[Federal Register Volume 59, Number 219 (Tuesday, November 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28074]
[[Page Unknown]]
[Federal Register: November 15, 1994]
_______________________________________________________________________
Part VII
National Transportation Safety Board
_______________________________________________________________________
49 CFR Parts 821 and 826
Rules of Practice for Aviation and Civil Penalty Proceedings; Final
Rules
NATIONAL TRANSPORTATION SAFETY BOARD
49 CFR Part 821
Aviation Rules of Practice; General Revisions
AGENCY: National Transportation Safety Board.
ACTION: Final rules.
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SUMMARY: The NTSB is adopting numerous revisions to its rules of
practice governing air safety enforcement and related cases. These
revisions are intended to improve the efficiency and fairness of these
rules of practice.
EFFECTIVE DATE: The new rules are effective on January 17, 1995.
FOR FURTHER INFORMATION CONTACT: Jane F. Mackall, (202) 382-6540.
SUPPLEMENTARY INFORMATION: By notice (NPR) in the Federal Register
published October 20, 1993 (58 FR 54102), the NTSB proposed to revise
its rules, at 49 CFR Part 821, that govern practice and procedure in
aviation safety enforcement and related cases. The NPR identified a
number of rules that we believed should be revised, and we invited
users of our rules to recommend other rule changes they considered
necessary or desirable. We received six comments and two replies.1
What follows is a rule-by-rule discussion of the changes we are
adopting here.2
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\1\Comments were filed by the Aircraft Owners and Pilots
Association (AOPA), the Experimental Aircraft Association (EAA), the
Federal Aviation Administration (FAA), attorney Mark T. McDermott,
the National Transportation Safety Board Bar Association (NTSB Bar),
and North American Aviation Properties, Inc. (NAAP). Replies were
filed by the FAA and NAAP.
\2\Where the parties had no comments and we have no further
changes, the proposed rule is adopted without discussion. There are
also minor editorial changes that we have not discussed. Changes
proposed by the parties but not adopted here have been considered
nevertheless.
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1. Although we proposed no change to Sec. 821.1, which contains
definitions used in the rules of practice, the FAA proposes that we
expand the definition of ``initial decision'' to include orders on
motions that have the effect of terminating the proceeding, such as
motions for summary judgment. We will adopt that suggestion.
2. We proposed adding a new Sec. 821.3 in which the letter prefixes
of our docket-numbering system are explained. The NTSB Bar comments
that the current numbering system is self-explanatory, and sees no need
for the proposed addition. In contrast, NAAP thinks this change is
useful, especially for pro se participants in Board proceedings. We can
see only benefits, and adopt the proposal, as corrected by the
FAA.3 We have considered the FAA's other proposed additions, but
do not believe them necessary to this relatively simple rule, nor do we
see a need to include the FAA case number on our documents. We have,
however, updated the statutory citations to reflect the new
codification completed in Pub. L. 103-272.
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\3\The FAA notes that ``CD'' stands for certificate denial, not
certificates of denial.
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3. We proposed to revise Sec. 821.6(d) to require notices of
appearance from parties' representatives as well as their attorneys.
NAAP contends that pro se participants should be discouraged and
objects to provisions allowing the participation of non-attorney
representatives. We recognize disadvantages in pro se participation
and, in our information provided respondents on their filing of a
notice of appeal, we invite early retention of counsel. We will not,
however, go further, as we do not intend to place greater burdens on
respondents by requiring them to hire and pay counsel. Neither the
Board's enabling statute nor the Administrative Procedure Act, 5 U.S.C.
500 et seq., requires representation only by attorneys. NAAP's citation
to the FA Act, Sec. 1001, relating to the precursor Civil Aeronautics
Board, does not govern.
4. Our current rules contain many different copy requirements that
often are not followed by the parties. In subparagraph Sec. 821.7(b),
we proposed to reduce the number to an original and 1 copy, except
where otherwise provided in the rules. We attempted throughout to
minimize the number of copies required of the parties. We sought
comment especially on whether there should be one uniform copy
requirement of an original and 4 copies. In this rule, we also proposed
to permit filing and service of pleadings via facsimile transmission.
Most parties that commented on the copy requirement prefer a
uniform requirement of an original and 1 copy. We will adopt one rule
for all documents, but must require more than 1 copy, as that is not
always adequate for our use (for example, we need more than 1 copy of
briefs). At a time when the government is increasingly assessing fees
for services, it would be inappropriate for the Board to subsidize
parties' copying expenses. An original and 3 copies will be required.
Our proposal to allow filing by facsimile produced more questions
and complications than expected. Accordingly, we will continue current
practice and not adopt the proposal. Faxes may continue to be used as a
convenience, for example when immediate receipt by the Board is
required, but will not substitute for any filing or copy requirement of
these rules. Thus, the document that is faxed must also be sent to the
Board via an authorized service method, with the confirmation copy to
be noted as such (to minimize confusion). This is normal business
practice, and will not create a problem for the Board provided parties
properly indicate confirmation copies.
As recommended, we have added addresses and details the parties
suggested. We will defer, pending technology improvements, the proposal
that we accept two-sided copies.
5. The most significant changes proposed to Sec. 821.8 related to
our use of certified mail in serving our decisions and our addition of
a sample certificate of service. As to service by others, we have
adopted the suggested changes to the sample certificate. As to our
service via certified mail, we will adopt the proposed change. That is,
we will discontinue serving the FAA via certified mail. We are aware of
no receipt problem, having had no difficulty receiving first class mail
sent us by the FAA. We are not persuaded by the FAA's equal treatment
argument. Certified mail for respondents is appropriate, in light of
the nature of the proceedings and their effect on them.
It was suggested that the Board place the service date on the front
of every document it serves. We agree, and will do so. We do not agree,
however, with the suggestion that, prior to the appearance of an
attorney or other representative, service be made not only on the
carrier's designated agent (see Sec. 821.8(d)), but also on the
carrier's chief executive. The purpose of the agent here is to receive
service; it is reasonable to expect the agent will promptly advise its
principal.
6. Our proposal, in Sec. 821.9, to liberalize the filing of amicus
curiae briefs was well received. We do not, however, see the need to
adopt the FAA's suggestion that the standard for filing be the same as
for intervention generally. The rule is intended to be more flexible:
amicus briefs are encouraged, but may be disallowed if too late.
