
challenge an emergency determination before the Board should neither 
be seen as, nor be allowed to become, an opportunity to contest the 
factual predicate underlying the Administrator's judgment that 
considerations of aviation safety require an individual or an entity 
to be deprived of certificate privileges pending adjudication of the 
charges. The Board's rules provide a contemporaneous, expedited 
review process designed for that very purpose which must, by 
statute, be fully completed within 60 days. We are aware of no 
Congressional desire to supplant that process with the 5-day 
emergency determination review process under the Board's new rules.

68 FR 22623-22624. The FAA contends the statutory basis and overall 
Congressional mandate concerning the process for review of emergency 
determinations have not changed, and the NTSB should, therefore, not 
change 49 CFR 821.54(e). The FAA also quotes portions of the FAA 
statute wherein Congress authorized it to take immediate action when 
the Administrator believes an emergency exists relating to aviation 
safety. 49 U.S.C. 46105(c). The submission further provides that, as a 
matter of policy, the FAA adheres to publicly available criteria for 
determining whether certain circumstances amount to an emergency, under 
FAA Order 2150.3B, Ch. 6, p. 6-8, ] d (available at: http://www.faa.gov/regulations_policies/orders_notices/index.cfm/go/document.information/documentID/17213). The FAA also emphasizes, given 
the challenging time constraints of emergency cases, the NTSB does not 
have the time to engage in preliminary fact-finding in order to 
determine whether the Administrator's use of authority to pursue an 
emergency action was appropriate, and cites the Board's 60-day time 
limit for disposing of emergency cases on the merits in further support 
of this consideration.
    An FAA Aviation Safety Inspector (ASI) also submitted comments. The 
ASI's submission includes several policy reasons for the current 
emergency enforcement procedure, and states:

    The determining factor is safety, if the operator continues to 
operate in violation there is a serious problem. The only way [to] 
prevent an accident and the safety of others on the ground is to 
prevent the operator from breaking rules. The emergency action is 
the last resort to stop an operator from continuing to break rules.

The ASI's comments also summarize the internal FAA procedure through 
which an FAA Flight Standards District Office (FSDO) proceeds in an 
emergency case, and highlights FAA inspectors perception they are 
subject to a heavy burden in providing ample evidence in emergency 
cases to draft an enforcement investigation report (EIR) and initiate 
an emergency enforcement action against a certificate. Overall, the 
commenter urges the Board to maintain the current rule governing 
reviews of FAA emergency determinations.
    Another commenter, who identified himself as part of ``DOT/FAA,'' 
submitted comments similar to the previously described comments. The 
DOT/FAA commenter asserts the FAA does not abuse its authority in 
taking emergency action against a certificate, and states emergency 
cases are ``discussed at length at all levels of management'' within 
the FAA. The commenter also maintains the FAA only chooses to take 
emergency action ``when public safety is jeopardized'' and when the 
evidence shows such jeopardy.
    Another individual commenter also urges the NTSB to maintain the 
current standard of review for emergency determinations. His concise 
submission made several points, including: (1) The expedited process 
for reviewing emergency determinations ensures a certificate holder is 
not deprived of due process; (2) the certificate holder's continued 
ability to exercise certificate privileges ``must be considered in 
light of the public's far greater right to expect safety in air 
transportation;'' (3) the NTSB has found the FAA's decision to take 
emergency action valid in the vast majority of cases; and (4) the 
NTSB's mission of advancing transportation safety would be 
``jeopardized if reckless airmen are permitted to exercise the 
privileges of their certificates without fear of a swift penalty.''
    The law firm of Carstens and Cahoon submitted comments stating 
Congress never intended the language of 49 U.S.C. 44709(e) to provide 
for a separate evidentiary hearing to determine whether the FAA's 
action in emergency cases is justified. The commenter states the NTSB 
should view dispositions of cases via summary judgment \2\ as similar 
to emergency review determinations: ``The facts pled by FAA should be 
assumed and only when the facts offered by the movant (respondent) are 
`signifcantly probative' [sic], contrasted with the facts pled by the 
government, should the `emergency' finding be disturbed. Otherwise, 
justice allows this determination to continue only for 60 days anyway, 
if the evidential [sic] trial finds it should be reversed.'' Overall, 
the commenter urges the NTSB to maintain the current standard of review 
found at 49 CFR 821.54(e).
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    \2\ See 49 CFR 821.17(d) and Federal Rule of Civil Procedure 56.
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B. Comments in Favor of Changing the Standard Set Forth in 49 CFR 
821.54(e)

    The NTSB received many comments advocating a change to the standard 
of review for FAA emergency determinations. The Transport Workers Union 
of America (TWU) posited that the current rules are ``too deferential 
to the [FAA],'' and compared reviews of emergency determinations to 
temporary restraining orders and preliminary injunctions. TWU's comment 
urges the NTSB to adopt rules similar to those proceedings with the 
standard of review being whether the FAA can show a likelihood of 
success on the merits of a case.
    The NTSB also received comments from the Air Line Pilots 
Association, International (ALPA). ALPA's submission stated, ``[n]early 
eight years of unsatisfactory experience under [49 CFR 821.54(e)] 
demonstrates that the procedure has failed to meet either the spirit or 
intent of the legislation'' under which the NTSB promulgated section 
821.54(e). ALPA's submission includes a policy discussion as to how an 
FAA emergency action against a pilot's airman certificate could cost 
the pilot

[[Page 6762]]

his or her livelihood, as well as a number of recommendations:

    We recommend that the Board substantively amend Rule 54(e) [49 
CFR 821.54(e)] to delete the language requiring the Administrator's 
factual allegations to be assumed to be true. We also recommend that 
Rule 54(e) be substantively amended to reflect the statutory 
authority delegated the Board to make an independent determination 
of whether or not an emergency exists. This may be accomplished by 
deleting the phrasing in current Rule 54(e) that refers to a review 
of ``whether the Administrator's emergency determination was 
appropriate under the circumstances,'' and changing the language in 
Rule 54(e) to reflect the language of the statute, [49 U.S.C. 
44709(e)(3)] (``[i]f the Board finds that an emergency does not 
exist * * * the [Administrator's] order shall be stayed'').

