[Federal Register Volume 77, Number 200 (Tuesday, October 16, 2012)]
[Rules and Regulations]
[Pages 63242-63245]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-25421]


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NATIONAL TRANSPORTATION SAFETY BOARD

49 CFR Part 821

[Docket No. NTSB-GC-2011-0001]


Rules of Practice in Air Safety Proceedings

AGENCY: National Transportation Safety Board.

ACTION: Interim final rule; request for comments.

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SUMMARY: The National Transportation Safety Board (NTSB or Board) 
amends portions of its regulations, which set forth rules of procedure 
for the NTSB's review of certificate actions taken by the Federal 
Aviation Administration (FAA), as a result of the recent enactment of 
the Pilot's Bill of Rights.

DATES: This rule is effective October 16, 2012. Comments must be 
received by December 17, 2012. Comments received after the deadline 
will be considered to the extent possible.

ADDRESSES: A copy of this interim final rule, 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. Alternatively, a copy is available on the government-wide 
Web site on regulations at http://www.regulations.gov (Docket ID Number 
NTSB-GC-2011-0001).
    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

    The NTSB previously issued an advance notice of proposed rulemaking 
(ANPRM), 75 FR 80452 (Dec. 22, 2010), and a notice of proposed 
rulemaking (NPRM), 77 FR 6760 (Feb. 9, 2012), concerning 49 CFR parts 
821 and 826. (Part 826 sets forth rules of procedure concerning 
applications for fees and expenses under the Equal Access to Justice 
Act of 1980.) Prior to the NTSB's issuance of a final rule concerning 
parts 821 and 826, Congress enacted the Pilot's Bill of Rights, Public 
Law 112-53, 126 Stat. 1159 (August 3, 2012), which implemented 
statutory changes for, among other things: (1) The FAA to disclose its 
enforcement investigative report (EIR) to each respondent in an 
aviation certificate enforcement case; (2) the NTSB to apply the 
Federal Rules of Civil Procedure and Federal Rules of Evidence to each 
case; and (3) litigants now to have the option of appealing the Board's 
orders to either a Federal district court or a Federal court of 
appeals. The Board therefore issues this interim final rule in response 
to these legislative changes. Elsewhere in today's Federal Register, 
the NTSB published a final rule concerning those portions of its 
February 2012 NPRM not affected by enactment of the Pilot's Bill of 
Rights.

II. Rulemaking Procedure

    As a result of enactment of the Pilot's Bill of Rights and to 
ensure compliance with it, the NTSB is immediately changing its Rules 
of Practice applicable to air safety proceedings. The statute is 
effective immediately, thus requiring the NTSB to promulgate regulatory 
changes without delay. As a result, the NTSB believes the statute 
constitutes good cause for issuance of an interim final rule. The NTSB 
will consider comments received during the comment period, and will 
alter the interim final rule issued herein if the comments warrant 
alteration.

III. Statutory Changes

    Pursuant to subsection 2(a) of the Pilot's Bill of Rights, the 
Federal Rules of Evidence and Federal Rules of Civil Procedure, to the 
extent practicable, are applicable to all NTSB proceedings conducted 
under 49 CFR part 821, subparts C (rules applicable to proceedings 
under 49 U.S.C. 44703, which governs airman certificates), D (rules 
applicable to proceedings under 49 U.S.C. 44709, which governs 
amendments, modifications, suspensions, and revocations of 
certificates), and F (rules applicable to hearings conducted under 49 
CFR part 821).
    Subsection 2(b) of the statute requires the FAA provide ``timely, 
written notification'' to individuals who are the subject of an FAA 
enforcement action regarding the ``nature of the investigation.'' The 
FAA must inform the individual he or she need not respond to an FAA 
letter of investigation and will not be adversely affected if he or she 
elects not to respond. The statute requires the Administrator of the 
FAA to make available the releasable portions of the EIR to each 
individual, and provide certain air traffic data. The statute further 
provides that the Administrator may delay this notification if the FAA 
determines the notification would threaten the integrity of the 
investigation.
    In addition, subsection 2(c) of the statute strikes from 49 U.S.C. 
44703(d)(2), 44709(d)(3), and 44710(d)(1) the phrase, ``but is bound by 
all validly adopted interpretations of laws and regulations the 
Administrator carries out unless the Board finds an interpretation is 
arbitrary, capricious, or otherwise not according to law.'' The statute 
also strikes from 49 U.S.C. 44709(d)(3) and 44710(d)(1) the language 
stating the Board is bound by FAA policy guidance concerning sanctions 
for violations.
    Subsection 2(d) of the statute provides individuals with the option 
of appealing a Board order to a Federal district court or a Federal 
court of appeals. Previously, only the Federal courts of appeals had 
jurisdiction to review appeals of Board orders on certificate actions. 
Additionally, the statute states, absent a stay from the Board, an 
emergency order the Administrator issues under 49 U.S.C. 44709(e)(2) 
will remain in effect pending the exhaustion of the appeal to Federal 
district court. Regarding review of orders, the statute requires 
Federal district courts to give ``full independent review'' of the 
Administrator's decision; and in the case of emergency orders, the 
statute requires Federal district courts to give ``substantive 
independent and expedited review'' of the