EAA and NAAP, in connection with their discussion of amicus briefs,
recommend that the Board hear oral argument more often, and object to
current rule Sec. 821.48(g), which provides that it will not normally
be held. We are not inclined to change our rules or practice in this
regard. The Aviation Safety Enforcement docket lends itself to review
on a written record. On appeal, the issues are clearly set forth, and
may be fully argued in writing. Nevertheless, where we believe oral
argument, with discussion and questioning, would be useful, we will not
hesitate to schedule it. Accordingly, the rule is adopted as proposed.
7. In our NPR, we invited suggestions for rule changes other than
those we proposed. The NTSB Bar proposed to permit parties to stipulate
to extensions of time ``or other appropriate relief'' and to provide
that extensions of time or other relief will be granted where there has
been ``excusable neglect'' and no prejudice results. We decline to
adopt this proposed change. The Board must be able to control its
proceedings and liberally grants extensions. We will, however, codify
our existing practice by adding a provision to Sec. 821.11 allowing
oral requests for extension of time.
8. Our first proposed change to Sec. 821.12, adding a reference to
compliance with statutory requirements in making amendments to a
complaint, engendered considerable discussion. Mark McDermott comments
that the FAA is making too many last-minute amendments, and suggests
that the Board should prohibit amendments in emergency cases. NAAP
believes that our proposed reference is too narrow. It proposes, and
argues that the law requires, that the Administrator be required to
reissue any amended order, and that amendment at the hearing not be
permitted. The FAA responds that a rule requiring amendments to be
consistent with informal conference requirements is not necessary, but
if one is adopted, our proposal should be modified because the statute
can be met by other means. It recommends we include language directly
from (former) 49 U.S.C. App. 1429(a). The FAA continues that amendments
to complaints should be allowed by the law judge when respondent will
not be unduly prejudiced and that technical amendments should be
permitted at any time. It notes that parties are already able to object
to amendments that do not comply with Oceanair of Florida v. Nat.
Transp. Safety Bd., 888 F.2d 767 (11th Cir. 1989).
We are not convinced that our current practice does not adequately
balance the interests and rights of the parties. The law judge has
discretion to allow amendment of the complaint, and does so only after
full consideration of the positions of the parties and a finding that
amendment will not prejudice respondent, or prohibit a fair hearing.
Commentors have pointed to no particular case where they believe these
concerns were not properly balanced, and the number of amendments, per
se, does not control any conclusion in this regard.
Accordingly, we will not amend the rule to restrict complaint
amendments but will continue to handle the question case by case. There
were no comments on our proposal to permit withdrawal of some pleadings
without our permission, and we will adopt that language as drafted.
9. We offered no proposed change to Sec. 821.13, which governs the
manner in which a party may waive rights (for example, the statutory
right in an emergency case that a decision be issued in 60 days). The
FAA proposes that we allow oral waivers, especially oral waiver of
expedited review in emergencies, as the FAA believes this is common
practice. We agree, however, with NAAP, which replies that waivers need
to be on the record, and this is what the rule currently requires. To
the extent it is not being done (and we are not aware of a serious
problem in this regard), the potential for later disputes increases,
and we encourage all parties to ensure that waivers are memorialized in
the record in some fashion.
10. In light of the parties' suggestions that we specify in the
rules to what office documents should be sent, we will amend
Sec. 821.14 to include a reference to the Office of General Counsel,
rather than the current broad reference to the Board.
11. The rule changes proposed to Sec. 821.19 involve discovery and
the preservation of evidence. Mark McDermott suggests that we should
only require that discovery documents be filed with the law judges when
there is a dispute. The FAA agrees, arguing that review of this
material can prejudice the law judge due to prehearing familiarity with
a document that is subsequently excluded. NAAP disagrees, and believes
that law judges should have prehearing familiarity with the issues and
have the skills to disregard excluded evidence.
We have found that both discovery requests and responses are useful
in reaching an informed decision, and we see no justifiable concern
that our law judges are unable to ignore information they may have read
that is later excluded from the record. Advance information about the
case, as can come from familiarity with the discovery materials,
promotes efficient processing and allows the law judge to be as
prepared as the parties when the hearing starts.
The parties also commented extensively on their perceptions of
inequities in the discovery process. Mr. McDermott, for example, seeks
a rule specifically to authorize protective orders in the case of FAA
harassment through excessive discovery. EAA questions whether our
proposed change to subparagraph (d) is strong enough. It and NAAP
support a more explicit rule authorizing sanctions for failure to
comply with discovery. NAAP also seeks a rule that precludes the FAA
from using discovery as a substitute for a prior investigation,4
and believes that the proposed subparagraph (d) does not do enough to
prevent destruction of relevant evidence, namely air traffic control
tapes.
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\4\NAAP cites Administrator v. Smith, 4 NTSB 978, 979 note 6
(1983), in support, but we do not read that case so broadly as to
warrant an absolute rule. The decision demonstrates, to the
contrary, that the circumstances of each case must be considered in
determining the appropriate sanction.
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The FAA, in turn, believes that expansive discovery should be
curtailed, and replies to NAAP that subparagraph (d) is not necessary
in light of Administrator v. Ryan, NTSB Order EA-3238 (1990) (when
evidence has been requested in a timely fashion, it is incumbent on the
Administrator to ensure its safekeeping). If we adopt this proposal,
the FAA argues, its language should be more specific and separate the
failure to preserve from the failure to produce. The FAA also suggests
numerous interpretive difficulties with the wording of this proposed
rule.
The parties' disagreement regarding evidence production, and ATC
tapes in particular, stems from the FAA's practice of reusing tapes in
15-day cycles if no request to preserve the tape has been made. We have
accepted this practice as a reasonable accommodation of the interests
of both the FAA and airmen. We have no authority to force FAA to amend
its practice, nor are we convinced by the arguments made here that the
FAA's failure to preserve a tape should in every case result in an
adverse conclusion regarding its contents.5
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\5\In connection with review of our discovery rules, we have
considered the recent amendment to the Federal Rules.
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Beyond that, and as a general rule, we believe that the proposed
rule is flexible, merely reflects our current precedent and practice,
and will allow our law judges, as appropriate, ample authority to
compel discovery, to curtail its abuse, and to fashion appropriate
remedies in the event it is demonstrated that either party unreasonably
has failed to respond completely or has improperly failed to preserve
timely requested evidence.