ALPA's submission further urges the NTSB to ``require that upon 
receiving a petition for review challenging the emergency nature of an 
order under Rule 54(e) that the FAA should be required to forthwith 
provide a showing of the evidence underlying its emergency 
determination'' (emphasis in original).
    The NTSB Bar Association (NTSBBA) submitted comments providing 
arguments similar to those provided by ALPA, as described above. 
Initially, NTSBBA urges the NTSB to delete the ``assumption of the 
truth'' language of 49 CFR 821.54(e), so the subsection would read, 
``the [law judge] * * * shall consider whether 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.'' Also with regard to emergency 
cases, NTSBBA requests the NTSB to require the FAA to provide a copy of 
the EIR in tandem with its service of an emergency order. The NTSBBA 
asserts that immediate disclosure of the EIR would promote settlement 
discussions and result in fewer discovery disputes. Finally, NTSBBA 
suggests that a certificate holder seeking review of an FAA emergency 
determination ``be allowed to concurrently submit evidence, affidavits 
and/or declarations in response to the FAA's factual allegations, in 
order to enable the law judge to properly consider whether the 
Administrator's emergency determination was appropriate under the 
circumstances.'' Michael L. Dworkin and Associates submitted comments 
which contained the same language as the NTSBBA submission.
    Similarly, the law offices of Hoff and Herran submitted comments 
asserting the FAA utilizes its authority to issue emergency orders too 
frequently and in an unfair manner. The commenter urges the NTSB to 
change the rules applicable to emergency cases, by requiring the FAA to 
provide a copy of the EIR with every emergency order; and to delete 
from section 821.54(e) the phrase in which the truth of the allegations 
set forth in emergency orders is assumed and, instead, require the FAA 
to prove ``by clear and convincing evidence that aviation safety would 
be likely compromised by proceeding in the normal procedure with the 
due process safeguards left in play during the pendency of the 
respondent's appeal.''
    The National Business Aviation Association (NBAA) also submitted 
comments urging the NTSB to delete from section 821.54(e) the provision 
assuming the truth of the FAA's allegations. The submission states:

    NBAA proposes that when reviewing the FAA's determination that 
an emergency exists, the NTSB ALJ's should not be required to assume 
that all the facts alleged in the FAA's complaint are true, and 
should be able to consider facts not alleged in the FAA's complaint 
that the certificate holder believes are important. One such fact in 
particular that the NTSB ALJ's should be able to consider, 
regardless of whether it is mentioned in the FAA's complaint, is the 
length of time the FAA was aware of the alleged facts on which it 
bases its determination before the FAA initiated emergency action.

NBAA included an appendix to its submission containing a summary of 
``legislative and regulatory history'' concerning the standard of 
review for emergency determinations. The appendix cites many of the 
same sources the NTSB listed in the ANPRM on this topic. The appendix 
also asserts that the NTSB's promulgation of 49 CFR 821.54(e), 
particularly with regard to the ``assumption of truth'' standard, is 
both contrary to legislative intent and unnecessary.
    The Aircraft Owners and Pilots Association (AOPA) submitted 
comments urging the NTSB to delete the standard in section 821.54(e) 
requiring the law judge to assume the truth of the allegations in the 
Administrator's order. In setting forth its rationale for this proposed 
deletion, AOPA asserts many of the same points articulated by the NBAA. 
AOPA's comments suggests the NTSB's rules provide its law judges with 
the discretion to determine whether they should assume the truth of the 
factual allegations contained in the FAA's emergency orders; in this 
regard, the comment makes an analogy to Federal Rule of Civil Procedure 
65, which relates to preliminary injunctions and temporary restraining 
orders. In addition, AOPA proposes the NTSB amend the rules to provide 
specific permission for the submission of evidentiary records, ``such 
as affidavits or other records,'' in conjunction with petitions for 
review of FAA emergency determinations. As to the process for reviewing 
those determinations, AOPA urges the NTSB to adopt a rule providing for 
further Board review; in particular, AOPA appears to suggest the full 
Board should either comment on the law judge's determination in every 
case in which a party requests it do so, or the rule provide for ``an 
accelerated appeal to the full Board'' of the law judge's 
determination.
    The National Air Transport Association (NATA) also submitted 
comments, which do not specifically ask the NTSB to delete the 
``assuming the truth'' language from section 821.54(e), but, instead, 
suggest requiring law judges to consider all facts contained in 
``pleadings and evidence'' presented by either party. NATA's submission 
also proposes adding a sentence to section 821.54(e), which would state 
the law judge should consider, but is not required to follow, the FAA's 
interpretation of the Federal Aviation Regulations. NATA's comments 
include many policy arguments, similar to those articulated in other 
comments, as justification for the suggested changes. The language of 
NATA's justification suggests the practical effect of its proposed 
changes would be the same as deleting the ``assuming the truth'' phrase 
from section 821.54(e). NATA also believes law judges should consider 
the amount of time the FAA has taken to issue an emergency order in 
determining whether the FAA's decision to take emergency action was 
appropriate. With regard to the amount of information available to 
certificate holders in emergency cases, NATA encourages the NTSB to 
issue a rule requiring the FAA to disclose the releasable portions of 
the EIR when the FAA issues an emergency order.
    MMO Legal Services, LLC, (MMO) submitted two separate sets of 
comments. In one, MMO proposes the NTSB's rules should require the FAA 
to ``allege, under oath, that its investigations have revealed `that 
there is a good faith belief that one or more conditions represent an 
imminent threat to the safety of innocent persons or property on the 
ground, or to pilots or passengers aboard aircraft.' '' MMO opines 
that, after providing this sworn statement, ``FAA should be entitled to 
a rebuttable presumption the facts it has asserted are true,'' in lieu 
of the

