[Federal Register Volume 65, Number 133 (Tuesday, July 11, 2000)]
[Rules and Regulations]
[Pages 42637-42641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-17417]


=======================================================================
-----------------------------------------------------------------------

NATIONAL TRANSPORTATION SAFETY BOARD

49 CFR Part 821


Rules of Practice Governing Board Review of Federal Aviation 
Administration Emergency Determinations in Air Safety Enforcement 
Proceedings

AGENCY: National Transportation Safety Board.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: The Administrator of the Federal Aviation Administration (FAA) 
has the statutory authority to issue orders amending, modifying, 
suspending, or revoking certain FAA-issued certificates, in the 
interest of safety in air commerce or air transportation. Such actions 
are appealable to the Board, and the filing of an appeal by the 
affected certificate holder stays the effectiveness of the 
Administrator's order, unless the Administrator determines that an 
emergency, requiring the order to be effective immediately, exists. 
Section 716 of the Aviation Investment and Reform Act for the 21st 
Century confers on the Board the authority to review such emergency 
determinations, which were not previously subject to administrative 
review, and these interim rules provide procedures for that review. 
Comments are invited and will be considered in the formulation of final 
rules.

DATES: These interim rules are effective on July 11, 2000. Comments are 
invited by July 26, 2000. Reply comments may be filed by August 10, 
2000.

ADDRESSES: An original and two copies of any comments must be submitted 
to: Office of General Counsel, National Transportation Safety Board, 
Room 6401, 490 L'Enfant Plaza East, S.W., Washington, D.C. 20594, 
Attention: Emergency Procedure Rules.

FOR FURTHER INFORMATION CONTACT: Ronald S. Battocchi, General Counsel, 
(202) 314-6080.

SUPPLEMENTARY INFORMATION:

Background

    The National Transportation Safety Board (NTSB) currently has 
rules, at 49 CFR part 821, that govern practice and procedure in 
certain air safety proceedings, including proceedings in which the FAA 
Administrator seeks to amend, modify, suspend or revoke various FAA-
issued certificates or privileges. Under 49 U.S.C. 44709(d), such 
certificate actions are reviewable on appeal to the Board by the 
affected certificate holder. 49 U.S.C. 44709(e) provides that the 
filing of such an appeal stays the effectiveness of the Administrator's 
order, pending disposition of the appeal by the Board, unless the 
Administrator determines that an emergency exists and that safety in 
air commerce or air transportation requires the order to be effective 
immediately. Prior to the enactment of the Aviation Investment and 
Reform Act for the 21st Century (Pub. L. 106-181, signed into law April 
5, 2000), the Administrator's emergency determinations were not subject 
to administrative review. Section 716 of Public Law 106-181 expands the 
Board's jurisdiction, by amending 49 U.S.C. 44709(e) to provide that a 
person affected by the immediate effectiveness of an order, based on 
the Administrator's finding of the existence of an emergency, may, not 
later than 48 hours after receiving the order, petition the Board to 
review that emergency determination, under procedures promulgated by 
the Board. 49 U.S.C. 44709(e), as amended, further provides that the 
Board shall dispose of the certificate holder's request for review of 
the Administrator's emergency determination no later than five days 
after the request is filed, and that, if the Board finds that an 
emergency does not exist, the immediate applicability of the 
Administrator's order shall be stayed. In light of the immediate 
effectiveness of Public Law 106-181, the Board is issuing interim rules 
to establish procedures for its review of the Administrator's emergency 
determinations, without notice and comment.
    Public Law 106-181 also amends the time period for the Board to 
make final dispositions of appeals in all emergency cases. Under 49 
U.S.C. 44709(e) prior to amendment, the Board had 60 days from the time 
the Administrator advised it of the existence of an emergency (by 
filing a complaint in response to the certificate holder's appeal) to 
make its final disposition of the appeal, whereas 49 U.S.C. 44709(e), 
as amended, requires a final disposition not later than 60 days after 
the date on which the appeal is filed. The interim rules include 
amendments to part 821 that were necessitated by this change.

