[Federal Register Volume 68, Number 82 (Tuesday, April 29, 2003)]
[Rules and Regulations]
[Pages 22623-22635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-10559]


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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: Final rule.

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SUMMARY: On July 11, 2000, the Board published, at 65 FR 42637, interim 
rules to implement Section 716 of the Aviation Investment and Reform 
Act for the 21st Century. That provision of law conferred on the Board 
the authority to review determinations by the Administrator of the 
Federal Aviation Administration (FAA) that an emergency exists which 
warrants the immediate effectiveness of an order amending, modifying, 
suspending or revoking certain FAA-issued certificates. The only 
significant changes effected by the final rule involve the standard to 
be applied by the Board's administrative law judges in reviewing 
emergency determinations, and the adoption of a procedure to enhance 
the prospective value of the law judges' decisions by reflecting the 
Board's opinion on them.

DATES: These final rules are effective on June 30, 2003.

FOR FURTHER INFORMATION CONTACT: David E. Bass, Deputy General Counsel, 
(202) 314-6080.

SUPPLEMENTARY INFORMATION: Section 716 of the Aviation Investment and 
Reform Act for the 21st Century, Public Law 106-181, enacted April 15, 
2000, was codified at 49 U.S.C. 44709 (e)(3).

Final Rules

    Board Review of Law Judges' Decisions (see Sec.  821.54(f)). The 
interim rules currently in effect delegated to the Board's 
administrative law judges the authority to review emergency 
determinations of the Administrator, without right of appeal to the 
Board. We have decided to extend that delegation indefinitely, as our 
experience thus far does not suggest a need for further review, or 
review by the Board itself instead of a law judge, and a multi-layered 
process would be difficult, if possible at all, to administer in the 
statutory 5-day period within which the Board must act on a petition. 
We, therefore, will not, as recommended by some commenters, institute a 
procedure for review, at the Board level, of the law judges' decisions 
on petitions. Nevertheless, we do find merit in the concern that a lack 
of Board review could adversely affect uniformity among the decisions 
of our law judges on common issues and deprive future litigants (and 
the law judges) the guidance of precedent. Accordingly, we will, 
henceforth, undertake to register, in those cases that are appealed to 
the Board for a decision on the merits of an emergency or other 
immediately effective order of the Administrator, our concurrence or 
disagreement with the law judge's ruling on a petition, whenever, in 
our judgment and if time permits--it would be beneficial to address the 
issues raised. When we differ with a ruling, or agree for different 
reasons, we will provide our views.
    Standard of Review (see Sec.  821.54(e)). Several commenters 
contend that the ``abuse of discretion'' standard established in the 
interim rules is inappropriate and should be discarded in favor of the 
``preponderance of the evidence'' standard employed in our 
adjudications on the merits of the Administrator's charges. Related to 
this view is the belief that the Administrator--and not the affected 
certificate holder--should bear the burden of proof in the review. 
Although we originally believed that the approach taken in an analogous 
judicial setting represented a model we should emulate, the Board has 
come to the view that the ``abuse of discretion'' standard, commonly 
applied by the courts in

[[Page 22624]]