[[Page 6763]]

requirement that NTSB law judges assume the allegations are true. MMO 
also suggests the NTSB's rules should provide an opportunity for the 
certificate holder to ``cure the condition'' the FAA alleges gives rise 
to the emergency. This suggestion is based upon the policy concern that 
certificate holders may lose their business and livelihood upon the 
FAA's issuance of an emergency order.
    The Helicopter Association International (HAI) also submitted 
comments urging the NTSB to delete the phrase involving the assumption 
of the truth of the FAA's allegations in section 821.54(e). HAI's 
submission states:

    It is difficult to see how there can be any ``meaningful'' 
review of an FAA emergency determination, if the certificate holder 
is unable to challenge the facts, or regulatory interpretations 
included in the FAA complaint or to present facts outside the FAA's 
complaint that the certificate holder believes are important and 
pertinent to the FAA revocation action.

The comment suggests allowing NTSB law judges to consider facts not 
alleged in the FAA's order when determining whether the FAA's decision 
to take immediate action was appropriate. In addition, HAI's submission 
maintains that law judges should consider the length of time it took 
for the FAA to issue an emergency order after learning of the 
violation(s) involved.
    Air Trek, Inc., submitted a comment urging the NTSB to take action 
to prevent the FAA from issuing emergency orders. It cites a recent 
Board case involving the FAA's emergency revocation of its air carrier 
certificate. NTSB Order No. EA-5440 (2009) (available at http://www.ntsb.gov/legal/o_n_o/docs/Aviation/5440.pdf). There, the Board 
determined the FAA's case was unsupported, and later awarded attorney's 
fees to Air Trek under the EAJA. NTSB Order No. EA-5510 (2010) 
(available at: http://www.ntsb.gov/legal/o_n_o/docs/Aviation/5510.pdf). Air Trek summarizes the facts of its case and argues the 
NTSB should revise part 821 ``to allow input from the respondent,'' and 
require its law judges to rule in favor of respondents ``if there is 
any doubt which way a judgment should be made.''
    Similarly, a former FAA ASI submitted comments arguing the NTSB is 
not an impartial arbiter of certificate cases. The former ASI urges the 
NTSB to implement a standard without the ``assumption of truth'' 
language; however, beyond this, he does not suggest any specific 
language or standard that should be used to evaluate the propriety of 
the FAA's emergency determinations.
    Air Tahoma submitted comments containing various details regarding 
the FAA's emergency revocation of its air carrier certificate. Air 
Tahoma's submission contains attachments of sections entitled ``FAA 
misconduct--corroborating facts,'' ``revocation report analysis,'' 
``revocation analysis chart,'' and ``recent FAA operator violations.'' 
Air Tahoma principally contends the FAA is unfair in taking action 
against some certificate holders, and chooses to utilize its authority 
to issue emergency orders in an inequitable manner.

C. Electronic Filing of Documents

    Several commenters also addressed electronic filing in their 
responses to the ANPRM. The text of the ANPRM stated the NTSB is 
committed to creating an electronic filing system for certificate 
enforcement cases. All commenters who addressed electronic filing 
agreed the ability to file documents electronically in air safety 
enforcement actions would be helpful. The FAA's comments suggested 
electronic filing would not be an additional burden on pro se 
respondents, as other agencies that utilize electronic filing systems 
have made the method of electronic filing optional, and all that is 
required of a party for filing documents in an electronic system is 
registering to use the system. The FAA referred to the Merit Systems 
Protection Board and Equal Employment Opportunity Commission as 
examples of agencies that have successfully implemented electronic 
filing procedures, and opined that the vast majority of respondents 
will be familiar enough with electronic systems to utilize an 
electronic filing system.\3\ The comment praised the Board for 
considering a new electronic filing system, but stated that the FAA 
understands implementing such a new system will likely be time-
consuming; as a result, the FAA suggested allowing parties to submit 
documents via electronic mail in the interim.
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    \3\ Specifically, the comment stated, ``In this technology-based 
age, the Board should feel confident that a party's pro se status is 
not an automatic impediment to accessing the technology through 
which electronic filing would occur. Aviation is a technology driven 
endeavor. All certificate holders, regardless of their level of 
experience and technological sophistication, have access to a myriad 
of opportunities to conduct their FAA business electronically.''
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    HAI's comments proposed the NTSB implement an electronic filing and 
docketing system similar to the Federal courts' Public Access to Court 
Electronic Records (PACER) system. Other comments simply observed that 
electronic filing would be helpful, and suggested allowing parties the 
option of filing either electronically or in paper format for a certain 
period of time, such as 2 years, before requiring all parties to file 
documents electronically.

