[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: 94-28075]


[[Page Unknown]]

[Federal Register: November 15, 1994]


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NATIONAL TRANSPORTATION SAFETY BOARD

49 CFR Parts 821 and 826

 

Rules of Practice in Civil Penalty Proceedings

AGENCY: National Transportation Safety Board.

ACTION: Final rules.

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SUMMARY: The NTSB is adopting final rules to implement the FAA Civil 
Penalty Administrative Assessment Act of 1992, signed into law on 
August 26, 1992. This law transferred adjudication of appeals of civil 
penalties assessed by the Federal Aviation Administrator against 
pilots, flight engineers, mechanics, and repairmen from the FAA to the 
NTSB. The Board is adopting, with only minor changes, rules it has 
already adopted as an interim measure (58 FR 11379 (February 25, 
1993)).

EFFECTIVE DATE: The final rules are effective on December 15, 1994.

FOR FURTHER INFORMATION CONTACT: Daniel D. Campbell, General Counsel, 
(202) 382-6540.

SUPPLEMENTARY INFORMATION: Public Law No. 102-345 (here, the CP Act) 
has expanded the Board's jurisdiction to review actions of the 
Administrator. Section 901(a)(3) of the Federal Aviation Act of 1958 
(49 U.S.C. App. 1471(a)(3))1 has been amended to provide that any 
person acting in the capacity of a pilot, flight engineer, mechanic, or 
repairman against whom an order assessing a civil penalty is issued by 
the Administrator under this paragraph may appeal the order to the 
National Transportation Safety Board, and the Board shall, after notice 
and a hearing on the record in accordance with section 554 of title 5, 
United States Code, affirm, modify, or reverse the order of the 
Administrator. Thus, in addition to a docket of appeals involving 
suspension, revocation, and medical qualification matters, we now also 
hear appeals from the Administrator's orders imposing civil penalties 
against individuals in the listed categories.
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    \1\Newly recodified at 49 U.S.C. 46301(d)(5).
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    We stated in our notice our belief that current rules of practice 
in Parts 821 and 826 required few changes to accommodate this new 
authority, and the changes we proposed simply reflected its scope. 
Thus, we then proposed and now adopt the rules of practice in Parts 821 
and 826 for usage in all civil penalty proceedings. Although we did not 
offer specific rule changes relating to (1) the codification of new 
rules of deference and (2) the provisions of Pub.L. No. 102-345 that 
pertain to the modification of proposed sanctions, we invited comment 
or proposals about them. We suggested that the changes regarding 
deference seemed to require little departure from current practice. We 
noted that the new provision regarding the modification of sanction 
resulted in some tension with existing practice,2 but that it 
might be difficult to anticipate by rule the types of questions that 
could arise under these provisions. We also invited comment on 
extending application of our stale complaint rule, 49 CFR 821.33, to 
the civil penalty docket.
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    \2\See discussion, infra.
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    In response to our notice, comments were filed by the Aircraft 
Owners and Pilots Association, the Air Line Pilots Association, the 
Experimental Aircraft Association, the National Transportation Safety 
Board Bar Association, the Regional Airline Association, as well as the 
Federal Aviation Administration (FAA) and five individuals. Two replies 
were filed in opposition to portions of the FAA comment. For the 
reasons that follow, we adopt the proposed rule, with one editorial 
correction. We first address applicability of the stale complaint rule.

Stale Complaints

    FAA's comments were principally aimed at the Board's noticed 
intention to extend its stale complaint rule to the processing of civil 
penalties. The NTSB and before it the Civil Aeronautics Board have long 
required that aviation enforcement cases be initiated within 6 months 
of the alleged violation by notice to the airman of the nature of the 
charges contemplated.3 This provision is found at Sec. 821.33 of 
the NTSB rules and includes exceptions where good cause is shown for 
delay beyond 6 months,4 where notwithstanding delay there are 
overriding public interest considerations,5 and a further 
exception for the most serious cases where a complaint indicates that 
the airman does not possess the qualifications required of licensed 
pilots confirm.6 But exceptions aside, if an airman is not advised 
of the reasons for a proposed enforcement action within 6 months of the 
alleged violation, the FAA's complaint against the airman will be 
dismissed. One statement of the traditional and still commanding 
justification for the rule is found in Burdick et al., 34 C.A.B. 856, a 
1961 case that considered matters strikingly similar to the issues 
here:

    \3\The stale complaint rule for suspension and revocation cases 
dates back to 1942.
    \4\Thus, for example, an apparently stale proceeding will 
survive a motion to dismiss where the Administrator did not have 
contemporaneous knowledge of the alleged violation (see, e.g., 
Administrator v. Slotten, 2 NTSB 2503 (1976)), so long as the matter 
was given appropriate priority after finally coming to light (see 
Administrator v. Zanlunghi, 3 NTSB 3696 (1981)).
    \5\See Administrator v. Elston, NTSB Order No. EA-4151 (1994) 
for types of cases to which the public interest exception might 
apply. To date, however, the cases in which the public interest 
exception has been discussed are quite rare, as it appears in 
practice that an allegation of lack of qualification is typically 
available and relied upon where serious misconduct is involved.
    \6\See, e.g., Administrator v. Wingo, 4 NTSB 1304, 1305 (1984) 
(``In order to avoid dismissal under the stale complaint rule, the 
allegations in the complaint need only present an issue of lack of 
qualifications.'' (Emphasis in original.)). As examples, lack of 
qualification has been presumed for matters of deliberate 
falsification of record requirements (see, e.g., Administrator v. 
Walters, NTSB Order No. EA-3835 (1993)); and for proceedings based 
on drug convictions (see, e.g., Administrator v. Kragness, NTSB 
Order No. EA-3682 (1992)).
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    We do not believe it is in the public interest to permit an 
airman who has violated the regulations to continue to enjoy all the 
rights and privileges of his certificate for an extended period of 
time without remedial action. On the other hand, we consider it 
unfair to an airman to have the threat of enforcement action held 
over his head for a protracted period, or to have to defend himself 
when, because of the passage of time, it is difficult to assemble 
witnesses or where recollections of the incident have become hazy. 
(34 C.A.B. 860.)7
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    \7\See also Administrator v. Dill et al., NTSB Order No. EA-4099 
(1994) (due diligence is necessary to protect individual airman and 
to enhance aviation safety).
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    All parties except the Administrator support the extension of the 
stale complaint rule. The FAA is opposed from an institutional 
perspective and on what it believes are practical grounds. 
Institutionally, it argues that the establishment of a standard time 
limit is a legislative function, pointing to the standard 5-year limit 
for civil penalty actions established by statute in 28 USC 2462, and 
also citing a separate provision of the CP Act which imposes a 2-year 
statute of limitations for those civil penalty proceedings entrusted to 
FAA for adjudication. FAA believes that the establishment of a 
limitation period shorter than 5 years is the responsibility of the 
regulating and prosecuting agency. In offering this argument, FAA 
appears to make, without any elaboration, a distinction between the 
quasi-legislative functions of a regulatory agency and the quasi-
judicial functions of the Safety Board acting as an appeals board in 
aviation enforcement. On the practical level, FAA argues that its own 
2-year rule was a balancing of its needs for sufficient time to 
investigate, review and initiate a case, the interests of respondents 
in timely notice, and the public interest in regulatory 
compliance.8 FAA concedes that the NTSB, as adjudicator, has 
inherent power to dismiss individual proceedings where delay has been 
shown to prejudice an airman's defense; its objection is lodged to the 
legislative nature of Sec. 821.33 and the presumption of prejudice it 
incorporates.
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    \8\While the 2-year limit is now a matter of statute law, FAA 
refers to its balancing of these several factors in apparent 
reference to a self-imposed, 2-year limitation that had been adopted 
by the agency during the temporary civil penalty demonstration 
program.
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    Among the private sector commentors there is unanimous support for 
the continuation of the 6-month stale complaint rule. Most commentors 
argue that the 6-month rule has worked well, in part because it 
contains several exceptions permitting the processing of those cases 
that might pose serious threat to public safety or where FAA could not 
have acted faster. AOPA notes that failure to adopt a 6-month rule will 
result in an incongruous problem in which the selection of sanction 
would dictate the allowable time for notice of action--the fear 
apparently being that when FAA failed to act on a matter normally 
reserved for suspension or revocation of a certificate, it would 
instead substitute a money fine so that the case would not be time-
barred before the NTSB. Another commentor notes a related incongruity: 
That since the Civil Penalty Assessment Act gave the NTSB the power to 
conclude that a civil penalty assessment should instead be levied as a 
certificate suspension or revocation, there might arise a case in which 
an action brought as a civil penalty would result in a certificate 
action, although suspension or revocation would have been time-barred 
if initiated as such.
    We remain persuaded that the Safety Board has the authority to 
establish the Sec. 821.33 stale complaint rule and that its application 
to our civil penalty docket is appropriate. As to FAA's arguments 
regarding the respective institutional relationships of our agencies 
and the consequent inappropriateness of ``legislation'' (rulemaking) to 
govern timeliness, we think that these arguments which, if accepted as 
correct, would apply with near equal force to the remainder of the 
Board's enforcement docket, are not supported by a fair appraisal of 
the institutional histories of our agencies. Indeed, very much the same 
arguments were made and rejected by the Civil Aeronautics Board shortly 
after the division between the enforcement and adjudication functions 
that resulted from the enactment of the Federal Aviation Act of 
1958.9 Thus, in the Burdick case, supra, FAA argued that:

    \9\Enforcement and adjudication had been unified in a single 
agency at times prior to 1958.
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    * * * under the Federal Aviation Act of 1958, the Board has no 
power to adopt a stale-complaint provision and to require the 
Administrator to show good cause for delay in initiating enforcement 
action. [The Administrator] states that the 1958 Act gave him the 
function of deciding whether, and when, to institute enforcement 
action and that the authority to commence such actions is no longer 
delegated to him by the Board. Further he points out that the 1958 
Act places no time limitation on the institution of a safety action 
by the Administrator, that the Board has no jurisdiction prior to 
the issuance of the Administrator's order * * *. Burdick, supra, 
857-8.

    To which the answer was given:

    Even if the 1958 Act were viewed as creating a changed 
relationship, it would not follow that the stale-complaint rule is 
invalid. As indicated earlier, under section 609 it is the Board 
which makes the ultimate determination as to the sanction in each 
case which comes before it. Thus if in the Board's judgement the 
sanction preliminarily imposed by the Administrator is not required 
by safety and the public interest, the Board is free to impose such 
sanction, if any, as it believes to be justified by its own 
appraisal of the safety and other public interest considerations 
involved. In this light, the stale complaint provision may be 
regarded as a general announcement by the Board of its view of the 
overall public interest to be applied in those cases in which it is 
called upon to exercise its statutory powers. To this extent the 
announcement as set forth in the Rules of Practice under the 1938 
Act has represented a standard for decision by the Board and there 
is no indication in the 1958 Act or its legislative history that 
Congress intended to change that standard. Id., 858-9.

    NTSB, as the successor agency to C.A.B. for enforcement cases, 
finds itself in precisely the same institutional relationship with FAA 
as did the 1961 Civil Aeronautics Board that decided Burdick, and we 
think that their reasoning is persuasive. We do not believe the 
enactment of the Civil Penalty Act effectuated any significant change 
in the relationship between FAA and NTSB, and such changes that were 
accomplished were done so explicitly. FAA had argued for a right of 
appeal of NTSB cases, and one was enacted. Likewise, an explicit 
statement of deference to FAA interpretations was adopted. We think 
that such careful attention to detail by Congress undermines any 
suggestion that sub silentio Congress also intended a limitation of the 
Board's authority as exercised in Rule 821.33.
    We note that on August 5, 1994, FAA published a notice of proposed 
rulemaking detailing its own proposed rules for the processing of those 
civil penalty proceedings which were retained for in-house adjudication 
under the CP Act. (59 FR 40196.) In this notice, FAA makes the argument 
that, because Congress specified a 2-year limitation for FAA 
adjudications but refrained from any similar new legislative directive 
for NTSB-adjudicated penalties, NTSB proceedings are governed by the 5-
year limitation of 28 USC 2462. Given the context in which the CP Act 
arose, we think the suggestion that Congress intended to reinvigorate a 
5-year limitation at the NTSB is quite implausible. For our part, we 
view the statute of limitation provision in the Civil Penalty 
Assessment Act as best understood as part of the basic compromise that 
is at the heart of the 1992 legislation. As AOPA points out, Congress 
was well aware of NTSB's stale complaint rule, in part because of the 
complaints over the adoption of a longer, 2-year limitation by FAA for 
its in-house civil penalty adjudication under the temporary 
demonstration program. Due to widespread opposition to the FAA's 
administration of this program, the 1992 enactment split the 
adjudication of civil penalties between the NTSB and FAA. FAA was given 
legislative authority to retain a 2-year limitation for the cases it 
would handle--an implicit limitation against the agency's right to move 
outward toward the 5-year limit of 28 USC 2462. And the transfer of 
cases involving individual airmen and others to the NTSB is arguably an 
equally clear, if still implicit, statement that these airmen were to 
receive the perceived advantages of NTSB adjudication, including the 
stale complaint rule.
    As to the practical implications of the stale complaint rule, FAA 
has offered no evidence or demonstration of harm having resulted from 
the long-standing application of Rule 821.33 to certificate cases. 
Given the availability of exceptions for good cause etc., perhaps this 
is not surprising. We would also note that the nature of the caseload 
reserved for civil penalties, if the FAA Sanction Guidelines Table is 
thought to be instructive, will be, if anything, less complicated and 
less critical than those certificate cases already subject to 
Sec. 821.33 and for which no harm has been shown. Consequently, in the 
absence of any factual showing of impracticability, we believe that the 
stale complaint rule will function well for the civil penalty docket 
and we will continue its use. Doing so avoids the need to address the 
potential, pointed to by AOPA, for the selection of sanction type to 
become a device for the avoidance of the stale complaint rule in 
certificate action cases.