examining the validity of decisions committed by law to agency 
discretion, is more deferential to the Administrator's emergency 
determination judgments than is warranted under our new authority, 
given, among other things, the Board's own expertise in assessing 
matters involving aviation safety. However, we disagree with the view 
that a ``preponderance of the evidence'' standard should, or could, be 
substituted in its place. An emergency determination is not, as we see 
it, a finding or conclusion that easily lends itself to evidentiary 
proof. And the right to challenge an emergency determination before the 
Board should neither be seen as, nor be allowed to become, an 
opportunity to contest the factual predicate underlying the 
Administrator's judgment that considerations of aviation safety require 
an individual or an entity to be deprived of certificate privileges 
pending adjudication of the charges. The Board's rules provide a 
contemporaneous, expedited review process designed for that very 
purpose which must, by statute, be fully completed within 60 days. We 
are aware of no Congressional desire to supplant that process with the 
5-day emergency determination review process mandated under the Board's 
new authority.
    An emergency determination is essentially a judgment call, whose 
necessity in the interest of aviation safety should be more or less 
self-evident in light of the nature or seriousness of the accompanying 
allegations. Air safety depends on, among other things, both the 
competence and trustworthiness of certificate holders. In fact, 
certificate holders who choose to disregard or defy regulations or safe 
operating practices may well pose a greater risk to the lives and 
property of others than those who inadvertently breach such 
conventions, or lack the knowledge or ability to avoid breaches, for 
the former arguably create a higher degree of uncertainty in a system 
that cannot function safely if the actions of all users cannot be 
confidently predicted. Thus, in addition to conduct reflecting 
seriously sub-par operating competence or grossly inferior technical 
qualifications, behaviors such as refusing a drug test, or operating an 
aircraft while impaired or during a certificate suspension, reveal the 
kind of lawlessness or deficient judgment that ordinarily compels the 
conclusion that the effectiveness of a certificate action should not be 
delayed pending the adjudication of the resulting charges. The same 
conclusion may also be justified in the face of flagrant or repeated 
intentional falsification and cases involving a drug conviction, while 
the appropriateness of the exercise of emergency authority in other 
kinds of actions, such as those in which the Administrator concludes 
that a commercial operator should not be given any more time to fulfill 
past assurances that deficiencies in its operations will be promptly 
corrected, rests on a more individualized assessment of the threat to 
the public safety represented by the specific putative circumstances 
identified by the Administrator.
    As noted above, the ``abuse of discretion'' standard set out in the 
interim rules subjugates the Board's own capacity to judge for itself 
the need for affecting the immediate forfeiture of certificate rights 
to the presumed correctness of decisions the Administrator has already 
made. Because we believe that the exercise of our authority to reverse 
an emergency determination should not be limited to situations where 
the Administrator's judgment cannot be said to be rationally 
supportable, but should, in addition, be applied where we do not agree, 
for example, that the potential risks to air safety apparent in the 
Administrator's charges demand the immediate imposition of a sanction 
before the charges have been fully adjudicated, we will not include the 
``abuse of discretion'' standard in the final rule. Rather, we will 
entrust to the sound judgment and discretion of the law judge the task, 
and the somber responsibility, of determining in each specific case 
whether the Administrator's emergency determination was appropriate 
under the circumstances. The law judge may so find either because the 
determination is seen to have fairly or correctly balanced the 
certificate holder's interest in the uninterrupted enjoyment of 
certificate privileges in the face of as-yet unproved charges with the 
need to protect the public from those individuals or entities whose 
suspected misconduct or lack of qualification establishes or 
convincingly suggests that they cannot or will not exercise their 
certificate privileges pending the completion of the Board's appellate 
review process in accordance with all applicable standards and 
requirements, or because the allegations disclose such contempt for the 
rule of law or for considerations of aviation safety that they cannot 
or should not be trusted to exercise the care, judgment and 
responsibility expected of a certificate holder while adjudication of 
their appeal from the Administrator's order is pending.
    Burden of Proof (see Sec. Sec.  821.54(b)-(e)). Consistent with our 
view that an emergency determination is more a matter of judgment than 
evidence, we do not believe that either the Administrator or the 
certificate holder has a burden of proof, in the traditional sense.\1\ 
At the same time, we do not believe that a certificate holder can 
reasonably be expected to be able to challenge an emergency 
determination, or that our law judges can effectively review one, 
unless the Administrator first provides his or her reasons for 
believing that an emergency exists. In this connection, some commenters 
urge us to require the Administrator to attach to the emergency order a 
copy of the FAA's Enforcement Investigative Report, since it would 
presumably supply the information needed to evaluate the propriety of 
the emergency determination. We find it unnecessary to consider the 
several arguments the Administrator has advanced against the imposition 
of such a requirement, including the suggestion that we lack the 
authority to direct the release of any information in advance of an 
appeal to us. It seems to us that the absence of an ``abuse of 
discretion'' standard in the final rule will encourage the 
Administrator to explain in the order the basis for the emergency 
determination, in order to avoid having a law judge assess the issue 
without the benefit of the Administrator's views.\2\ In this latter 
connection, we note that a frequent contention in emergency challenge 
petitions is the assertion that, if a genuine emergency existed, the 
Administrator would have taken less time to issue the order. While this 
circumstance may occasionally be relevant to the evaluation a law judge 
must make, it should not be allowed to obscure the proper focus of the 
inquiry. In other words, an arguably dilatory prosecution does not 
vitiate an otherwise proper judgment as to the necessity, in the 
interest of aviation