[[Page 63243]]

Administrator's decision to make the order immediately effective.
    Other provisions of the Pilot's Bill of Rights involve notices to 
airmen (section 3) and the FAA medical certification process (section 
4). These provisions do not directly affect the Board's Rules of 
Practice and therefore do not require changes to the Board's rules.

IV. Regulatory Changes

    As a result of these statutory provisions, the Board herein 
implements the following changes to 49 CFR part 821. As indicated 
above, the NTSB will consider all comments concerning this rulemaking 
received by the deadline, but will only alter any provisions 
implemented in this rule if the comments establish such alteration is 
necessary.

A. Section 821.5: Procedural Rules

    The NTSB herein adds a new section, 821.5, entitled ``Procedural 
rules'' within Subpart B of part 821. This new section will state, ``In 
proceedings under subparts C, D, and F, 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.'' The NTSB considers the phrase, ``to the extent they are 
consistent with sound administrative practice,'' to preclude the 
application of Federal Rules of Civil Procedure that are obviously 
inapplicable. For example, Federal administrative agencies do not 
conduct jury trials. See, e.g., Atlas Roofing Co., Inc. v. OSHRC, 430 
U.S. 442, 455 (1977). Likewise, rules concerning class actions are 
inapplicable. Overall, the NTSB has reviewed the Federal Rules of Civil 
Procedure and notes the inapplicability of the following rules: 5.1 
(``Constitutional Challenge to a Statute--Notice, Certification, and 
Intervention''), 5.2 (``Privacy Protection for Filings Made with the 
Court''), 13 (``Counterclaim and Crossclaim''), 14 (``Third-Party 
Practice''), 35 (``Physical and Mental Examinations''), 38 (``Right to 
a Jury Trial; Demand''), 39 (``Trial by Jury or by the Court''), 47 
(``Selecting Jurors''), 48 (``Number of Jurors; Verdict; Polling''), 49 
(``Special Verdict; General Verdict and Questions''), 50 (``Judgment as 
a Matter of Law in a Jury Trial; Related Motion for a New Trial; 
Conditional Ruling''), 51 (``Instructions to the Jury; Objections; 
Preserving a Claim of Error''), 53 (``Masters''), and the Rules 
contained in Titles IV (``Parties''), VIII (``Provisional and Final 
Remedies''), IX (``Special Proceedings''), X (``District Courts and 
Clerks; Conducting Business; Issuing Orders''), and ``Supplemental 
Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions'' 
of the Federal Rules of Civil Procedure.
    Furthermore, the NTSB considers the rules contained in subpart B of 
49 CFR part 821 (``General Rules Applicable to Petitions for Review, 
Appeals to the Board, and Appeals from Law Judges' Initial Decisions 
and Appealable Orders'') analogous to local rules, as referenced in 
various parts of the Federal Rules of Civil Procedure. In this regard, 
the NTSB will consider its rules in subpart B of part 821 to supplement 
the overarching applicable Federal Rules of Civil Procedure. To the 
extent the timelines for filing or responding, as well as procedural 
processes such as for discovery or subpoenas, differ slightly from the 
Federal Rules of Civil Procedure, the NTSB will consider the rules in 
subpart B as the local rules followed in practice before the Board.
    The NTSB believes this new section adequately provides notice to 
parties of the application of the Federal Rules of Civil Procedure, yet 
still complies with the statutory directive in section 2(a) of the 
Pilot's Bill of Rights--that the Board's Rules of Practice adopt the 
Federal Rules of Civil Procedure ``to the extent practicable.'' 
Notably, most sections within subpart B of the Board's Rules of 
Practice have a Federal Rule counterpart. Sections 821.7 (``Filing of 
documents with the Board'') and 821.8 (``Service of documents'') of the 
Board's Rules of Practice are supplemental to Federal Rules of Civil 
Procedure (FRCP) 5 (``Serving and Filing Pleadings and Other Papers'') 
and 7 (``Pleadings Allowed; Form of Motions and Other Papers''), 
respectively. Concerning sections 821.10 (``Computation of time'') and 
821.11 (``Extensions of time''), FRCP 6 (``Computing and Extending 
Time; Time for Motion Papers'') is also applicable. Similarly, section 
821.12(a) will function as a supplement to FRCP 15 (``Amended and 
Supplemental Pleadings''), and section 821.12(b) will function as a 
supplement to FRCP 41(a) (``Dismissal of Actions''). The NTSB will read 
Title III (``Pleadings and Motions'') of the FRCPs in conjunction with 
section 821.14, concerning motion practice before the Board. Sections 
821.24 and 821.30, both entitled ``[i]nitiation of proceeding,'' will 
function as supplements to FRCP 3, which simply states, ``[a] civil 
action is commenced by filing a complaint with the court.'' Likewise, 
section 821.40, concerning the record of the proceeding before the NTSB 
law judge, will function as a supplement to FRCP 44 (``Proving an 
Official Record'').