12. In Sec. 821.20(c), we proposed changes that would codify case
law on witness fees and apply to Board employee witnesses in
enforcement cases the same rules we apply to the testimony of our
employees in accident-related civil proceedings. We received only one
comment, suggesting that this rule be expanded to FAA employees as
well, thus potentially limiting the testimony of FAA personnel who
assisted the Board in its investigation. This is relevant in cases
where an investigation of an accident or incident is followed by an FAA
enforcement action. The FAA opposes this proposal, stating it would
raise questions about the FAA's ability or willingness to assist the
Board in its investigations.
We are well aware of NAAP's concerns, but are not convinced that
the rule it proposes should be adopted. Our declination here, however,
should not be interpreted as lack of interest in the issue. To the
contrary, we specifically reserve the point, and intend to study it in
the future and continue to discuss with the FAA the proper relationship
between the two functions.
13. We proposed minor changes to Sec. 821.24(d), dealing with
medical proceedings, to reflect the special issuance process. Mr.
McDermott proposes to make the exchange of medical information a mutual
obligation instead of putting restrictions on new evidence only on
petitioner, as the rule does. He believes that the FAA should be
precluded from using medical evidence not provided petitioner at least
30 days before the hearing. FAA responds that, as a practical matter,
all medical evidence is in respondent's hands.
Our change in (e) was intended simply to address the situation
where, prior to hearing, but unknown to the FAA, a petitioner undergoes
new testing or evaluation. If this occurs, the FAA is denied the
opportunity to review, in advance of the hearing, medical conclusions
that may be different from the medical information (typically obtained
from petitioner or from his physicians, with his consent) on which the
FAA's denial of certification was based. If the FAA is surprised at the
hearing by new evidence, it must have the opportunity for its experts
to review the information.6 In contrast, from a petitioner's
standpoint, whatever medical data the FAA has received is either
familiar to petitioner, having come from his own doctors, or is
discoverable by him prior to the hearing. While we therefore will not
make this change proposed by Mr. McDermott, we will add a clarifying
sentence to subparagraph (d) explicitly indicating our lack of
jurisdiction to review or order special issuances.
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\6\Potentially, that review could lead to a change in the FAA's
position and issuance of a certificate.
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14. Section 821.31(a), dealing with filing of the complaint, had
produced some confusion in the past due to use of the phrase ``filed
upon the Administrator'' (see Administrator v. Simonton, NTSB Order EA-
3734 (1992)), and we proposed to change the phrase to ``received by the
Administrator.'' This produced similar concerns. AOPA and Mr. McDermott
think this makes the rule more confusing, and suggest that we count
from a service date, as we use service dates for other purposes and
this will help the infrequent user of the rules.
We agree. The rule will provide that the complaint must be filed
within 10 days of service of the notice of appeal on the Administrator.
This will also respond to the FAA's concern that the current 5 days is
too short.7
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\7\We are not convinced, however, that the FAA needs 20 days for
this filing.
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15. Although we proposed no change, a number of parties commented
on our stale complaint rule, Sec. 821.33. The NTSB Bar, in cases where
6 months has passed before a Notice of Proposed Certificate Action has
been issued, wants the FAA's complaint to contain a certification that
good cause existed for the delay, and where lack of qualification is
alleged, the certification would state that this allegation was made in
good faith and was warranted under the facts and the law. The FAA
opposes these suggestions, citing our earlier rejection of a
certification requirement (Regulatory Docket No. 5, 11/29/88).
The comments of Mark McDermott and the FAA reflect some confusion
in the meaning and implementing of subparagraph (b) of the stale
complaint rule (i.e., where lack of qualification is alleged, law judge
first determines whether it is presented and, if an issue of
qualification is raised, the law judge is to proceed to a hearing on
that issue only). The FAA disagrees, however, with Mr. McDermott's
comment that failure to establish lack of qualifications requires
dismissal of stale allegations, noting that it still has the
opportunity to justify the delay or show public interest in proceeding
despite the delay.
We recognize that subparagraph (b) of the stale complaint rule has
caused some interpretive difficulty in the past, but the problem has
not been insurmountable and does not require immediate amendment.
Because issues regarding this rule are raised in connection with our
proposed (and interim) civil penalty rules, we will defer any rule
changes here.
16. In response to our proposed change to subparagraph (a) of
Sec. 821.37, dealing with the selection of the place for hearing, the
FAA agrees that foreign hearings should be rare if we have authority to
hold them, but believes we do not. In support, it argues that Sec. 5(1)
of the Department of Transportation Act of 1966, Pub. L. 89-670,
authorized Civil Aeronautics Board hearings only in the U.S. Although
the Independent Safety Board Act of 1974 has no similar language, the
FAA argues, we should not assume change was intended.
Our enabling statute does not prohibit foreign hearings, as
Congress easily could have done given the prior language. Accordingly,
we are not convinced, based on the FAA's argument, that we should
change the rule here. Although we will adopt the rule as proposed, any
party is free to argue this point further in a particular case.
17. We proposed to change the evidence rule found in Sec. 821.38 to
codify our recent ruling in Administrator v. Repacholi, NTSB Order No.
EA-3888 (1993), permitting hearsay in Board proceedings, with its
trustworthiness going to the weight and credibility accorded it. Those
commentors in opposition (Mark McDermott and AOPA) have not convinced
us that our judges are not equipped fairly to measure trustworthiness
and credibility of all forms of hearsay, just as they otherwise weigh
credibility, and we believe NAAP's changes create unreasonable hurdles
to the use of such evidence--even greater hurdles than now exist.
The parties uniformly had difficulty with our proposal in
subparagraph (c) to assume the authenticity of evidence absent an
objection. It appears that implementation problems would outweigh any
benefit such a rule might have in our proceedings and, therefore, we
will not adopt it. Nevertheless, we encourage parties to use requests
to admit as well as stipulations to establish the authenticity of
documents in advance of a hearing. In response to the FAA's comment
that subparagraph (b) does not properly reflect the Administrative
Procedure Act, we will amend that provision, and we will modify the
offer of proof language to make it permissive, rather than mandatory.
18. The NTSB Bar has proposed that, in Sec. 821.42 (initial
decisions by law judges), we require the law judge include in his
opinion whether the Administrator was substantially justified so that a
later EAJA\8\ case may be expedited. The FAA responds, and we agree,
that this is premature and wasteful (e.g., qualification for fee
recovery not having been determined) and inconsistent with the separate
statutory EAJA scheme that requires a final Board order on the merits.
The practice of the same law judge hearing any EAJA application
promotes the efficient administration the commentor seeks.
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\8\Equal Access to Justice Act.