[[Page 22625]]

safety, for the immediate effectiveness of an action against a 
certificate before the certificate holder's appeal is adjudicated.
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    \1\ We are not persuaded by the Administrator's suggestion that 
a petitioner for relief from an emergency determination is 
essentially a proponent of a rule who, under the Administrative 
Procedures Act (APA), bears a burden of proof. See 5 U.S.C. 556. It 
seems to us that a more consistent reading of that statutory 
provision would make the Administrator the proponent of a rule, by 
virtue of his or her issuance of a certificate order. We would point 
out, moreover, that the APA does not contemplate a process in which 
a sanction can be imposed before the relevant charges have been 
established on a hearing record.
    \2\ So as to afford the Administrator ample transition time to 
adapt her orders accordingly, and avoid impeding her expeditious 
processing of matters already under investigation, the final rule 
will become effective 60 days from this date.
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    In keeping with this de facto shift in the burden of going forward 
with a supporting rationale, the final rule will dispense with the 
requirement, in Sec.  821.54(b), that the petition ``enumerate the 
specific grounds on which the certificate holder challenges the 
Administrator's determination that an emergency exists.'' Instead, the 
rule, though not requiring the certificate holder to do anything more 
than contest the emergency determination by filing a petition, will 
permit the certificate holder to assert only such reasons as that 
individual or entity may have for believing that the effectiveness of 
the certificate order should be stayed pending the future adjudication 
of the Administrator's allegations. If a petition contains reasons for 
the certificate holder's challenge to the emergency determination, the 
Administrator may file a reply, which must be limited to matters of 
rebuttal.
    Miscellany (see Sec. Sec.  821.53(b) and 821.54(b)). Dropped from 
the final rule is the requirement, in Sec.  821.53(b), that an appeal 
from an emergency or other immediately effective order be accompanied 
by a copy of the order itself. While it is essential for a copy of the 
order to be included with a petition seeking review of an emergency 
determination--especially under Sec.  821.54(b) and (c), as amended by 
these final rules--because the law judge must, within a short 
timeframe, evaluate whether the emergency determination was warranted, 
based on the acts and omissions alleged by the Administrator in the 
order, there is no such practical necessity where the Administrator's 
emergency determination is not challenged, and immediate identification 
of the specific allegations of the order is, therefore, not vital. In 
such instances, it is sufficient for the certificate holder to merely 
indicate in the appeal that the appeal is from an emergency or other 
immediately effective order, so that the Board is aware that subpart I 
is applicable.

Related Matters

    Since part 821 was last amended with the publication of the interim 
rules governing our review of the Administrator's emergency 
determinations, we have reexamined our procedural rules in their 
entirety with an eye toward updating and modernizing them by correcting 
terminology errors that have developed over time, eliminating dated, 
unnecessary, redundant or confusing language, and having certain 
provisions of the rules more closely reflect actual practice. These 
housekeeping measures have resulted in the adoption of a significant 
number of amendments, and we have, for purposes of clarity, decided to 
revise part 821 in toto, rather than publish such changes in piecemeal 
fashion. While the Board considers these changes to be essentially 
procedural in nature, one revision that may be viewed as substantive 
and, thus, bears special note, is an amendment to Sec.  821.61, which 
makes the prohibition on ex parte communications applicable from the 
time a petition for review of a certificate denial or an appeal from a 
certificate action of the Administrator is filed, or the time the 
communicator has knowledge that a petition or appeal will be filed. 
Under that rule prior to amendment, the prohibition did not apply until 
the matter was noticed for hearing, or the communicator had knowledge 
that it would be. This revision, by making the prohibition apply from 
the time the Board's jurisdiction attaches, rather than a later time, 
more closely reflects the ethical considerations involved and clarifies 
the Board's intolerance for communications of an ex parte nature 
throughout its involvement in the adjudication of air safety matters.

List of Subjects in 49 CFR Part 821

    Administrative practice and procedure, Airmen, Aviation safety.