Deference and Sanction Modification

    The CP Act provides that the Board, while not bound by any findings 
of fact made by the Administrator, is bound by all ``validly adopted 
interpretations of laws and regulations administered by the Federal 
Aviation Administration (including written agency policy guidance 
available to the public relating to sanctions to be imposed under this 
subsection) unless the Board finds that any such interpretation is 
arbitrary, capricious, or otherwise not in accordance with law.'' Pub. 
L. No. 102-345, Sec. 2(a), amending 49 U.S.C. 1471(a)(3), newly 
recodified at 49 U.S.C. 46301(d)(5). The new law also provides that the 
Board may, consistent with the foregoing, modify the type of sanctions 
to be imposed by the Administrator. Thus, the Board may, in an 
appropriate case, change a civil penalty to a suspension or change a 
suspension or revocation to a civil penalty. For the purposes of this 
rulemaking, these new provisions have been referred to as the deference 
and sanction modification provisions. We noted in the NPR that comment 
on these provisions was desirable, even though the possibility of the 
adoption of specific rules was not great. For a number of reasons, we 
continue to believe that rules are not feasible at this point. However, 
the experience with these provisions through adjudication has already 
addressed some of the issues raised in this docket.10
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    \1\0As we are in accord with the view expressed in the comments 
that, if law in this area is developed through adjudication rather 
than rulemaking, the interests of the aviation community as a whole 
might not always be fully represented, we have broadened our policy 
regarding amicus participation (see, e.g., Administrator v. Oklahoma 
Executive Jet Charter, Inc. & Curtis, NTSB Order EA-3928 (1993)), 
and have proposed a general change in our rules of practice to 
authorize amicus briefs in appropriate situations.
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    Certain commentors argue that, to be a validly adopted 
interpretation to which we must defer, an FAA position must have been 
adopted through notice and comment rulemaking. Such a view requires the 
belief that Congress intended a dramatic change in the administrative 
process as normally understood, and we decline to infer any such 
intention without the support of clear evidence. Traditional 
administrative practice has permitted the development of agency policy 
through a range of devices that fall short of formal rulemaking, and 
the Board is given no specific authority to limit the Administrator's 
discretion in this regard. On the other hand, the Board may, in the 
exercise of its own statutory discretion, sculpt its decisions to 
reflect the basic due process requirements of the public interest 
standard under which our decisions are rendered.11
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    \1\1See, e.g., Administrator v. Miller, NTSB Order EA-3581 
(1992), holding that a ``validly adopted'' interpretation may be 
announced by adjudication as well as rulemaking, but that sanction 
may be denied due to insufficient notice to airmen. ALPA suggests 
that we incorporate by rule Miller's declination of sanction. We 
think this would be too mechanical, but we believe the approach 
taken in Miller was correct and reaffirm it in principle.
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    Perhaps the biggest concern that commentors expressed with less 
formal means of interpretive development of enforcement policy is that, 
under an expansive construction of the new language (``validly adopted 
interpretations of laws and regulations administered by the Federal 
Aviation Administration''), the Board would lose the very impartiality, 
objectivity and independence the CP Act was enacted to provide to the 
airmen covered by it. We think these fears overstate the nature of the 
change, if any, imposed on the Board by the deference provisions. As we 
noted to Congress during the considerations of these amendments, we do 
not believe the amended language brings about any significant change in 
the relationship between FAA and NTSB or to the kind and quality of 
deference to the Administrator's interpretations that has been 
traditionally accorded. The Board has long paid close heed to the FAA's 
valid interpretations of its regulatory language,12 just as we 
continue to reserve the right to discount those interpretations which 
are arbitrary, unsupported, or which are the novel inventions of trial 
counsel.13 We believe that this is, generally speaking, the role 
intended for us by Congress, and our decisions continue to reflect this 