Interim Rules

    The Board believes that its current rules require certain immediate 
changes to accommodate these amendments to 49 U.S.C. 44709(e). These 
interim rules should permit the processing of any petitions for review 
of the Administrator's exercise of emergency authority that are 
instituted by affected certificate holders pursuant to the statutory 
amendments, while the Board has final rules under consideration.
    Under the interim rules, the authority to review emergency 
determinations of the Administrator has been delegated to the Board's 
administrative law judges. The interim rules permit the Administrator 
to file a written reply to the certificate holder's petition for review 
of the emergency determination, and require the law judge to issue a

[[Page 42638]]

written order granting or denying the petition, based upon such written 
submissions by the parties. In view of the short five-day period which 
Public Law 106-181 mandates for the disposition of this issue, the 
interim rules provide that the law judge's decision on the issue is 
final, and not appealable to the Board. The placement of such review 
authority in the law judges is a matter subject to revisitation in the 
future, and the Board is particularly interested in comments on this. 
The Board is also interested in comments on the practicality and/or 
advisability of putting in place an appeal process that would permit a 
review of the law judge's ruling on the emergency issue by the Board, 
which would, of necessity, occur during the running of the 30-day 
period in which the case must proceed to hearing.
    Aside from minor changes to 49 CFR 821.10, the general provision 
relating to computations of time in air safety proceedings before the 
Board, all of the revisions to part 821 necessitated by the amendments 
to 49 U.S.C. 44709(e) created by Public Law 106-181 appear in subpart 
I, which sets forth special rules applicable to appeals of emergency 
and other immediately effective orders issued by the Administrator.
    The addition and logical placement of rules specifically relating 
to the disposition of petitions for review of the Administrator's 
emergency determinations have necessitated a restructuring of subpart 
I. Section 821.54, which contained general provisions relating to 
emergency cases, has been redesignated as Sec. 821.52, with minor 
changes. Paragraphs (a) and (b) of Sec. 821.55 have been removed from 
that section and recodified, with revisions, at Sec. 821.53. Paragraph 
(b) of Sec. 821.53 amends former paragraph (b) of Sec. 821.55, by 
requiring appeals of emergency or other immediately effective orders to 
include a copy of the appealed order. Previously, it was sufficient for 
the certificate holder to indicate in the appeal that an emergency or 
other immediately effective order was the subject of the appeal. Former 
paragraphs (c) through (f) of Sec. 821.55 have been redesignated as 
paragraphs (a) through (d) of that section.
    A new Sec. 821.54 sets forth the rules and procedures governing the 
Board's review of the Administrator's emergency determinations. 
Paragraph (a) of that section provides that a certificate holder has 2 
days from the date on which he or she receives the Administrator's 
emergency or other immediately effective order to file with the Board a 
petition for review of the emergency determination. The Board believes 
the interim rule's 2 day time limit is a reasonable application of the 
new legislation's requirement that review of the Administrator's 
emergency determination ``shall be requested not later than 48 hours 
after the order is received'' by the affected certificate holder, and 
that the rule's use of a 2 day time frame, rather than one of 48 hours, 
avoids the possibility of having cases turn on inquiries as to the 
precise hour and minute the order was received and/or the petition was 
filed. Paragraph (a) further provides that, as the time limit for 
filing a petition for review of the emergency determination has been 
created by statute, the Board has no authority to extend it (whereas 
time limits created by the Board's rules may, for good cause shown, be 
extended pursuant to Sec. 821.11). Similar language appears in the 
Board's rule relating to the filing of an application for fees and 
expenses under the Equal Access to Justice Act (see 49 CFR 826.24(a)). 
Finally, paragraph (a) provides that, in those cases where a 
certificate holder files a petition for review of an emergency 
determination, but has not previously submitted an appeal from the 
emergency or other immediately effective order, the petition will also 
be regarded as a simultaneously-filed appeal from the order.
    In the remainder of Sec. 821.54, paragraph (b) provides rules as to 
the form, content, and service of the certificate holder's petition, 
and requires that the petition include a copy of the Administrator's 
order. Paragraph (c) provides for the submission of a reply to the 
petition by the Administrator. Rules governing the law judge's 
disposition of the petition are set forth in paragraphs (d) and (e), 
and the effects of the law judge's ruling are enumerated in paragraph 
(f). Under paragraph (e), the petition is to be disposed of by written 
order, and the standard to be applied is whether, based on the acts and 
omissions of the certificate holder as alleged in the complaint, the 
Administrator abused his or her discretion in determining that an 
emergency exists, requiring the order to be effective immediately. 
Since issues of fact are properly resolved at an evidentiary hearing, 
challenges to the truthfulness of the factual allegations appearing in 
the Administrator's order are not appropriate for this preliminary 
inquiry; thus, paragraph (e) provides that, for purposes of deciding 
this emergency issue, the law judge is to assume the truth of the 
factual allegations stated in the order. The abuse of discretion 
standard set forth in paragraph (e) is adopted from the United States 
Court of Appeals for the Ninth Circuit, which used that criteria when 
presented with a challenge to the Administrator's exercise of emergency 
authority in Nevada Airlines v. Bond, 622 F.2d 1017 (1980). In 
paragraph (f), it is provided that, if the petition is granted, the 
effectiveness of the Administrator's order will be stayed until the 
Board makes a final disposition of the certificate holder's appeal. 
Since, in that instance, the certificate holder will not be deprived of 
the use of the certificate(s) affected by the order while the appeal is 
pending, the certificate holder will not be permitted to waive the 
applicability of the expedited appeals process of subpart I, unless the 
Administrator consents to such a waiver.
    Paragraph (a) of Sec. 821.55 (formerly paragraph (c) of that 
section), which provides rules for the filing and service of the 
Administrator's complaint, has been revised to include rules as to when 
the complaint is to be filed in those cases where there has been a 
challenge to the Administrator's emergency determination. In addition, 
paragraph (a) now requires that the complaint be filed with the Board 
by overnight delivery or facsimile, with service on the respondent by 
the same means. Minor changes have been made to paragraph (b) (formerly 
paragraph (d)) of Sec. 821.55, and no substantive changes were made to 
paragraphs (c) and (d) (formerly paragraphs (e) and (f)) of that 
section.
    Paragraph (a) of Sec. 821.56, which sets forth rules and procedures 
regarding the issuance of notices of hearing in emergency cases, has 
been amended to take into account the new legislation's shortening of 
the time frame for the Board to make a final disposition of an appeal 
in an emergency case to 60 days after the date on which the certificate 
holder's appeal is filed (as opposed to 60 days from the date on which 
the Board is advised by the Administrator of the existence of an 
emergency, which was accomplished when the Administrator filed a 
complaint in response to the appeal). Paragraph (a) has also been 
amended to provide rules for the issuance of notices of hearing in 
those cases where the certificate holder has challenged the 
Administrator's determination as to the existence of an emergency, upon 
the disposition of that preliminary issue. There are no substantive 
changes to the remaining provisions of Sec. 821.56. Section 821.57 has 
not been amended.