0
For the reasons set forth in the preamble, part 821 of title 49 of the 
Code of Federal Regulations is revised to read as follows:

PART 821--RULES OF PRACTICE IN AIR SAFETY PROCEEDINGS

Subpart A--General Provisions
Sec.
821.1 Definitions.
821.2 Applicability and description of part.
821.3 Description of docket numbering system.
Subpart B--General Rules Applicable to Petitions for Review, Appeals to 
the Board, and Appeals from Law Judges' Initial Decisions and 
Appealable Orders
821.6 Appearances and rights of witnesses.
821.7 Filing of documents with the Board.
821.8 Service of documents.
821.9 Intervention and amicus appearance.
821.10 Computation of time.
821.11 Extensions of time.
821.12 Amendment and withdrawal of pleadings.
821.13 Waivers.
821.14 Motions.
821.15 Motion to disqualify a Board Member.
821.16 Interlocutory appeals from law judges' rulings on motions.
821.17 Motions to dismiss, for judgment on the pleadings and for 
summary judgment.
821.18 Motion for a more definite statement.
821.19 Depositions and other discovery.
821.20 Subpoenas, witness fees, and appearances of Board Members, 
officers and employees.
821.21 Official notice.
Subpart C--Special Rules Applicable to Proceedings Under 49 U.S.C. 
44703
821.24 Initiation of proceeding.
821.25 Burden of proof.
821.26 Motion to dismiss petition for review for lack of standing.
Subpart D--Special Rules Applicable to Proceedings Under 49 U.S.C. 
44709
821.30 Initiation of proceeding.
821.31 Complaint procedure.
821.32 Burden of proof.
821.33 Motion to dismiss stale complaint.
Subpart E--Law Judges
821.35 Assignment, duties and powers.
Subpart F--Hearing
821.37 Notice of hearing.
821.38 Evidence.
821.39 Argument and submissions.
821.40 Record.
Subpart G--Initial Decision
821.42 Initial decision by law judge.
821.43 Effect of law judge's initial decision or appealable order 
and appeal therefrom.
Subpart H-- Appeal from Initial Decision
821.47 Notice of appeal.
821.48 Briefs and oral argument.
821.49 Issues on appeal.
821.50 Petition for rehearing, reargument, reconsideration or 
modification of an order of the Board.
Subpart I--Special Rules Applicable to Proceedings Involving Emergency 
and Other Immediately Effective Orders
821.52 General.
821.53 Appeal.
821.54 Petition for review of Administrator's determination of 
emergency.
821.55 Complaint, answer to complaint, motions and discovery.
821.56 Hearing and initial decision or appealable order of law 
judge.
821.57 Procedure on appeal.
Subpart J--Ex Parte Communications
821.60 Definitions.
821.61 Prohibited ex parte communications.
821.62 Procedures for handling ex parte communications.
821.63 Requirement to show cause and imposition of sanction.

Subpart K--Judicial Review of Board Orders

821.64 Judicial review.

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

[[Page 22626]]

Subpart A--General Provisions


Sec.  821.1  Definitions.