B. Section 821.19: Depositions and Other Discovery

    As a general matter, the Board encourages parties to resolve 
discovery disputes on their own. In cases where parties seek a ruling 
from an NTSB law judge on a discovery dispute, the NTSB encourages 
parties to articulate clearly their position by relying on the Federal 
Rules of Civil Procedure as read in conjunction with the Board's Rules 
of Practice.
1. Subsection (a)
    Subsection 821.19(a), entitled ``Depositions,'' will now include a 
reference to the Federal Rules of Civil Procedure within the second 
sentence, to read as follows: ``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.'' Federal Rules 30 (``Depositions by 
Oral Exam'') and 31 (``Depositions by Written Questions'') address 
deposition testimony, and require such written notice. The Board 
believes subsection 821.19(a) is fully consistent with FRCPs 30 and 31; 
therefore, the Board intends to retain the text of subsection (a) and 
simply add a reference to the Federal Rules.
2. Subsection (b)
    Subsection (b), entitled ``[e]xchange of information by the 
parties,'' is amended to state: ``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.'' The NTSB herein strikes the previous language at the 
beginning of subsection (b), which allowed parties to set their own 
discovery schedules, as this language is not consistent with FRCPs 26 
(``Duty to Disclose; General Provisions Governing Discovery'') and 34 
(``Producing Documents, Electronically Stored Information, and Tangible 
Things, or Entering onto Land, for Inspections and Other Purposes'').
3. Subsection (c)
    Subsection 821.19(c) is entitled ``[u]se of the Federal Rules of 
Civil Procedure,''

[[Page 63244]]