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19. Although there were only supporting comments to our proposed
change in Sec. 821.47, we are adding a discussion here of when the law
judge loses jurisdiction, with further action being by the Board
itself. The addition in part reflects current law (see Administrator v.
Doll, NTSB Order EA-3439 (1991) at footnote 9), and is being added in
light of frequent questions in this regard. The new portion of the rule
provides a method for handling requests to a law judge that he
reconsider his own decision. For obvious reasons, the new procedure
will not apply in emergency cases.
20. In response to our proposed revisions to Sec. 821.48(e), NAAP
suggests that we remove the sentence in subparagraph (g) regarding oral
argument. As discussed in connection with Sec. 821.9, we decline to
make this change, and in light of our conclusions regarding a uniform
copy requirement, we will delete subparagraph (f). Although NAAP also
proposes a shorter version of (e), we believe our proposed language is
more appropriate to assist the many pro se participants in our
proceedings.
21. We proposed to revise Secs. 821.49 and 821.57(c) to indicate
that, if the Board raises a new issue it finds necessary to resolve the
proceeding, it will afford the parties the opportunity to submit
argument if it believes that such an opportunity is necessary or
appropriate. We received a number of comments in opposition to this
change, but believe they stem from misunderstanding of our practice and
our intent.
We have used this approach on many occasions, with no complaint
from any party. Compare, e.g., Administrator v. Nyren, NTSB Order EA-
3930 (1993) (Board reopened for further argument on effect of the FAA
Civil Penalty Administrative Assessment Act of 1992 on the shared
expense rule) and Administrator v. Miller, NTSB Order EA-3581 (1992)
(Board redefined issue before it and dismissed complaint on finding
that Administrator's interpretation of his rule was not reasonable);
Administrator v. Shuster, NTSB Order EA-3613 (1992) (Board dismissed
certain charges based on its interpretation of medical application);
and Administrator v. Frohmuth and Dworak, NTSB Order EA-3816 (1993)
(Board dismissed complaints based on a new, expanded formulation of
case law excusing altitude deviations caused by pilot mistake).
Furthermore, Board action is subject to review on petition for
reconsideration. On further review, we have conformed the language in
Sec. 821.57 with the language in Sec. 821.49.
22. The parties offered no comment regarding our proposed change to
Sec. 821.50, but NAAP proposes that we amend subparagraph (f) to
indicate that the filing of a petition under this section will always
stay the effective date of the order. We decline to make this change.
As we recently noted in Administrator v. Frost, NTSB Order EA-3989
(1993), we agree with this sentiment as a general rule. Nevertheless,
NAAP has not convinced us that we do not and should not retain the
flexibility (whether specifically expressed in our rules or not) to
order otherwise should extraordinary circumstances warrant.
23. In addition to our wording change to Sec. 821.54 to reflect
proceedings under Section 609(c)(3) of the Federal Aviation Act where
the Administrator issues ``immediately effective'' orders, see
Administrator v. Zacher, NTSB Order EA-3972 (1993), the FAA recommends,
and we agree, that the title of Subpart I should be changed to ``Rules
Applicable to Emergency Proceedings and other Immediately Effective
Orders.''
As to the substance of that rule, the parties urge a stricter
construction in various ways. The NTSB Bar and EAA ask us to add a
requirement to subparagraph (a) that the FAA justify the emergency, and
the NTSB Bar urges that the issue of whether a case is an emergency be
subject to our review separately from the merits of the case. Mr.
McDermott recommends that the statute be strictly construed in favor of
respondents and that the Board streamline its process to shorten its
timetable in these cases.
We believe that use of emergency authority should be extraordinary,
for example when there is an immediate and exceptional aviation safety
risk. Nevertheless, nothing raised by the parties here has convinced us
we have erred, as a legal matter, in our long-established precedent\9\
holding that we do not have jurisdiction to review the Administrator's
use of his emergency power. Parties may seek review of those decisions
in the courts.
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\9\See, e.g., Administrator v. Anderson, 5 NTSB 564, 565 (1985).
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We also agree, not only with emergency cases but with all cases on
our docket, that affected individuals deserve timely and prompt
decisionmaking. Toward that end, we have made clearing our case backlog
a priority.
24. We proposed to add a new subparagraph (f) to Sec. 821.55 to
leave no doubt that discovery was available in emergency proceedings.
In response to EAA's and NAAP's concern that authority to sanction
noncompliance with discovery be clear, we note that our proposal makes
Sec. 821.19 applicable to emergency cases. As the FAA suggests, we have
added references to ``immediately effective orders,'' and we have
deleted references to Sec. 821.56 and Sec. 821.57, replacing them with
a general reference to ``this subpart.''
Despite the FAA's concern that subparagraph (e) is confusing, we
have not had that experience. We note that this rule is intended to
preclude separate filings that would complicate or prevent compliance
with the statutory deadline. The substance of objections (such as
jurisdictional ones that would otherwise be raised in a motion to
dismiss) is to be raised in the answer, or in otherwise permitted
pleadings.
On further review, we are amending subparagraph (b) on our own
motion to require either that the appeal attach a copy of the
Administrator's order or that it indicate whether it is an emergency.
This will greatly assist us in efficiently processing emergency cases.
25. In response to the comments, we will modify Sec. 821.56(a),
Notice of hearing, to clarify its applicability to immediately
effective orders. We are not convinced that NAAP's change, to retain
the current timetable that the hearing be set no later than 25 days
after the Board's receipt of the complaint should be made, as our
change to refer to the service date is intended to help avoid
processing delays and to allow parties to calculate key dates.
26. In response to concerns raised by commentors regarding our
proposal changing the time periods for filing appeal briefs and
replies, we will amend the rule to allow 7 days for reply briefs, thus
providing both sides equal time. We have also added, in response to the
concern of the FAA that in a particular case there may be no overnight
or facsimile service available, an amendment allowing use of other
transmission services if approved by the Board.
27. EAA and Mark McDermott object to our proposal at Sec. 821.63,
extending sanctions for ex parte communications to include sanctioning
counsel. On the other hand, NAAP supports sanctioning counsel rather
than the existing rule that would sanction the client. We will adopt
the rule as proposed. Contrary to the concerns expressed, the Board is
well able to distinguish between vigorous advocacy and unlawful
attempts to influence the decisionmaker. Counsel must be aware of and
respect the difference, and it may not be appropriate in a particular
case that the penalty for breach of the ex parte rules be assessed
against the client.