    (a) As used in this part:
    Administrator means the Administrator of the Federal Aviation 
Administration (FAA);
    Airman certificate means any certificate issued by the FAA to an 
airman, and shall include medical certificates required for airmen;
    Appeal from an initial decision means a request to the Board to 
review a law judge's decision;
    Appeal to the Board means a request to the Board for the review by 
a law judge of an order of the Administrator;
    Appealable order means an order of a law judge 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, or one granting a 
motion for judgment on the pleadings or summary judgment. Appealable 
order does not include an order granting in part a motion to dismiss 
and requiring an answer to any remaining allegation or allegations, an 
order granting in part judgment on the pleadings or summary judgment, 
or a ruling on an interlocutory matter;
    Board means the National Transportation Safety Board;
    Case Manager means the officer of the Board's Office of 
Administrative Law Judges responsible for the processing of cases 
within that office;
    Certificate means any certificate issued by the Administrator under 
49 U.S.C. Chapter 447;
    Chief Law Judge means the administrative law judge in charge of the 
adjudicative function of the Board's Office of Administrative Law 
Judges;
    Complaint means an order of the Administrator, reissued for 
pleading purposes, from which an appeal to the Board has been taken 
pursuant to sections 49 U.S.C. 44106, 44709 or 46301;
    Emergency order means an order of the Administrator issued pursuant 
to 49 U.S.C. 44709, which recites that an emergency exists and that 
safety in air commerce or air transportation and the public interest 
require the immediate effectiveness of such order;
    Flight engineer means a person who holds a flight engineer 
certificate issued under Part 63 of Title 14 of the Code of Federal 
Regulations;
    Initial decision means the law judge's decision on the issue or 
issues remaining for disposition at the close of a hearing;
    Law judge means the administrative law judge assigned to hear and 
preside over the respective proceeding;
    Mechanic means a person who holds a mechanic certificate issued 
under Part 65 of Title 14 of the Code of Federal Regulations;
    Order means the document (sometimes also termed the complaint) by 
which the Administrator seeks to amend, modify, suspend or revoke a 
certificate, or impose a civil penalty;
    Petition for review means a petition filed pursuant to 49 U.S.C. 
44703 for review of the Administrator's denial of an application for 
issuance or renewal of an airman certificate;
    Petitioner means a person who has filed a petition for review;
    Pilot means a person who holds a pilot certificate issued under 
Part 61 of Title 14 of the Code of Federal Regulations;
    Repairman means a person who holds a repairman certificate issued 
under Part 65 of Title 14 of the Code of Federal Regulations;
    Respondent means the holder of a certificate who has appealed to 
the Board from an order of the Administrator amending, modifying, 
suspending or revoking a certificate, or imposing a civil penalty.
    (b) Terms defined in 49 U.S.C. Chapters 11, 447 and 463 are used as 
so defined.


Sec.  821.2  Applicability and description of part.

    The provisions of this part govern all air safety proceedings, 
including proceedings before a law judge on petition for review of the 
denial of any airman certificate (including a medical certificate), or 
on appeal from any order of the Administrator amending, modifying, 
suspending or revoking a 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 such capacity. All proceedings on 
appeal to the Board from any initial decision or order of a law judge 
are also governed by this part.


Sec.  821.3  Description of docket numbering system.

    In addition to sequential numbering of cases as received, each case 
formally handled by the Board will receive a letter prefix. These 
letter prefixes reflect the case type: ``SE'' for safety enforcement 
(certificate suspension/revocation) cases; ``SM'' (safety medical) for 
cases involving denials of medical certification; ``CD'' for cases 
involving non-medical certificate denials; ``SR'' for cases involving 
safety registration issues under 49 U.S.C. 44101 et seq.; ``CP'' for 
cases involving the imposition of civil penalties; ``NA'' for cases in 
which a petition for review or appeal is not accepted because of a 
patent procedural deficiency; and ``EAJA'' for cases involving 
applications for fees and expenses under the Equal Access to Justice 
Act, governed by Part 826.

Subpart B General Rules Applicable to Petitions for Review, Appeals 
to the Board, and Appeals From Law Judges Initial Decisions and 
Appealable Orders


Sec.  821.6  Appearances and rights of witnesses.

    (a) Any party to a proceeding may appear and be heard in person, or 
by an attorney or other representative designated by that party. Upon 
hearing, and for good cause shown, the Board may suspend or bar any 
person from practicing before it.
    (b) Any person appearing in person in any proceeding governed by 
this part may be accompanied, represented and advised, and may be 
examined by, his or her own counsel or representative.
    (c) Any person who submits data or evidence in a proceeding 
governed by this part may, by timely request, procure a copy of any 
document submitted by him or her, or a copy of any transcript made of 
his or her testimony, on payment of reasonable costs. Original 
documents, data or evidence may be retained by a party upon permission 
of the law judge or the Board, upon substitution of a copy thereof.
    (d) Any party to a proceeding who is represented by an attorney or 
representative shall notify the Board of the name, address and 
telephone number of that attorney or representative. In the event of a 
change in representation, the party shall notify the Board (in the 
manner provided in Sec.  821.7) and the other parties to the proceeding 
(pursuant to Sec.  821.8) before the new attorney or representative may 
participate in the proceeding in any way.


Sec.  821.7  Filing of documents with the Board.