D. Availability of Evidence and Discovery

    The FAA's comments also addressed pre-hearing orders by stating 
that the Board's rules sufficiently cover the parties' discovery 
obligations, and asserting that a specific requirement in the rules for 
each judge to issue a pre-hearing order is unnecessary. The FAA's 
submission further notes 49 CFR 821.19(d) already contains an adequate 
enforcement mechanism for failure to comply with discovery, as it 
provides noncompliance with a law judge's order compelling discovery 
may result in a negative inference, or other relief the law judge may 
deem appropriate. The FAA contends that no changes to the rules 
relating to discovery are necessary, but, if anything, the only change 
the FAA might support would be limited to an initial exchange of 
information among the parties. The FAA's submission states, as an 
example, ``in an emergency case, the rule might specify that no later 
than 5 days after the answer to the complaint is served, the 
Complainant would provide the Respondent with copies of all non-
privileged documents relied on to support the factual allegations in 
the complaint,'' and the certificate holder would be required to 
provide it with all discoverable documents related to all affirmative 
defenses upon which the certificate holder expects to rely.
    As has been noted above, many comments urge the NTSB to require the 
FAA to provide a copy of the EIR in tandem with the FAA's issuance of a 
certificate order, or soon thereafter. AOPA's comments advocate for a 
rule applicable to both emergency and non-emergency cases that would 
require the FAA to disclose the releasable portions of the EIR when the 
FAA issues a notice of proposed certificate action, which precedes the 
FAA's issuance of a certificate order. AOPA's submission includes its 
rationale for this suggestion: respondents who are not represented by 
experienced counsel may not know how to obtain a copy of the releasable 
portions of the FAA's EIR, and may attempt to obtain such information 
by filing a Freedom of Information Act request, which is unnecessarily 
burdensome to both parties.
    TWU's comments indicate it favors a requirement that law judges 
issue prehearing orders, to provide sufficient clarity to parties 
concerning deadlines and discovery obligations. In discussing potential 
sanctions for failure to comply with a discovery requirement, TWU

[[Page 6764]]

suggests the law judges should issue orders barring evidence or 
creating presumptions. Other commenters take the position that the 
current system of allowing law judges the discretion to issue 
prehearing orders should not change, as it accomplishes the necessary 
objectives.

E. Rules Concerning the EAJA (49 CFR Part 826)

    With respect to the EAJA, many commenters suggest the standard for 
receiving an award of attorney's fees is too difficult to fulfill. The 
current standard is based upon a collection of several NTSB and Federal 
court cases, all of which have consistently held that a certificate 
holder is eligible for fees under the EAJA if the certificate holder 
prevailed in the underlying certificate action and can show the FAA was 
not substantially justified in pursuing it. The comments specifically 
discussing the part 826 EAJA rules did not distinguish the cases that 
form the basis for this standard, but instead opined that obtaining 
fees under the EAJA is sufficient to discourage the Administrator from 
pursuing meritless certificate actions.
    A number of commenters ask the NTSB to adopt a bright-line standard 
in part 826 that a law judge's dismissal of a certificate action after 
the FAA voluntarily withdraws the complaint should be with prejudice. 
This suggestion is the result of a decision of the U.S. Court of 
Appeals for the District of Columbia Circuit in a case in which the 
Board determined two applicants were not ``prevailing parties'' for 
purposes of the EAJA when the FAA withdrew its case against them prior 
to hearing. Turner and Coonan v. NTSB, 608 F.3d 12 (2010). In Turner 
and Coonan, the D.C. Circuit applied a three-part test from District of 
Columbia v. Straus, 590 F.3d 898, 901 (D.C. Cir. 2010), for the purpose 
of determining whether a party has, for purposes of the EAJA, prevailed 
in an underlying proceeding: (1) There must be a ``court-ordered change 
in the legal relationship'' of the parties; (2) the judgment must be in 
favor of the party seeking the fees; and (3) the judicial pronouncement 
must be accompanied by judicial relief. In Turner and Coonan, the D.C. 
Circuit indicated a law judge's dismissal of a case ``with prejudice'' 
might have provided the applicants with judicial relief sufficient to 
fulfill the third prong of that test. As a result, some comments 
encourage the NTSB to implement a rule stating such dismissals will 
always occur ``with prejudice.''
    MMO's second set of comments specifically suggests how the NTSB 
should handle cases in which the FAA withdraws a complaint just prior 
to the hearing. The submission states:

    Once the Respondent has made a good faith, honest showing that 
there is no prima [facie] case, FAA should proceed at its peril if 
it elects to ignore the Respondent's showing. This will deter a lot 
of cases which are based on misinformation at the FSDO inspector 
level. If a Respondent shows FAA Counsel that the underlying facts 
and conclusions are incorrect, FAA should have a duty to require its 
inspector(s) to re-evaluate their information to make sure it is 
correct before forcing the Respondent to defend the case further.