28. We proposed to amend Sec. 821.64 to require that petitions for
stay pending judicial review be filed before the effective date of the
order. AOPA is concerned that this change was proposed for the Board's
convenience, and argues that there may be reasons for seeking a stay
after the order is effective, such as late retention of counsel. Our
proposal stemmed from our concern that we might be without authority to
stay an order when a respondent is already in default or that, as a
matter of policy, we should not stay an order under such circumstances
(e.g., in default by not surrendering the certificate by the ordered
date). We continue to believe that 30 days (the effective date of our
order on appeal) is sufficient time to file a petition for stay. In
response to AOPA's concern about time to hire counsel, we note that the
petition may be pro se, and need not be extensive. Our precedent
regarding the granting or denying of stays pending judicial review is
clear. See Administrator v. Reinhold, NTSB Order EA-4224 (1994).
In light of our experience under the FAA Civil Penalty
Administrative Assessment Act of 1992, we will add a new sentence to
subparagraph (a) of Sec. 821.64 explaining procedures applicable where
the FAA appeals our order.
29. Finally, we will amend the authority references at the start of
the rules and statutory references throughout the rules to reflect the
new codification enacted in Pub.L. 103-272.
As required by the Regulatory Flexibility Act, we certify that the
amended rules will not have a substantial impact on a significant
number of small entities. The rules are not major rules for the
purposes of Executive Order 12291. We also conclude that this action
will not significantly affect either the quality of the human
environment or the conservation of energy resources, nor will this
action impose any information collection requirements requiring
approval under the Paperwork Reduction Act.
List of Subjects in 49 CFR Part 821
Administrative practice and procedure, Airmen, Aviation safety.
Accordingly, 49 CFR Part 821 is amended as set forth below.
PART 821--RULES OF PRACTICE IN AIR SAFETY PROCEEDINGS
1. The authority citation for Part 821 is revised to read as
follows:
Authority: Title VI, Federal Aviation Act of 1958, as amended
(49 U.S.C. 40101 et seq.); Independent Safety Board Act of 1974,
Pub.L. 93-633, 88 Stat. 2166 (49 U.S.C. 1101 et seq.), and FAA Civil
Penalty Administrative Assessment Act of 1992, Pub.L. 102-345 (49
U.S.C. 46301), unless otherwise noted.
2. Section 821.1 is amended by revising the definition of ``initial
decision'' to read as follows:
Sec. 821.1 Definitions.
* * * * *
Initial decision means the law judge's decision on the issue
remaining for disposition at the close of a hearing before him and/or
an order that has the effect of terminating the proceeding, such as one
granting a motion to dismiss in lieu of an answer, as provided in
Sec. 821.17, and one granting a motion for summary judgment. Initial
decision does not include cases where the record is certified to the
Board, with or without a recommended decision, orders partly granting a
motion to dismiss and requiring an answer to any remaining allegations,
or rulings by the law judge on interlocutory matters appealed to the
Board under Sec. 821.16;
* * * * *
3. A new Sec. 821.3 is added to subpart A to read as follows:
Sec. 821.3 Description of docket numbering system.
In addition to sequential numbering of cases as received, each case
formally handled by the Board receives a letter prefix. These letter
prefixes reflect the case type: ``SE'' for the safety enforcement
(suspension/revocation) docket; ``SM'' (safety medical) for an
enforcement case involving a medical application; ``SR'' for a case
involving safety registration issues under 49 U.S.C. 44101 et seq.;
``CD'' for certificate denial (see 49 U.S.C. 44703); a new ``CP'' for
cases in which the Administrator seeks a civil penalty; and ``EAJA''
for applications seeking Equal Access to Justice Act awards.
4. Section 821.6 is amended by revising paragraph (d) to read as
follows:
Sec. 821.6 Appearances and rights of witnesses.
* * * * *
(d) Any party to a proceeding who is represented by an attorney or
party representative shall notify the Board of the name and address of
that attorney or representative. In the event of a change in attorney
or representative of record, a party shall notify the Board, in the
manner provided in Sec. 821.7(a), and the other parties to the
proceeding, prior to the attorney or representative participating in
any way, including the filing of documents, in any proceeding.
5. Section 821.7 is amended by revising paragraphs (a) and (b) to
read as follows:
Sec. 821.7 Filing of documents with the Board.
(a) Filing address, date and method of filing. Generally, documents
are to be filed with the Office of Administrative Law Judges, National
Transportation Safety Board, 490 L'Enfant Plaza East, S.W., Washington,
DC 20594-2000, and addressed to the assigned law judge, if any.
Subsequent to the filing of a notice of appeal from a law judge's
initial decision or order terminating the proceeding (written or oral),
or a decision permitting an interlocutory appeal, all documents should
be directed to the Office of General Counsel, also at the above
address. Filing of any document shall be by personal delivery, by U.S.
Postal Service first class mail, or by overnight mail delivery service.
Except as provided in Sec. 821.57, facsimile filing is permitted as a
convenience to the parties only. It does not substitute for filing
requirements in this part, and any fax transmission to the Board must
be followed, no later than the following busniess day, by a
confirmation copy, clearly marked as such, sent by a method of service
authorized in this paragraph. Unless otherwise shown to be inaccurate,
documents shall be deemed filed on the date of personal delivery, on
the send date shown on the facsimile (provided a confirmation copy is
properly served), 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.
(b) Number of copies. An executed original and 3 copies of each
document shall be filed with the Board. Copies need not be signed, but
the name of the person signing the original shall be shown.
* * * * *
6. Section 821.8 is revised 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 served on all parties to the proceeding by the person
filing them. A certificate of service shall accompany all documents
when they are tendered for filing and shall certify concurrent service
on the Board and the parties. Certificates of service shall be in
substantially the following form:
I hereby certify that I have this day served the foregoing
document(s) on the following parties' counsel or designated
representatives [or on the party, if without counsel or
representative] at the address indicated by [specify the method of
service: first class mail, personal service, etc.] [indicate names
and addresses here]
Dated at ________________, this ______ day of ______, 19______.
(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 on the party.
(b) Method of service. Except as set forth in paragraph (c) and (d)
of this section and as required by Sec. 821.57(b), the method of
service is the same as that set forth in Sec. 821.7(a) for filing of
documents. The Board will serve orders, notices of hearing, and written
initial decisions on attorneys or representatives designated under
Sec. 821.7(f) or, if no attorney or representative, on the party
itself, and will do so by certified mail, except that service on the
Administrator will be by first-class mail.