    (a) Filing address, method and date of filing. (1) Except as 
provided in paragraph (a)(2) of this section, documents are to be filed 
with the Office of Administrative Law Judges, National Transportation 
Safety Board, 490 L'Enfant Plaza East, SW., Room 4704, Washington, DC 
20594, and addressed to the assigned law judge, if any. If the 
proceeding has not yet been assigned to a law judge, documents shall be 
addressed to the Case Manager.
    (2) Subsequent to the filing of a notice of appeal from a law 
judge's initial decision or appealable order, the issuance of a 
decision permitting an

[[Page 22627]]

interlocutory appeal, or the expiration of the period within which an 
appeal from the law judge's initial decision or appealable order may be 
filed, all documents are to be filed with the Office of General 
Counsel, National Transportation Safety Board, 490 L'Enfant Plaza East, 
SW., Room 6401, Washington, DC 20594.
    (3) Documents shall be filed by personal delivery, by U.S. Postal 
Service first-class mail or by overnight delivery service. Except as 
specifically provided in Subpart I (governing emergency proceedings), 
facsimile filing is limited. Documents to be filed with a law judge or 
the Case Manager may be transmitted by facsimile, but such filing must 
be followed, no later than the next business day, by transmission of 
the original by personal delivery, first-class mail or overnight 
delivery service. Facsimile filing of documents to be filed with the 
Office of General Counsel is not permitted unless specifically 
authorized under Subpart I or requested by that office.
    (4) Documents shall be deemed filed on the date of personal 
delivery; on the send date shown on the facsimile (where facsimile 
service is permitted under paragraph (a)(3) of this section or Subpart 
I); 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. Where 
the document bears a postmark that cannot reasonably be reconciled with 
the mailing date shown on the certificate of service, the document will 
be deemed filed on the date of the postmark.
    (b) Number of copies. Service on the Board of petitions for review, 
appeals from orders of the Administrator, and notices of appeal from 
law judges' initial decisions and appealable orders shall be by 
executed original and 3 copies. Service of all other documents shall be 
by executed original and one copy. Copies need not be signed, but the 
name of the person signing the original shall be shown thereon.
    (c) Form. (1) Petitions for review, appeals to the Board from 
orders of the Administrator, and notices of appeal from law judges' 
initial decisions and appealable orders may be in the form of a letter 
signed by the petitioner or appealing party, and shall be typewritten 
or in legible handwriting.
    (2) Documents filed with the Board consisting of more than one page 
may be affixed only in the upper left-hand corner by staple or clip, 
and shall not be bound or hole-punched. Any document failing to comply 
with this requirement is subject to being returned to the filing party.
    (d) Content. Each document filed with the Board shall contain a 
concise and complete statement of the facts relied upon, and the relief 
sought, by the filing party.
    (e) Subscription. The original of every document filed shall be 
signed by the filing party, or by that party's attorney or other 
representative.
    (f) Designation of person to receive service. The initial document 
filed by a party in a proceeding governed by this part shall show on 
the first page the name, address and telephone number of the person or 
persons who may be served with documents on that party's behalf.
    (g) To whom directed. All motions, requests and documents submitted 
in connection with petitions for review and appeals to the Board from 
orders of the Administrator shall designate, and be addressed to, the 
law judge to whom the proceeding has been assigned, if any. If the 
proceeding has not yet been assigned to a law judge, the document shall 
bear the designation ``unassigned,'' and shall be addressed to the Case 
Manager. All motions, requests and documents submitted subsequent to 
the filing of a notice of appeal from a law judge's initial decision or 
appealable order, or a decision permitting an interlocutory appeal, or 
after the expiration of the period within which an appeal from the law 
judge's initial decision or appealable order may be filed, shall be 
addressed to the Board's General Counsel.


Sec.  821.8  Service of documents.

    (a) Who must be served. (1) Copies of all documents filed with the 
Board must be served on (i.e., sent to) all other parties to the 
proceeding, on the date of filing, by the person filing them. A 
certificate of service shall be a part of each document and any copy or 
copies thereof tendered for filing, and shall certify concurrent 
service on the Board and the parties. A certificate of service shall be 
in substantially the following form:

    I hereby certify that I have this day served the foregoing 
[specify document] on the following party's counsel or designated 
representatives [or party, if without counsel or representative], at 
the address indicated, by [specify the method of service (e.g., 
first-class mail, personal service, etc.)]