MMO also suggests awards of attorney fees be made ``based on the 
average fees [charged] by aviation defense counsel having experience 
approximately equal to those of actual defense counsel for the 
prevailing Respondent.'' The commenter further suggests that awards of 
legal fees be made to all certificate holders who can show the FAA 
proceeded when it did not have a prima facie case, ``regardless of the 
net worth of the Respondent.''
    With regard to other proposed amendments to part 826, the FAA's 
submission suggests changing the rule that contains outdated 
information as to where a successful applicant should seek payment 
after the Board issues a decision awarding fees and expenses under the 
EAJA. The FAA suggests the NTSB change 49 CFR 826.40 to ``specify only 
that the applicant shall comply with all FAA administrative 
requirements for payment (i.e., providing the FAA with bank routing and 
account numbers, tax identification numbers, address, etc.) and that 
the FAA should pay promptly.'' Further, the FAA suggests the NTSB 
delete from section 826.40 the language stating ``the agency will pay 
the amount awarded to the applicant within 60 days,'' and, instead, 
include the ``pay promptly'' language suggested above.

F. Other Matters

    The FAA's submission also requests the NTSB make a ``technical 
correction'' to subpart B of 49 CFR part 821, in order to clarify the 
general rules of practice also apply to appeals in cases involving 
civil penalties. The FAA correctly notes section 821.2 (``Applicability 
and description of part'') states, ``[t]he provisions of this part also 
govern all proceedings on appeal from an order of the Administrator 
imposing a civil penalty.'' Subpart B, however, does not reference the 
statutory section under which the FAA may impose a civil penalty, and 
the FAA, therefore, suggests the NTSB clarify it applies to appeals of 
civil penalties.

III. Proposed Changes

A. Electronic Filing

    As the NTSB stated in the ANPRM, we are committed to implementing 
an electronic filing system. The NTSB carefully considered the comments 
received concerning electronic filing, and determined the least costly 
and most effective manner of introducing the practice of electronic 
filing is to propose incremental changes, commencing with the 
acceptance of filings via electronic mail.
1. Section 821.7(a)(1) (Filing of Documents With the Board)
    The NTSB proposes the addition of two new sentences at the end of 
section 821.7(a)(1), to provide parties the option to submit documents 
electronically. With this addition, section 821.7(a)(1) would read as 
follows: ``(1) Except as provided in paragraph (2), documents are to be 
filed with the Office of Administrative Law Judges, National 
Transportation Safety Board, 490 L'Enfant Plaza East, SW., Room 4704, 
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. Filings may be made by paper 
(hard copy), including by facsimile at (202) 314-6158, or (except as 
otherwise provided in Subpart I) by electronic mail at alj@ntsb.gov. 
Filings made by facsimile or electronic mail are subject to additional 
requirements set forth in paragraphs (a)(3) and (4) of this section.''
2. Section 821.7(a)(2) (Filings of Documents With the Board)
    The NTSB proposes to amend section 821.7(a)(2) as follows: ``(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., Room 6401, Washington, DC 20594. Filings may be made by hard copy, 
including by facsimile at (202) 314-6090, or by electronic mail at 
enforcement@ntsb.gov. Filings made by facsimile or electronic mail are 
subject to additional requirements set forth in

[[Page 6765]]

paragraphs (a)(3) and (4) of this section.''
3. Section 821.7(a)(3) (Filing of Documents With the Board)
    As described above, the NTSB would like to accommodate parties who 
prefer to submit documents to the NTSB via facsimile and electronic 
mail. To do so, the NTSB proposes to amend section 821.7(a)(3) as 
follows: ``(3) Except as otherwise provided in Subpart I (governing 
emergency proceedings), 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. Documents filed by electronic mail 
must be signed and transmitted in a commonly accepted format, such as 
Adobe Portable Document Format (PDF). ''
4. Section 821.7(a)(4) (Filing of Documents With the Board)
    The NTSB proposes amending the language of section 821.7(a)(4) to 
reflect electronic service of documents, as follows: ``(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.''
5. Section 821.8(b) (Service of Documents)
    The NTSB proposes adding the option for parties to receive 
documents only by electronic mail to subsection (1) of Sec.  821.8(b) 
with the following language: ``(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, without also receiving a hard copy of the original by personal 
delivery, first-class mail or overnight delivery service, by filing a 
written document with the Board (with copies to the other parties) 
expressly stating such a preference.''
6. Section 821.57(b) (Procedure on Appeal)
    The NTSB also proposes to amend this section to provide electronic 
mail transmission as an option to parties submitting briefs in 
emergency cases. The NTSB proposes the following addition: ``* * * 
Unless otherwise authorized by the Board, all briefs in connection with 
appeals governed by this subpart must be filed and served by overnight 
delivery service, or by facsimile or electronic mail. Aside from the 
time limits and methods of filing and service specifically mandated by 
this paragraph, the provisions of Sec.  821.48 shall apply.''