Related Matters

    Since our part 821 rules were last amended, the statutes referred 
to in that

[[Page 42639]]

part--i.e., the Independent Safety Board Act of 1974; the Federal 
Aviation Act of 1958, as amended; and the FAA Civil Penalties 
Assessment Act of 1992--have been recodified, without substantive 
change, at 49 U.S.C. Chapters 11 (Sections 1101 et seq.), 447 (Sections 
44701 et seq.), and 463 (Sections 46301 et seq.), respectively. Thus, 
the Board will, solely for ``housekeeping'' purposes, amend part 821, 
where necessary, to reflect the current statutory designations. In 
addition, Section 821.38(b), as currently written, contains a reference 
to ``Sec. 556(d) of the Administrative Procedure Act,'' while 
Sec. 821.41 refers to another section of Administrative Procedure Act 
by its United States Code citation. For purposes of consistency, and to 
follow the preferred convention of using United States Code citations 
to reference statutory authority in agency rules, the statutory 
reference in Sec. 821.38(b) will be amended to reflect the appropriate 
United States Code citation.
    The rules, as currently written, also contain references to parties 
involved in these proceedings, and actions taken by them, with the 
designations ``he,'' ``him,'' and ``his.'' The Board believes that such 
terms should be changed to the more proper ``he or she,'' ``him or 
her,'' and ``his or hers,'' and these changes will be made in the 
housekeeping amendments, as well.
    Because such housekeeping amendments do not substantively change 
the Board's part 821 rules, comments on these matters are not 
solicited.

List of Subjects in 49 CFR Part 821

    Administrative practice and procedure, Airmen, Aviation safety.

    For the reasons set forth in the preamble, part 821 of title 49 of 
the Code of Federal Regulations is amended as follows:

PART 821--RULES OF PRACTICE IN AIR SAFETY PROCEEDINGS

    1. The authority citation for part 821 is revised to read as 
follows:

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

    2. In part 821, revise all references to ``he,'' ``him,'' and 
``his,'' to read ``he or she,'' ``him or her,'' and ``his or her,'' 
respectively.

    3. In part 821, revise all references to ``section 602(b) of the 
Act'' to read ``49 U.S.C. 44703(c),'' and revise all references to 
``section 609 of the Act'' to read ``49 U.S.C. 44709.''


Sec. 821.1  [Amended]

    4. In Sec. 821.1, remove the paragraph defining the term ``Act;'' 
amend the paragraph defining the term ``Certificate'' by removing the 
words ``Title VI of the Act'' and inserting in their place the words 
``49 U.S.C. Chapter 447;'' and amend the last sentence of Sec. 821.1 by 
removing the words ``the Act'' and inserting in their place the words 
``49 U.S.C. Chapters 11, 447, and 463.''