(c) Where service shall be made. Except for personal service,
addresses for service of documents shall be those in the official
record or, if none in the case of the Federal Aviation Administration,
the Office of the Chief Counsel, Washington, DC 20591. In the case of
an agent designated by an air carrier under section 1005(b) of the Act,
service of any sort may be accomplished only at the agent's office or
usual place of residence.
(d) Presumption of service. There shall be a presumption of lawful
service:
(1) When acknowledgement of receipt is 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); or
(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 undelivered, unclaimed, or refused.
(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).
7. Section 821.9 is revised to read as follows:
Sec. 821.9 Intervention and amicus appearance.
(a) Intervention. Any person may move for leave to intervene in a
proceeding and may become a party thereto, if it is found that such
person may be bound by any order to be entered in the proceeding, or
that such person has a property, financial, or other legitimate
interest that will not be adequately represented by existing parties,
and that such intervention will not unduly broaden the issues or delay
the proceedings. Except for good cause shown, no motion for leave to
intervene will be entertained if filed less than 10 days prior to
hearing. The extent to which an intervenor may participate in the
proceedings is within the law judge's discretion, and depends on the
above criteria.
(b) Amicus curiae briefs. A brief of amicus curiae in matters on
appeal from initial decisions may be filed if accompanied by written
consent of all the parties, or if, in the opinion of the Board's
General Counsel, the brief will not unduly broaden the matters at issue
or unduly prejudice any party to the litigation. A brief may be
conditionally filed with motion for leave. The motion shall identify
the interest of the movant and shall state the reasons why a brief of
amicus curiae is desirable. Such brief and motion shall be filed within
the time allowed the party whose position as to affirmance or reversal
the brief would support, unless cause for late filing is shown, in
which event the General Counsel may provide an opportunity for response
as a condition of acceptance.
8. Section 821.11 is revised to read as follows:
Sec. 821.11 Extension of time.
(a) Upon written request filed with the Board and served on all
parties, or by oral request with any extension granted confirmed in
writing and served on all parties, and for good cause shown, the chief
judge, the law judge, or the Board may grant an extension of time to
file any document except a petition for reconsideration.
(b) The Board's General Counsel is authorized to grant unopposed
extensions on timely oral request without a showing of good cause in
cases appealed to the Board from a decision of a law judge. Written
confirmation of such a grant must promptly be sent by the requesting
party to the Board and served on other parties.
(c) Extensions of time to file petitions for reconsideration will
be granted only in extraordinary circumstances.
9. Section 821.12 is revised to read as follows:
Sec. 821.12 Amendment and withdrawal of pleadings.
(a) Amendment. At any time more than 15 days prior to the hearing,
a party may amend his pleadings by filing the amended pleading with the
Board and serving copies on the other parties. After that time,
amendment shall be allowed only at the discretion of the law judge. In
the case of amendment to an answerable pleading, the law judge shall
allow the adverse party a reasonable time to object or answer.
Amendments to complaints shall be consistent with the requirements of
49 U.S.C. 44709(c) and 44710(c).
(b) Withdrawal. Except in the case of withdrawal of an appeal to
the Board, withdrawal of a petition for review, withdrawal of a
complaint, or withdrawal of an appeal from an initial decision, a party
may withdraw pleadings only on approval of a law judge or the Board.
9. Section 821.14 is amended by revising paragraph (a) to read as
follows:
Sec. 821.14 Motions.
(a) General. An application to the Board or to a law judge for an
order or ruling not otherwise provided for in this part shall be by
motion. Prior to the assignment of a law judge, all motions shall be
addressed to the chief law judge. Thereafter, and prior to the
expiration of the period within which an appeal from the law judge's
initial decision may be filed, or the certification of the record to
the Board, all motions shall be addressed to the law judge. At all
other times, motions shall be addressed to the Board, Office of General
Counsel. All motions not specifically provided for in any other section
of this part shall be made at an appropriate time, depending on the
nature thereof and the relief requested.
* * * * *
10. Section 821.19 is amended by revising paragraph (b) and adding
a new paragraph (d) to read as follows:
Sec. 821.19 Depositions and other discovery.
* * * * *
(b) Exchange of information by parties. At any time before hearing,
at the instance of either party, the parties or their representatives
may exchange information, such as witness lists, exhibit lists,
curricula vitae and bibliographies of expert witnesses, and other data.
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) may issue an order directing compliance with any ruling made
with respect to discovery. Any party may also use written
interrogatories, requests to admit, or other discovery tools. Copies of
discovery requests and responses shall be served on the law judge
assigned to the proceeding.
* * * * *
(d) Failure to provide or preserve evidence. The failure of any
party to comply with an order of an administrative law judge compelling
discovery or to cooperate in 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, or dismissal.
11. Section 821.20 is amended by revising paragraphs (b) and (c) to
read as follows:
Sec. 821.20 Subpoenas, witness fees, and appearances of Board Members,
officers, or employees.
* * * * *
(b) Witness fees. Witnesses shall be entitled to the same fees and
mileage as are paid to witnesses in the courts of the United States.
The fees shall be paid by the party at whose instance the witness is
subpoenaed or appears. The Board may decline to process a proceeding
further should a party fail to compensate a witness pursuant to this
paragraph.
(c) Board Members, officers, or employees. In order to encourage a
free flow of information to the Board's accident investigators, the
Board disfavors the use of its personnel in enforcement proceedings.
Therefore, the provisions of paragraph (a) of this section are not
applicable to Board Members, officers, or employees, or the production
of documents in their custody. Applications for the attendance of such
persons or the production of such documents at hearing shall be
addressed to the chief law judge or the assigned law judge, as the case
may be, in writing, and shall set forth the need of the moving party
for such testimony, and a showing that such testimony is not now, or
was not otherwise, reasonably available from other sources. The law
judge shall not permit such testimony or documentary evidence to
include any opinion testimony, or any account of statements of a
respondent, made during the Board's investigation of any accident.
12. Section 821.24 is amended by revising paragraphs (a), (d) and
(e) to read as follows:
Sec. 821.24 Initiation of proceedings.
(a) Petition for review. Where the Administrator has denied an
application for the issuance or renewal of an airman certificate, the
applicant may file with the Board a petition for review of the
Administrator's action within 60 days from the time the Administrator's
action was served on petitioner. The petition shall contain a short
statement of the facts on which petitioner's case depends and a
statement of the requested action, and may be in letter form.