B. Emergency Cases

    As noted above, many comments we received in response to the ANPRM 
encouraged the NTSB to change the standard of review for emergency 
determinations (found at section 821.54(e)), and to allow certificate 
holders to obtain certain evidence from the FAA and submit their own 
evidence into the record in support of petitions for review of FAA 
emergency determinations. We have carefully considered these comments, 
and acknowledge the FAA maintains the authority to take action 
affecting a certificate that is immediately effective ``[w]hen the 
Administrator is of the opinion that an emergency exists related to 
safety in air commerce and requires immediate action.'' 49 U.S.C. 
46105(c). The NTSB is also mindful of the viewpoints expressed in some 
comments that the standard of review is unfair and may result in 
irrevocable harm to certificate holders, and in other comments urging 
the NTSB to treat reviews of emergency determinations like requests for 
temporary restraining orders or preliminary injunctions. We do not 
believe reviews of emergency determinations made by an administrative 
agency such as the FAA in consideration of the public interest in 
aviation safety raise questions of a similar nature to civil 
proceedings in which injunctive relief is sought.
    Although the rules provide the facts alleged in the order are 
assumed as true for the limited, preliminary purpose of determining 
whether the Administrator's emergency determination was warranted in 
the interest of aviation safety, the law judges have always considered 
evidence submissions relevant to the propriety of the emergency 
determination itself. For example, in a recent case involving 
revocation of a respondent's pilot and airman medical certificates 
based on an alleged ``refusal'' to submit to a random drug test by 
allegedly leaving the testing facility before the testing process was 
completed, the respondent submitted evidence showing he had passed a 
breath test and passed a drug test taken at his own expense and at the 
same facility within approximately 3 hours of furnishing the 
insufficient sample. Such evidence was offered to show the respondent 
did not present an immediate threat to aviation safety related to 
alcohol or drug use. The law judge considered it favorably in granting 
the respondent's petition. Nevertheless, the number of comments 
requesting the rules permit the submission of evidence relevant to the 
FAA's emergency determination suggests clarification of this point 
would be useful.
    The NTSB therefore proposes including explicit language in the 
rules permitting the attachment of such evidence to petitions for 
review of emergency determinations. Finally, we propose adding a 
requirement for the FAA to provide certificate holders with certain 
releasable information many commenters believe necessary for a 
certificate holder to obtain a full understanding of the basis for a 
certificate action and/or an emergency determination as soon as 
possible. We note some commenters believe such information will 
significantly reduce the need for discovery, especially in the 
compressed time frame environment of emergency cases.
1. Section 821.54(e) (Petition for Review of Administrator's 
Determination of Emergency)
    As explained above, the NTSB currently does not intend to remove 
the ``assuming the truth of the allegations'' language from section 
821.54(e), but proposes including explicit language permitting the 
respondent to present evidence challenging the emergency nature of the 
proceedings in the form of affidavits or other records. However, the 
NTSB reminds parties that a law judge's review of an emergency 
determination is separate and distinct from a review of the underlying 
certificate action on the merits. Parties should be mindful of this 
distinction in submitting evidence under this provision, and should 
only provide evidence helpful in resolving the issue of whether the 
FAA's decision to take immediately effective action was appropriate, 
and avoid presenting evidence that goes to the merits of the underlying 
certificate action.
    The NTSB proposes changing section 821.54(e) as follows: ``(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

[[Page 6766]]

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 should 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.''
2. Section 821.55 (Complaint, Answer to Complaint, Motions and 
Discovery)
    The NTSB proposes adding a new subsection, replacing current 
subsection (d), to section 821.55 that will make a complaint subject to 
dismissal if the FAA, without good cause, failed to provide a 
certificate holder against whom an emergency order was issued with the 
releasable portions of its enforcement investigation report (EIR) by 
the date on which the emergency order was issued. Additionally, 
subsection (c) will be amended to permit the filing of such a motion to 
dismiss, and current subsection (d) will be redesignated as subsection 
(e). The NTSB proposes the following language: ``(c) Motion to dismiss 
and motion for more definite statement. Except as provided in paragraph 
(d) of this section, in proceedings governed by this subpart, no motion 
to dismiss the complaint or for a more definite statement of the 
complaint's allegations shall be made, but the substance thereof may be 
stated in the respondent's answer. The law judge may permit or require 
a more definite statement or other amendment to any pleading at the 
hearing, upon good cause shown and upon just and reasonable terms.
    (d) Motion to dismiss for failure to include copy of releasable 
portion of Enforcement Investigative Report (EIR) with emergency or 
other immediately effective order. (1) Where the Administrator has 
failed to include a copy of the releasable portion of the FAA's EIR 
with an emergency or other immediately effective order, or to provide 
the respondent with a copy of the releasable portion of the EIR prior 
to the issuance of such an order, 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 Sec.  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.''
3. Section 821.57(c) (Procedure on Appeal)
    In rare cases, the Board may determine it necessary to remand an 
emergency case to a law judge. Therefore, the NTSB proposes changing 
section 821.57(c) to clarify that both subsections (a) and (b) of 
section 821.49 apply to emergency cases. The NTSB proposes amending 
subsection 821.57(c) to read: ``(c) Issues on appeal. The provisions of 
Sec.  821.49 (a) and (b) shall apply in proceedings governed by this 
subpart.''

C. Equal Access to Justice Act (EAJA)

    Several commenters who responded to the ANPRM suggested the NTSB 
implement changes with regard to 49 CFR part 826. The NTSB has reviewed 
part 826 and proposes the changes discussed below, in order to ensure 
the rules are updated and consistent with 49 CFR part 821.
1. Section 826.1 (Purpose of these Rules)
    In order to make 49 CFR part 826 consistent with the terminology 
used in 49 CFR part 821, the NTSB proposes replacing each reference to 
``the Agency'' with the term ``the Administrator.'' This will 
necessitate a minor change to section 826.1, and the NTSB proposes that 
it read: ``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.
    In addition to the change to section 826.1, the NTSB proposes 
additional changes to sections 821 and 826 as follows.
2. Section 821.12(b) (Amendment and Withdrawal of Pleadings)
    As discussed above, the NTSB received several comments in response 
to the ANPRM concerning the EAJA, which specifically suggested the 
NTSB's rules should address the status of cases the FAA withdraws 
immediately prior to hearing. In a recent opinion involving an issue 
concerning whether the certificate holder was the ``prevailing party'' 
when the FAA withdrew its order just before the hearing, the Board 
stated it would not adopt a bright-line rule to determine when such a 
withdrawal should result in a dismissal with or without prejudice. 
Administrator v. Koch, NTSB Order No. EA-5571 (2011) (available at: 
http://www.ntsb.gov/legal/o_n_o/docs/Aviation/5571.pdf). The NTSB 
believes it best to allow its law judges to assess the facts of each 
case and determine whether the withdrawal was with or without 
prejudice. The Board will review such a determination de novo, as it 
does with most other issues parties present on appeal. Based on this 
reasoning, the NTSB proposes changing section 821.12(b) as follows: 
``(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 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.''