Sec. 821.3  [Amended]

    5. In Sec. 821.3, remove the words ``a new.''


Sec. 821.8  [Amended]

    6. Amend paragraph (c) of Sec. 821.8 by removing the words 
``section 1005(b) of the Act'' and inserting in their place the words 
``49 U.S.C. 46103(a).''

    7. Revise Sec. 821.10 to read as follows:


Sec. 821.10  Computation of time.

    In computing any period of time prescribed or allowed by this part, 
by notice or order of the Board or a law judge, or by any applicable 
statute, the date of the act, event, or default after which the 
designated period of time begins to run is not to be included in the 
computation. The last day of the period so computed is to be included 
unless it is a Saturday, Sunday, or legal holiday for the Board, in 
which event the period runs until the end of the next day which is 
neither a Saturday, Sunday, nor legal holiday. In all cases, Saturdays, 
Sundays, and legal holidays for the Board shall be included in the 
computation of time, except they shall not be included in computations 
of time respecting petitions for review of determinations as to the 
existence of emergencies under Sec. 821.54 in subpart I of this part.


Sec. 821.19  [Amended]

    8. Amend paragraph (a) of Sec. 821.19 by removing the words 
``section 1004 of the Act'' and inserting in their place the words ``49 
U.S.C. 46104.''


Sec. 821.38  [Amended]

    9. Amend paragraph (b) of Sec. 821.38 by removing the words 
``Sec. 556(d) of the Administrative Procedure Act'' and inserting in 
their place the words ``5 U.S.C. 556(d) (Administrative Procedure).''

    10. Revise subpart I to read as follows:

Subpart I--Rules Applicable to Emergency Proceedings and Other 
Immediately Effective Orders

Sec.
821.52   General.
821.53   Appeal.
821.54   Review of Administrator's determination of emergency.
821.55   Complaint, answer to complaint, motions, and discovery.
821.56   Hearing and initial decision.
821.57   Procedure on appeal.


Sec. 821.52  General.

    (a) Applicability. This subpart shall apply to any order issued by 
the Administrator under 49 U.S.C. 44709: 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.
    (b) Effective date of emergency. The procedure set forth herein 
shall apply as of the date when written advice of the emergency 
character of the Administrator's order is first received and docketed 
by the Office of Administrative Law Judges or the Board.
    (c) Computation of time. Time shall be computed in accordance with 
the provisions of Sec. 821.10.


Sec. 821.53  Appeal.

    (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 file an 
original and 3 copies of the appeal with the Office of Administrative 
Law Judges, and shall serve a copy of the 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 indicate that an 
emergency or other immediately effective order is being appealed, and 
shall identify the issues of fact or law on which the appeal is based, 
and the relief sought. A copy of the order shall be attached to the 
appeal.


Sec. 821.54  Review of Administrator's determination of emergency.

    (a) Time within which to file petition. The certificate holder may, 
within 2 days after receipt of the Administrator's emergency or other 
immediately effective order, petition the Board for review of the 
Administrator's determination that an emergency, requiring the issuance 
of an immediately effective order, exists. This 2 day deadline is 
statutory and the Board has no authority to extend it. If the 
certificate holder has not previously filed an appeal from the 
emergency or other immediately effective order, the petition shall also 
be considered a

[[Page 42640]]

simultaneously filed appeal from the order under Sec. 821.53.
    (b) Form, content, and service of petition. The petition may be in 
letter form. It shall identify the order from which review of the 
Administrator's exercise of emergency authority is sought, and a copy 
of the order shall be attached to the petition. The petition shall 
enumerate the specific grounds on which the certificate holder 
challenges the Administrator's determination that an emergency exists. 
In the event that the petition fails to set forth the specific grounds 
for the certificate holder's challenge to the Administrator's emergency 
determination, the petition shall be dismissed. The petition shall be 
served on both the Board and the Administrator via overnight delivery 
or facsimile.
    (c) Reply to petition. Within 2 days after service of the petition, 
the Administrator may file a reply to the petition in support of his or 
her determination as to the existence of an emergency requiring the 
order to be effective immediately. Such reply shall be served on both 
the Board and the certificate holder via overnight delivery or 
facsimile. No written submissions other than the petition and reply 
shall be filed, except in accordance with paragraph (d) of this 
section.
    (d) Hearing. No hearing shall be held on a petition for review of 
an emergency determination. However, a law judge may, on his or her own 
initiative, solicit from the parties additional information to 
supplement that provided in the petition and reply.
    (e) Disposition. Within 5 days after receipt of the petition, the 
chief judge (or, if the case has been assigned, the law judge to whom 
the case is assigned) shall dispose of the petition by written order, 
finding whether the Administrator abused his or her discretion in 
determining that there exists an emergency requiring the order to be 
immediately effective, based on the acts and omissions alleged in the 
Administrator's order, assuming the truth of such factual allegations.
    (f) Effect of law judge's ruling. If the law judge grants the 
petition, the effectiveness of the Administrator's order will be stayed 
until final disposition of the respondent's appeal by the law judge or 
the Board. In such cases, the remaining provisions of this subpart 
(Secs. 821.55-821.57) shall continue to apply, and their applicability 
may not be waived by the respondent without the consent of the 
Administrator. If the petition is denied, the Administrator's order 
shall remain in effect, and the remaining provisions of this subpart 
shall continue to apply, unless respondent waives their applicability. 
The law judge's ruling on the petition shall be final, and is not 
appealable to the Board.