[List names and addresses of all persons served]
Dated at ----, this --------day of ---- 20----
 (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 directly on the party.
    (b) Method of service. (1) Service of documents by any party on any 
other party shall be accomplished by the method prescribed in Sec.  
821.7(a)(3) for the filing of documents with the Board.
    (2) Notices of hearing, written initial decisions, law judges' 
appealable orders and Board orders on appeal shall be served by the 
Board on parties other than the Administrator by certified mail. Such 
documents may be served on the Administrator by first-class mail or 
facsimile. The Board may serve all other documents on the parties by 
first-class mail or facsimile.
    (c) Where service shall be made. Except for personal service, 
parties shall be served at the address appearing in the official 
record. If no address for service on the Administrator is designated in 
the record, documents shall be addressed for service to the Office of 
Chief Counsel, 800 Independence Avenue, SW., Washington, DC 20591. In 
the case of an agent designated by an air carrier under 49 U.S.C. 
46103, service 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 receipt has been acknowledged 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 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)(4).


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 has a property, financial or other legitimate interest that will 
not be adequately represented by the existing parties, and that such 
intervention will not unduly broaden the issues or delay the 
proceeding. Except for good cause shown, no motion for leave to 
intervene will be entertained if filed less than 15 days prior to the 
hearing. The extent to which an intervenor may participate in

[[Page 22628]]

the proceeding is wholly within the law judge's discretion.
    (b) Amicus curiae briefs. A brief of amicus curiae in a matter on 
appeal from a law judge's initial decision or appealable order may be 
filed, if accompanied by written consent of all the parties, or by 
leave of the General Counsel if, in his or her opinion, the brief will 
not unduly broaden the matters at issue or prejudice any party to the 
proceeding. A brief may be conditionally filed with motion for leave. 
The motion for leave 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 briefing time allowed the 
party whose position the brief would support, unless good cause for 
late filing is shown, in which event the General Counsel may provide an 
opportunity for response in determining whether to accept the amicus 
brief.


Sec.  821.10  Computation of time.

    In computing any period of time prescribed or allowed by this part, 
by notice or order of a law judge or the Board, 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 not 
a Saturday, Sunday or 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.


Sec.  821.11  Extensions of time.

    (a) On written request filed with the Board and served on all other 
parties, or oral request with any extension granted confirmed in 
writing and served on all other parties by the requestor, and for good 
cause shown, the law judge or the Board may grant an extension of time 
to file any document; however, no extension of time will be granted for 
the filing of a document to which a statutory time limit applies.
    (b) Extensions of time to file petitions for reconsideration shall 
not be granted upon a showing of good cause, but only in extraordinary 
circumstances.
    (c) The General Counsel is authorized to grant unopposed extensions 
of time on timely oral request without a showing of good cause in cases 
on appeal to the Board from a law judge's initial decision or 
appealable order. Written confirmation of such a grant of extension of 
time must promptly be sent by the requesting party to the Board and 
served on all other parties to the proceeding.


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 its pleadings by filing an amended pleading with the 
Board and serving copies thereof on all other parties. After that time, 
amendment shall be allowed only at the discretion of the law judge. In 
the case of amendment of an answerable pleading, the law judge shall 
allow any 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 a petition for review, an 
appeal to the Board, a complaint, or an appeal from a law judge's 
initial decision or appealable order, pleadings may be withdrawn only 
upon approval of the law judge or the Board.


Sec.  821.13  Waivers.

    Waivers of any rights provided by statute or regulation shall 
either be in writing or by stipulation made at the hearing and entered 
into the record, and shall set forth the precise terms and conditions 
of the waiver.


Sec.  821.14  Motions.