approach.
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    \1\2See Administrator v. Miller, supra.
    \1\3In Administrator v. Krachun, NTSB Order No. EA-4002 (1993), 
the Safety Board concluded that it was not bound to defer to a 
hastily developed interpretation sustained only by argument of 
counsel, particularly where the interpretation advanced was 
unsupported by citation of practice, precedent, or documentation, 
and where it entailed consequences for the aviation community 
generally. See also Administrator v. Smith and Wright, NTSB Order 
No. EA-4169 (1994); Administrator v. Nyren, NTSB Order No. EA-3930 
(1993). These decisions, which decline to give deference to thinly 
developed regulatory interpretations announced at trial, are 
consistent with Congressional understanding of the deference 
standard being imposed. See H.R. Rep. No. 671, 102d Cong. 2d Sess. 
10 (1992) (NTSB is not simply to defer to litigation positions of 
the FAA prosecutor).
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    AOPA suggests that only interpretations made at the highest levels 
within the FAA should be entitled to deference. While we cannot agree 
with so broad a statement, we think the quality of the process through 
which an interpretation is reached and the manner of its announcement 
are considerations that will affect both the public interest and 
aviation safety dimensions of our review. We did, consequently, invite 
amicus comment in one case as to whether an interpretation that is 
based only on expert testimony offered by the Administrator during the 
hearing on his order of suspension is ``validly adopted'' in the sense 
that it compels deference to the Administrator's view.14 We have 
also noted that there are interpretive conclusions that approach the 
sometimes illusive borderline between ``fact'' and ``law,'' and that we 
are not bound by the former.15 Still, there are many methods for 
the development of administrative policy that have not yet surfaced in 
litigation, and it would be premature to speculate on the Board's 
reaction to each, other than to reiterate that the Board is bound by 
those interpretations reached through valid process, unless arbitrary, 
capricious, or unsupported by law.
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    \1\4Administrator v. Nyren, NTSB Order EA-3930 (1993). After we 
sought additional briefing and suggested the possibility of oral 
argument on the deference issue, the Administrator withdrew the 
underlying order of suspension and hence no further argument was 
heard.
    \1\5See, e.g., Administrator v. Kapton, NTSB Order No. EA-4046 
(1993), at note 9, p.7, stating that the Board is not bound by 
conclusions of the Administrator that given behavior is careless 
within the meaning of the provision prohibiting careless operation.
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    As to deference specifically regarding choice of sanction, we 
stated in the notice that the CP Act suggested some tension between the 
Board's traditionally conservative approach and the new invitation to 
modify sanction as appropriate, within such FAA guidelines as are shown 
applicable. We noted that Administrator v. Muzquiz, 2 NTSB 1474 (1975), 
which has long required clear and compelling evidence to amend the 
Administrator's proposed sanction if all violations are affirmed, might 
well be outdated. Such comment as was received on this issue offered no 
usable suggestion for the adoption of a rule at this point, and we will 
attempt none. Experience to date through adjudication has confirmed 
that the aforementioned Muzquiz doctrine is of diminished importance, 
and that NTSB administrative law judges (and the Board itself) may in 
proper circumstances modify sanctions,16 and that in doing so 
reliance on precedent will be typical,17 but not always possible 
or required.18 The Board will continue its development of these 
issues through adjudication, and consider the publication of formal 
guidance at such time as firm and suitable principles emerge.
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    \1\6Administrator v. Glassburn, NTSB Order No. EA-4211 (1994) 
(where FAA Sanction Table permits a range of sanctions, ALJ may 
rationally choose among them based on observation of the case).
    \1\7See, e.g., Administrator v. Franck, NTSB Order No. EA-4166 
(1994); Administrator v. Tweto, NTSB Order No. EA-4164 (1994).
    \1\8Administrator v. Oklahoma Executive Jet Charter, Inc. & 
Curtis, NTSB Order No. EA-3928 (1993). This is the first case in 
which a certificate action (revocation) was modified to the 
imposition of a civil penalty.
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Supplementary Matters