* * * * *
(d) Stay of proceeding pending request for special issuance
(restricted certificate). The Board lacks authority to review special
issuances, or to direct that they be issued. Where a request for
special issuance (restricted certificate) has been filed with the
Administrator pursuant to the Federal Aviation Regulations, the Board
will hold a petition for review in abeyance pending final action by the
Administrator or for 180 days from the date of the Administrator's
initial certificate denial, whichever occurs first.
(e) New evidence. If petitioner has undergone medical testing or
evaluation in addition to that already submitted or known to the
Administrator, and wishes to introduce the results into the record, the
new medical evidence must be served on the Administrator at least 30
days before the hearing. Absent good cause, failure timely to serve any
new evidence will result in its exclusion from the record. The
Administrator may amend his answer within 10 days from the date the new
evidence is served to respond to such new evidence.
13. Section 821.30 is amended by revising paragraph (a) to read as
follows:
Sec. 821.30 Initiation of proceedings.
(a) Appeal. A certificate holder may file with the Board an appeal
from an order of the Administrator amending, modifying, suspending, or
revoking a certificate. The appeal shall be filed with the Board within
20 days from the time of service of the order and be accompanied with
proof of service on the Administrator.
* * * * *
14. Section 821.31 is amended by revising paragraph (a) to read as
follows:
Sec. 821.31 Complaint procedure.
(a) Filing, time of filing, and service on respondent. The order of
the Administrator from which an appeal has been taken shall serve as
the complaint. The complaint shall be filed by the Administrator with
the Board within 10 days after the service date of the notice of
appeal.
* * * * *
15. Section 821.35 is amended by revising paragraph (a) to read as
follows:
Sec. 821.35 Assignment, duties, and powers.
(a) Assignment of law judge and duration of assignment. The chief
law judge shall assign a law judge to preside over the proceeding.
Until such assignment, motions, requests, and documents shall be
addressed to the Docket Section, Office of Administrative Law Judges,
for handling by the chief law judge, who may handle these matters
personally or who may delegate all or any of them to other law judges
for decision. After assignment, all motions, requests, and documents
shall be addressed to that law judge. The authority of the assigned law
judge shall terminate upon certification of the record to the Board, or
upon expiration of the period within which appeals from initial
decisions may be filed, or upon the law judge's withdrawal from the
proceeding.
* * * * *
16. Section 821.37 is amended by revising paragraph (a) to read as
follows:
Sec. 821.37 Notice of hearing.
(a) Notice. The chief law judge (or his law judge delegate) or the
law judge to whom the case is assigned shall set a reasonable date,
time and place for the hearing. The notice of the hearing shall be
served at least 30 days in advance thereof, and shall include notice of
the nature of the hearing. The law judge may set the hearing fewer than
30 days after the notice of hearing is served if the parties agree to
an earlier hearing date. In setting the hearing date, due regard shall
be given to any need for discovery. In setting the place of the
hearing, due regard shall be given to the convenience of the parties
and to conservation of Board funds. The location of the witnesses and
the suitability of a site served by a scheduled air carrier are added
factors to be considered in setting the hearing location, as is Board
policy that foreign-held hearings are appropriate only in the most
extraordinary circumstances.
* * * * *
17. Section 821.38 is revised to read as follows:
Sec. 821.38 Evidence.
(a) Every party shall have the right to present a case-in-chief or
defense by oral or documentary evidence, to submit evidence in
rebuttal, and to conduct such cross-examination as may be required for
a full and true disclosure of the facts. Hearsay evidence (including
hearsay within hearsay where there are acceptable circumstantial
indicia of trustworthiness) is admissible.
(b) All material and relevant evidence should be admitted, but a
law judge may exclude unduly repetitious evidence pursuant to
Sec. 556(d) of the Administrative Procedure Act. Any evidence that is
offered and excluded may be described (via an ``offer of proof''), and
that description should be made a part of the record.
18. Section 821.42 is amended by removing paragraph (c) and
redesignating paragraph (d) as (c).
19. Section 821.43 is revised to read as follows:
Sec. 821.43 Effect of law judge's initial decision and filing of an
appeal therefrom.
If an appeal from the initial decision is not timely filed with the
Board by a party, the initial decision shall become final but shall not
be precedent binding on the Board. The filing of a timely appeal shall
stay the initial decision.
20. Section 821.47 is revised to read as follows:
Sec. 821.47 Notice of appeal.
(a) A party may appeal from a law judge's order or from the initial
decision by filing with the Board and serving on the other parties
(pursuant to Sec. 821.8) a notice of appeal within 10 days after an
oral initial decision has been rendered or a written decision or a
final or appealable (see Sec. 821.16) order has been served. At any
time before the date for filing an appeal from an initial decision or
order has passed, the law judge or the Board may, for good cause shown,
extend the time within which to file an appeal, and the law judge may
also reopen the case for good cause on notice to the parties.
(b) A law judge may not reconsider his initial decision once the
time for appealing to the Board from the initial decision has expired
or once an appeal with the Board has been filed. However, a timely
request for reconsideration by the law judge of his decision, filed
before an appeal to the Board has been taken, will stay the deadline
for appealing to the Board until 10 days after the date the law judge
serves his decision on the request. For the purpose of this section, a
request for reconsideration submitted on the same date as a notice of
appeal will be deemed to have been filed first.
21. Section 821.48 is amended by revising paragraph (e) to read as
follows and by removing paragraph (f), and redesignating paragraph (g)
as (f):
Sec. 821.48 Briefs and oral argument.
* * * * *
(e) Other briefs. Subsequent to brief filing, parties may file
citations to supplemental authorities. This procedure may be used only
for identifying new, relevant decisions, not to correct omissions in
briefing or to respond to a reply. No argument may be included in such
filings. Parties shall submit, with any decision, a reference to the
page of the brief to which the decision pertains. Any response shall be
filed within 10 days and shall be similarly limited.
* * * * *
22. Section 821.49 is revised to read as follows:
Sec. 821.49 Issues on appeal.
(a) On appeal, the Board will consider only the following issues:
(1) Are the findings of fact each supported by a preponderance of
reliable, probative, and substantial evidence?
(2) Are conclusions made in accordance with law, precedent, and
policy?
(3) Are the questions on appeal substantial?
(4) Have any prejudicial errors occurred?
(b) If the Board determines that the law judge erred in any respect
or that his order in his initial decision should be changed, the Board
may make any necessary findings and may issue an order in lieu of the
law judge's order or may remand the case for such purposes as the Board
may deem necessary. The Board on its own initiative may raise any
issue, the resolution of which it deems important to a proper
disposition of the proceedings. If necessary or appropriate, a
reasonable opportunity shall be afforded the parties to comment.