and describes the NTSB's use of the Federal Rules as instructive, 
rather than mandatory. The NTSB herein strikes that subsection, and 
recodifies the previous subsection (d), entitled, ``Failure to provide 
or preserve evidence,'' as new subsection (c). The text of that 
subsection will remain unchanged. The NTSB will read this subsection in 
conjunction with FRCP 11 (``Signing Pleadings, Motions, and Other 
Papers; Representations to the Court; Sanctions''), which provides 
sanction for noncompliance with discovery obligations.
4. Subsection (d)
    Subsection 2(b)(2)(E) of the Pilot's Bill of Rights requires the 
FAA to make available the releasable portions of its EIR concerning 
each individual against whose certificate it takes action. The 
disclosure must occur in a timely manner, unless doing so would 
threaten the integrity of the investigation. The FAA's guidance to its 
inspectors concerning implementation of Pilot's Bill of Rights' 
provisions indicates the FAA intends to release the EIRs 
contemporaneously with the FAA's letters of investigation. FAA Notice N 
8900.195 (Aug. 8, 2012), available at http://fsims.faa.gov/wdocs/notices/n8900_195.htm (to be incorporated in FAA Order 8900.1).
    In order to implement this provision of the statute, the NTSB 
herein adds new subsection 821.19(d), entitled ``Motion to dismiss for 
failure to include copy of releasable portion of Enforcement 
Investigative Report (EIR).'' This new subsection states as follows: 
``(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.''
    The NTSB will only enforce the statutory mandate for the FAA to 
make available the releasable portions of the EIR in cases coming 
within the purview of the Board's jurisdiction. Therefore, the NTSB 
implements this requirement by way of a motion to dismiss, rather than 
as a predicate to a respondent's filing of an appeal.

C. Section 821.38: Evidence

    The NTSB herein changes the text of section 821.38, concerning 
evidence, to read as follows: ``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.'' This change 
is consistent with section 2(a) of the Pilot's Bill of Rights, which 
mandates the Federal Rules of Evidence be applied to NTSB proceedings 
under part 821, subparts C, D, and F ``to the extent practicable.''
    The previous version of section 821.38 permitted hearsay evidence. 
Under the provision in the Pilot's Bill of Rights requiring application 
of the Federal Rules of Evidence ``to the extent practicable,'' the 
NTSB believes NTSB law judges must exclude hearsay evidence unless an 
exception to the hearsay rule applies. Therefore, the language from the 
previous rule permitting hearsay (to include hearsay within hearsay) is 
stricken from the rule.

D. Section 821.64: Judicial Review

    Subsection 3(d), paragraph (1) of the Pilot's Bill of Rights 
provides for judicial review in either a Federal district court or a 
Federal court of appeals. Subsection 821.64(a) of the Board's Rules of 
Practice previously informed parties they may seek judicial review ``by 
the filing of a petition for review with the appropriate United States 
Court of Appeals within 60 days of the date of entry (i.e., service 
date) of the Board's order.'' The Board herein adds ``or United States 
District Court'' to the first sentence, in accordance with the Pilot's 
Bill of Rights.

V. Regulatory Analysis

    This rule is not a ``significant regulatory action'' under section 
3(f) of Executive Order 12866, Regulatory Planning and Review, and does 
not require an assessment of the potential costs and benefits under 
section 6(a)(3) of that Order. As such, the Office of Management and 
Budget has not reviewed this rule under Executive Order 12866. 
Likewise, this rule does not require an analysis under the Unfunded 
Mandates Reform Act, 2 U.S.C. 1501-1571, or the National Environmental 
Policy Act, 42 U.S.C. 4321-4347.
    In addition, the NTSB has considered whether this rule would have a 
significant economic impact on a substantial number of small entities, 
under the Regulatory Flexibility Act (5 U.S.C. 601-612). The NTSB 
certifies under 5 U.S.C. 605(b) that this rule would not have a 
significant economic impact on a substantial number of small entities. 
Moreover, in accordance with 5 U.S.C. 605(b), the NTSB will submit this 
certification to the Chief Counsel for Advocacy at the Small Business 
Administration.
    Moreover, the NTSB does not anticipate this rule will have a 
substantial, direct effect on state or local governments or will 
preempt state law; as such, this rule does not have implications for 
federalism under Executive Order 13132, Federalism. This 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.
    The NTSB invites comments relating to any of the foregoing 
determinations and notes the most helpful comments reference a specific 
portion of the proposal, explain the reason for any

[[Page 63245]]

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

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. Add Sec.  821.5 to Subpart B to read as follows:


Sec.  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.

0
3. Revise Sec.  821.19 to read as follows:


Sec.  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.
    (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.

0
4. Revise Sec.  821.38 to read as follows:


Sec.  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.

0
5. In Sec.  821.64, revise paragraph (a) to read as follows:


Sec.  821.64  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]
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