    We have made only three changes in the interim rules. First, we 
have removed the improper reference to section 602 of the Federal 
Aviation Act in interim Sec. 826.3. Second, we have revised Sec. 821.2 
to enlarge coverage, consistent with the FAA's proposal (see 59 FR 
40196), by including a reference to persons acting in the capacity of 
flight engineers, pilots, mechanics, or repairmen.19 Third, the 
authority section updates statutory citations to reflect the recent 
recodification in Pub. L. 103-272, as already modified in Aviation 
Rules of Practice--General Revision.
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    \1\9We note that the FAA's CP rulemaking proposals contain other 
matters that could affect our jurisdiction. Should we need to 
address them we will do so via adjudication or rulemaking, as most 
appropriate.
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    Two errors that the parties cited were errors of Federal Register 
publication only. The word ``are'' was left out of the second sentence 
of 826.3(a). It should have read ``These are adjudications * * *.'' The 
Federal Register also mistakenly repeated two lines in the third 
sentence of that same rule. The phrase ``suspend, or revoke * * * 
proceedings to modify,'' improperly appears twice.20
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    \2\0One commentor urges us to extend the scope of our new review 
authority to dispatchers, noticing that they also are certificated 
airmen. We decline to do so. The statute identifies the categories 
of airmen that are covered and does not include dispatchers. See 
H.R. Rep. 102-671, supra, at 20, where nine Congressmen indicated 
their preference for extending coverage not only to dispatchers but 
to air carriers, parachute riggers, and air traffic control tower 
operators. Cf. FAA rulemaking proposal to include flight 
instructors. 59 FR 40193.
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    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

49 CFR Part 821

    Administrative practice and procedure, Airmen, Aviation safety.

49 CFR Part 826

    Claims, Equal access to justice, Lawyers.

    Accordingly, the interim rule published on February 25, 1993 is 
adopted as final, with the following changes:

PART 821--RULES OF PRACTICE IN AIR SAFETY PROCEEDINGS

    1. The authority citation for Part 821 continues 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 821.2 is revised to read as follows:


Sec. 821.2  Applicability and description of part.

    The provisions of this part govern all air safety proceedings, 
including proceedings involving airman medical certification, before a 
law judge on petition for review of the denial of any airman 
certificate or on appeal from any order of the Administrator amending, 
modifying, suspending or revoking any certificate. The provisions of 
this part also govern all proceedings on appeal from an order of the 
Administrator imposing a civil penalty on a flight engineer, mechanic, 
pilot, or repairman, or a person acting in that capacity, where the 
underlying violation occurred on or after August 26, 1992, and all 
proceedings on appeal to the Board from any order or decision of a law 
judge.

PART 826--[AMENDED]

    3. The authority citation for Part 826 continues to read as 
follows:

    Authority: Section 203(a)(1) Pub.L. 99-80, 99 Stat. 186 (5 
U.S.C. 504).

    4. Section 826.3(a) is revised to read as follows:


Sec. 826.3  Proceedings covered.

    (a) The Act applies to certain adversary adjudications conducted by 
the Board. These are adjudications under 5 U.S.C. 554 in which the 
position of the FAA is presented by an attorney or other representative 
who enters an appearance and participates in the proceedings. 
Proceedings to grant or renew certificates or documents, hereafter 
referred to as ``licenses,'' are excluded, but proceedings to modify, 
suspend, or revoke licenses or to impose a civil penalty on a flight 
engineer, mechanic, pilot, or repairman (or person acting in that 
capacity) are covered if they are otherwise ``adversary 
adjudications.'' For the Board, the type of proceeding covered includes 
(but may not be limited to) aviation enforcement cases appealed to the 
Board under sections 501, 609, 611 and 901 of the Federal Aviation Act 
(49 U.S.C. 44101 et seq., 44720-44711, 44715, 46301).
* * * * *
    Issued in Washington, DC on this 8th day of November, 1994.
James Hall,
Acting Chairman.
[FR Doc. 94-28075 Filed 11-14-94; 8:45 am]
BILLING CODE 7533-01-P