23. Section 821.50 is amended by revising paragraphs (a) and (b) to
read as follows:
Sec. 821.50 Petitions for rehearing, reargument, reconsideration, or
modification of an order of the Board.
(a) General. Any party to a proceeding may petition for rehearing,
reargument, reconsideration, or modification of a Board order on appeal
from an initial decision. Any such petitions shall be served on all
other parties to the proceeding within 30 days after service of the
Board's order on appeal from the initial decision. Initial decisions
that have become final because they were not appealed may not be the
subject of petitions under this section.
(b) Timing and service. The petition shall be filed with the Board
and served on the parties within 30 days after service of the Board's
order on appeal from the initial decision.
* * * * *
24. The heading of Subpart I is revised to read:
Subpart I--Rules Applicable to Emergency Proceedings and Other
Immediately Effective Orders
25. Section 821.54 is amended by revising paragraph (a) to read as
follows:
Sec. 821.54 General.
(a) Applicability. This subpart shall apply to any order issued by
the Administrator under section 609 of the Act: as an emergency order;
as an order not designated as an emergency order, but later amended to
be an emergency order; and any order designated as immediately
effective or effective immediately.
* * * * *
26. Section 821.55 is amended by revising paragraphs (a), (b), and
(c) and adding a new paragraph (f) to read as follows:
Sec. 821.55 Appeal, complaint, answer to the complaint, and motions.
(a) Time within which to appeal. The certificate holder may appeal
within 10 days after the service of the Administrator's emergency or
other immediately effective order. The certificate holder shall serve a
copy of his appeal on the Administrator.
(b) Form and content of appeal. The appeal may be in letter form.
It shall identify the Administrator's order and the certificate
affected, shall recite the Administrator's action, and shall identify
the issues of fact or law on which the appeal is based, and the relief
sought. The appeal shall either attach a copy of the Administrator's
order or shall clearly indicate that an emergency or other immediately
effective order is being appealed.
(c) Complaint. Within 3 days after receipt of the appeal, the
Administrator shall file with the Board an original and 3 copies of his
emergency or other immediately effective order as his complaint, and
serve a copy on the respondent.
* * * * *
(f) Discovery. Discovery is authorized in emergency or other
immediately effective proceedings and, given the short time available,
parties are directed to cooperate to ensure timely completion prior to
the hearing. Discovery requests shall be served as soon as possible
after initiation of the proceeding. Motions to compel production shall
be expeditiously filed, and will be promptly decided. Time limits for
compliance with discovery requests shall accommodate and not conflict
with the schedule set forth in this subpart. The provisions at
Sec. 821.19 shall apply, modified as necessary to reflect applicable
deadlines.
27. Section 821.56 is amended by revising paragraph (a) to read as
follows:
Sec. 821.56 Hearing and initial decision.
(a) Notice of hearing. Immediately upon notification by the
Administrator to the Board, and in no case later than 5 days after
receiving notice from the Administrator that an emergency exists or
that safety in air commerce or air transportation requires the
immediate effectiveness of an order, the Board shall set, and notify
the parties of, the date and place for hearing. The hearing shall be
set for a date no later than 25 days after service of the complaint. To
the extent not inconsistent with this section, the provisions of
Sec. 821.37(a) also apply.
* * * * *
28. Section 821.57 is amended by revising paragraphs (b) and (c) to
read as follows:
Sec. 821.57 Procedure on appeal.
* * * * *
(b) Briefs and oral argument. Unless otherwise authorized by the
Board, all briefs in emergency cases shall be served via overnight
delivery or facsimile confirmed by first class mail. Within 5 days
after the filing of the notice of appeal, the appellant shall file a
brief with the Board and serve a copy on the other parties. Within 7
days after service of the appeal brief, a reply brief may be filed,
with copies served (as provided above) on other parties. The briefs
shall comply with the requirements of Sec. 821.48 (b) through (g).
Appeals may be dismissed by the Board on its own initiative or on
motion of a party, notably in cases where a party fails to perfect the
notice of appeal by filing a timely brief. When a request for oral
argument is granted, the Board will give notice of such argument.
(c) Issues on appeal. The provisions of Sec. 821.49 shall apply to
issues on appeal. However, the Board may upon its own initiative raise
any issue, the resolution of which it deems important to a proper
disposition of the proceeding. If necessary or appropriate, the parties
shall be afforded a reasonable opportunity to comment.
* * * * *
29. Section 821.63 is amended by revising paragraph (b) to read as
follows:
Sec. 821.63 Requirements to show cause and imposition of sanction.
* * * * *
(b) The Board may, to the extent consistent with the interests of
justice and the policy of the underlying statutes it administers,
consider a violation of this subpart sufficient grounds for a decision
adverse to a party who has knowingly committed or knowingly caused a
violation to occur. Alternatively, the Board may impose sanction,
including suspension of the privilege of practice before the Board, on
the party's attorney or representative, where an infraction has been
committed by that attorney or representative and penalizing the party
represented is not in the interest of justice.
30. Section 821.64 is revised 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 section 1006 of the Act (49 U.S.C. 46110) and
section 304(d) of the Independent Safety Board Act of 1974 (49 U.S.C.
1153) by filing a petition for review with the appropriate United
States court of appeals within 60 days of the date of entry (service
date) of the Board's order. Under the Federal Aviation Act, as amended,
any party may appeal the Board's decision. The Board itself does not
typically participate in the judicial review of its action. In matters
appealed by the FAA, respondents should anticipate the need to make
their own defense.
(b) Stay pending judicial review. No petition for stay pending
judicial review will be entertained if it is received by the Board
after the effective date of the Board's order. If a stay action is to
be timely, any petition must be filed sufficiently in advance of the
effective date of the Board's order to allow for the possibility of a
reply and to allow for Board review.
Issued in Washington, DC on this 8th day of November, 1994.
John K. Lauber,
Member.
Member VOGT Filed the Following Concurring Statement
I continue to believe, for the reasons expressed in my
concurrence in Administrator v. Heimerl & Forrest, NTSB Order EA-
4134 (April 12, 1994), that the Board's service rule at
Sec. 821.8(e) should be amended to eliminate reliance on the date of
the certificate of service when calculating the date of service.
[FR Doc. 94-28074 Filed 11-14-94; 8:45 am]
BILLING CODE 7533-01-P