[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