[[Page 6767]]

3. Section 826.40 (Payment of Award)
    As was stated in the ANPRM, the address listed for sending 
applications for EAJA award grants in section 826.40 is outdated. The 
FAA's comment in response to the ANPRM recommends section 826.40 simply 
state the FAA will pay funds via electronic fund transfer, because this 
is the only manner in which the FAA now provides funds. The NTSB 
believes this change will provide sufficient flexibility to allow for 
the FAA to change its payment process in the future. In each case, the 
FAA's provision of detailed instructions to each applicant will ensure 
the applicant has the updated, relevant information needed to obtain 
payment.
    Therefore, the NTSB proposes the following change to section 
826.40: ``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.''

D. Miscellaneous Technical Changes

    In undertaking a detailed review of both parts 821 and 826, the 
NTSB has identified several sections of the rules we believe should be 
updated. Many of the provisions in question are either no longer 
practical or simply out-of-date. Some contain ambiguities the NTSB has 
recently identified in encountering unique situations. Therefore, this 
NPRM proposes to amend those sections of the rules to resolve the 
identified issues. Below are summaries of the proposed changes.
1. Section 821.6(b) (Appearances and Rights of Witnesses)
    The NTSB proposes to delete the phrase, ``in person,'' because some 
matters, including rulings on motions and, where the parties consent, 
hearings (or sessions thereof), are conducted telephonically. The NTSB 
proposes deleting the phrase, ``in person,'' to clarify the rule and 
make it consistent with such case practice. With this change, section 
821.6(b) would read, ``(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.''
2. Section 821.6(d) (Appearances and Rights of Witnesses)
    In a recent case, the NTSB granted reconsideration of a previous 
order due to a misunderstanding regarding which attorney was 
representing the respondent. Administrator v. Ricotta, NTSB Order No. 
EA-5569 (2011)(available at: http://www.ntsb.gov/legal/o_n_o/docs/Aviation/5569.pdf). Therefore, to make entrances of appearance clear 
and assure the attorney's or representative's contact information is 
current and more easily located within the record, the NTSB proposes 
adding the phrase, ``in a separate written document'' to the first 
sentence of section 821.6(d). The FAA already regularly submits 
separate filings with the relevant information, and many respondents' 
attorneys do so, as well. However, the NTSB believes it best to require 
such a filing in section 821.6, and to keep the attorney's or 
representative's contact information current. A provision has also been 
added to require immediate written notification when any attorney or 
representative withdraws from representation in a case. With these 
changes, section 821.6(d) would read, ``(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.''
3. Section 821.7(e) (Filing of Documents With the Board)
    The NTSB proposes deleting the word ``other'' immediately preceding 
the word ``representative'' in current Sec.  821.7(e). This word is 
unnecessary. With this change, Sec.  821.7(e) will read as follows: 
``(e) Subscription. The original of every document filed shall be 
signed by the filing party, or by that party's attorney or 
representative.''
4. Section 821.7(f)(Filing of Documents With the Board)
    Consistent with the change to section 821.6(d) suggested above, the 
NTSB proposes adding the phrase ``and any subsequent document advising 
the Board of any representation or change in representation of a party 
pursuant to Sec.  821.6(d)'' to section 821.7(f). With this change, 
section 821.7(f) would read, ``(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.''
5. Section 821.8(a) (Service of Documents)
    The NTSB proposes adding the word ``simultaneously'' to subsection 
(a) of Sec.  821.8, to state as follows: ``(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.'' The remainder of Sec.  
821.8(a) shall remain unchanged.
6. Section 821.8(c) (Service of Documents)
    The NTSB proposes deleting parts of this section to ensure 
consistency with the changes proposed to Sec.  821.7(f). We propose 
Sec.  821.8(c) should include only the following language: ``(c) Where 
service shall be made. Except for 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.''
7. Section 821.8(d) (Service of Documents)
    The NTSB proposes adding a subsection (3) to Sec.  821.8(d), to 
ensure consistency with other sections in part 821 that will provide 
for transmission of documents via electronic mail. With the new 
subsection (3), Sec.  821.8(d) will read as follows: (d) Presumption of 
service. There shall be a presumption of lawful service:

[[Page 6768]]