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

    (a) Complaint. Within 3 days after receipt of the appeal, or within 
3 days after service of a law judge's order disposing of a petition for 
review of the Administrator's emergency determination, whichever is 
later, the Administrator shall file with the Board via overnight 
delivery or facsimile, an original and 3 copies of the emergency or 
other immediately effective order as the complaint, and serve a copy on 
the respondent by the same means.
    (b) Answer to the complaint. Within 5 days after service of the 
complaint upon respondent, he or she shall file an answer thereto, and 
serve a copy of the answer on the Administrator. Failure to deny any 
allegation or allegations of the complaint may be deemed an admission 
of the allegation or allegations not answered.
    (c) Motion to dismiss and motion for more definite statement. No 
motion to dismiss or for a more definite statement shall be made, but 
the substance thereof may be stated in the respondent's answer. The law 
judge may permit or require a more definite statement or other 
amendment to any pleading at the hearing, upon good cause shown and 
upon just and reasonable terms.
    (d) 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.


Sec. 821.56  Hearing and initial decision.

    (a) Notice of hearing. Within 5 days of the receipt of respondent's 
appeal, or immediately upon the issuance of a law judge's order 
disposing of a petition for review of the Administrator's emergency 
determination (if later), the parties will be notified of the date, 
time and place of the hearing. The hearing shall be set for a date no 
later than 30 days after the filing of the appeal. To the extent not 
inconsistent with this section, the provisions of Sec. 821.37(a) also 
apply.
    (b) Initial decision. The initial decision shall be made orally on 
the record at the termination of the hearing and after opportunity for 
oral argument. The provisions of Sec. 821.42(b) and (d) shall be 
applicable (covering content, furnishing a copy of the initial decision 
excerpted from the record, and issuance date).
    (c) Conduct of hearing. The provisions of Secs. 821.38, 821.39, and 
821.40, covering evidence, argument and submissions, and record, shall 
be applicable.
    (d) Effect of law judge's initial decision. If no appeal to the 
Board by either party, by motion or otherwise, is filed within the time 
allowed, the law judge's initial decision shall become final but shall 
not be deemed to be a precedent binding on the Board.


Sec. 821.57  Procedure on appeal.

    (a) Time within which to file a notice of appeal and content. 
Within 2 days after the initial decision has been orally rendered, 
either party to the proceeding may appeal therefrom by filing with the 
Board and serving upon the other parties a notice of appeal. The time 
limitations for the filing of documents are not extended by the 
unavailability of the hearing transcript.
    (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.
    (d) Petitions for reconsideration, rehearing, reargument, or 
modification of order. The only petitions for reconsideration, 
rehearing, reargument,

[[Page 42641]]

or modification of an order which the Board will entertain are 
petitions based on the ground that new matter has been discovered. Such 
petitions must set forth the following:
    (1) The new matter;
    (2) Affidavits of prospective witnesses, authenticated documents, 
or both, or an explanation of why such substantiation is unavailable; 
and
    (3) A statement that such new matter could not have been discovered 
by the exercise of due diligence prior to the date the case was 
submitted to the Board.


Sec. 821.64  [Amended]

    11. Amend paragraph (a) of Sec. 821.64 by removing the words 
``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)'' and inserting 
in their place the words ``49 U.S.C. 1153 and 46110.''

    Dated: July 5, 2000.
Jim Hall,
Chairman.
[FR Doc. 00-17417 Filed 7-10-00; 8:45 am]
BILLING CODE 7533-01-P