    (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.
9. Section 821.35(b)(10) (Assignment, Duties and Powers)
    In addition to initial decisions, law judges may dispose of cases 
by dispositional order, where appropriate. Therefore, the NTSB proposes 
adding the phrase ``and dispositional orders'' to this subsection, to 
state as follows: ``(b) Powers of law judge. Law judges shall have the 
following powers: * * * (10) To issue initial decisions and 
dispositional orders.''
10. Section 821.50(c) (Petition for Rehearing, Reargument, 
Reconsideration or Modification of an Order of the Board)
    Recently, the NTSB has received an increased number of petitions 
for reconsideration. Most of these petitions do not contain ``new 
matter'' under the rule, but instead challenge the Board's legal 
reasoning and may contain legal arguments the parties could have made 
in their appeal briefs. The NTSB proposes clearly addressing this issue 
by adding the following to the end of Section 821.50(c): ``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.''
11. Section 821.64(b) (Judicial Review)
    The NTSB recently encountered a situation in which the respondent 
filed a motion for a stay pending judicial review on the 29th day 
following the date of service of the Board's decision, and this 
circumstance highlighted the ambiguity of the current language in this 
subsection. To ensure the deadline is clear, the NTSB proposes amending 
this subsection to give the respondent 20 days to file a motion for a 
stay, and the FAA 2 days to reply to the motion, as follows: ``(b) Stay 
pending judicial review. No 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.''
12. Other Matters
    The changes proposed below do not include any changes indicating 
the rules of subpart B apply to civil penalty actions. The NTSB 
declines to propose any such change because it believes that the 
language of section 821.2 sufficiently indicates that 49 CFR part 821 
applies to civil penalty cases. In addition, we note that, in the 
definitions section of subpart A (section 821.1), the term 
``complaint'' is defined as ``an order of the Administrator * * * from 
which an appeal to the Board has been taken pursuant to sections 49 
U.S.C. 44106, 44709, 46301.'' This last cited provision, section 46301 
of title 49, United States Code, concerns civil penalties for 
violations of various provisions in subtitle VII (Aviation Programs) of 
that title.

E. Regulatory Analyses

1. Executive Order 12866 (Regulatory Planning and Review); Executive 
Order 13579 (Regulation and Independent Regulatory Agencies); Unfunded 
Mandates Reform Act; and the Environmental Policy Act
    This notice of proposed rulemaking 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 proposed 
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.
2. Executive Order 13132 (Federalism)
    The NTSB has analyzed this NPRM 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.
3. Regulatory Flexibility Act
    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 NPRM will not have a significant 
economic impact on a substantial number of small entities. However, the 
NTSB will consider comments to facilitate any further analysis on this 
issue, should commenters believe otherwise.
4. Other Executive Orders and Statutory Provisions
    This NPRM 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.

[[Page 6769]]

49 CFR Part 826

    Claims, Equal access to justice, Lawyers.

    For the reasons discussed in the preamble, the NTSB proposes to 
amend 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 continues read as 
follows:

    Authority: 49 U.S.C. 1101-1155, 44701-44723, 46301, unless 
otherwise noted.

    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.
    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., Room 
4704, 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. Filings may be made 
by paper (hard copy), including by facsimile at (202) 314-6158, or 
(except as otherwise provided in Subpart I) by electronic mail at 
alj@ntsb.gov. Filings made by facsimile or electronic mail are subject 
to additional requirements set forth in paragraphs (a)(3) and (4) of 
this section.
    (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., Room 6401, Washington, DC 20594. Filings may be made by hard copy, 
including by facsimile at (202) 314-6090, or by electronic mail at 
enforcement@ntsb.gov. Filings made by facsimile or electronic mail are 
subject to additional requirements set forth in paragraphs (a)(3) and 
(4) of this section.
    (3) Except as otherwise provided in Subpart I (governing emergency 
proceedings), 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. Documents filed by electronic mail 
must be signed and transmitted in a commonly accepted format, such as 
Adobe Portable Document Format (PDF).
    (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.
* * * * *
    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, 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, without also 
receiving a hard copy of the original by personal delivery, first-class 
mail or overnight delivery service, 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 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:

[[Page 6770]]

    (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).
    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 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.
    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.
* * * * *
    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.
* * * * *
    8. In Sec.  821.54, revise paragraph (e) to read as follows:


Sec.  821.54  Petition for review of Administrator's determination of 
emergency.

* * * * *
    (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 should 
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.
* * * * *
    9. In Sec.  821.55, revise paragraphs (c) and (d) to read as 
follows:


Sec.  821.55  Complaint, answer to complaint, motions and discovery.

* * * * *
    (c) Motion to dismiss and motion for more definite statement. 
Except as provided in paragraph (d) of this section, in proceedings 
governed by this subpart, no motion to dismiss the complaint or for a 
more definite statement of the complaint's allegations shall be made, 
but the substance thereof may be stated in the respondent's answer. The 
law judge may permit or require a more definite statement or other 
amendment to any pleading at the hearing, upon good cause shown and 
upon just and reasonable terms.
    (d) Motion to dismiss for failure to include copy of releasable 
portion of Enforcement Investigative Report (EIR) with emergency or 
other immediately effective order.
    (1) Where the Administrator has failed to include a copy of the 
releasable portion of the FAA's EIR with an emergency or other 
immediately effective order, or to provide the respondent with a copy 
of the releasable portion of the EIR prior to the issuance of such an 
order, 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.
    10. 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. Unless 
otherwise authorized by the Board, all briefs in connection with 
appeals governed by this subpart must be filed and served by overnight 
delivery service, or by facsimile or electronic mail. Aside from the 
time limits and methods of filing and service

[[Page 6771]]

specifically mandated by this paragraph, the provisions of Sec.  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.
* * * * *
    11. 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 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.

PART 826--RULES IMPLEMENTING THE EQUAL ACCESS TO JUSTICE ACT OF 
1980

    12. 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).

    13. Section 826.1 is revised 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.
    14. Section 826.40 is revised 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.

    Dated: January 27, 2012.
Deborah A.P. Hersman,
Chairman.
[FR Doc. 2012-2278 Filed 2-8-12; 8:45 am]
BILLING CODE 7533-01-P