    (a) General. Any application to a law judge or to the Board for an 
order or ruling not otherwise provided for in this part shall be by 
motion. Prior to the assignment of the proceeding to a law judge, all 
motions shall be addressed to the Case Manager. Thereafter, and prior 
to the expiration of the period within which an appeal from the law 
judge's initial decision may be filed, all motions shall be addressed 
to the law judge. At all other times, motions shall be addressed to the 
General Counsel.
    (b) Form and content. Unless made during a hearing, motions shall 
be made in writing, shall state with particularity the grounds for the 
relief requested, and shall be accompanied by affidavits or other 
evidence relied upon. Motions introduced during a hearing may be made 
orally on the record, unless the law judge directs otherwise.
    (c) Replies to motions. Except when a motion is made during a 
hearing, any party may file a reply, accompanied by such affidavits or 
other evidence as that party desires to rely upon, within 15 days after 
the date of service of the motion on that party. Upon notice to the 
parties, the law judge or the Board may, where appropriate, set a 
shorter time for filing a reply. Where a motion is made during a 
hearing, the reply may be made at the hearing, or orally or in writing 
within such time as the law judge may fix.
    (d) Oral argument; briefs. No oral argument will be heard on a 
motion unless the law judge or the Board directs otherwise.
    (e) Effect of pendency of motions. Except as provided in Sec. Sec.  
821.17(a) and 821.18(a), the filing or pendency of a motion shall not 
automatically alter or extend the time fixed in this part (or any 
extension thereof previously granted) for the parties to take any 
actions.


Sec.  821.15  Motion to disqualify a Board Member.

    A motion requesting that a Board Member disqualify himself or 
herself from participating in a proceeding under this part shall be 
filed in writing with the Board.


Sec.  821.16  Interlocutory appeals from law judges' rulings on 
motions.

    Rulings of law judges on motions which are not dispositive of the 
proceeding as a whole may not be appealed to the Board prior to its 
consideration of the entire proceeding, except in extraordinary 
circumstances and with the consent of the law judge who made the 
ruling. Interlocutory appeals shall be disallowed unless the law judge 
finds, either orally on the record or in writing, that to allow such an 
appeal is necessary to prevent substantial detriment to the public 
interest or undue prejudice to a party. If an interlocutory appeal is 
allowed, any party may file a brief with the Board within such time as 
the law judge directs. No oral argument will be heard unless the Board 
directs otherwise.


Sec.  821.17  Motions to dismiss, for judgment on the pleadings and for 
summary judgment.

    (a) Motions to dismiss petition for review or complaint. A motion 
to dismiss a petition for review or a complaint may be filed in lieu of 
an answer, within the time limit for filing an answer set forth in 
Sec.  821.24(c) or Sec.  821.31(b). If such motion is not granted in 
its entirety, the answer shall be filed within 10 days after service of 
the law judge's order on the motion.
    (b) Motions to dismiss for lack of jurisdiction. A motion to 
dismiss on the ground that the Board lacks jurisdiction may be made by 
any party at any time.
    (c) Motions for judgment on the pleadings. A party may file a 
motion for

[[Page 22629]]

judgment on the pleadings on the basis that no answer has been filed, 
or that the pleadings disclose that there are no material issues of 
fact to be resolved and that party is entitled to judgment as a matter 
of law.
    (d) Motions for summary judgment. A party may file a motion for 
summary judgment on the basis that the pleadings and other supporting 
documentation establish that there are no material issues of fact to be 
resolved and that party is entitled to judgment as a matter of law.
    (e) Appeals of dismissal, judgment on the pleadings and summary 
judgment orders. When a law judge grants a motion to dismiss, a motion 
for judgment on the pleadings or a motion for summary judgment, and 
terminates the proceeding without a hearing, an appeal of such order to 
the Board may be filed pursuant to the provisions of Sec.  821.47. When 
a motion to dismiss, a motion for judgment on the pleadings or a motion 
for summary judgment is granted in part, Sec.  821.16 applies.


Sec.  821.18  Motion for a more definite statement.

    (a) A party may, in lieu of an answer, file a motion requesting 
that the petitioner's statement of reasons and supporting facts in a 
petition for review or the Administrator's allegations of fact in a 
complaint be made more definite and certain. The motion shall cite the 
defects complained of and the details sought. If the motion is granted 
and the law judge's order is not complied with within 15 days after 
service thereof, the law judge shall strike the portion or portions of 
the petition for review or complaint to which the motion is directed. 
If the motion is denied, the moving party shall file an answer within 
10 days after service of the law judge's order on the motion.
    (b) A party may file a motion to clarify an answer in the event 
that the answer fails to respond clearly to the petition for review or 
the complaint.


Sec.  821.19  Depositions and other discovery.

    (a) Depositions. After a petition for review or a complaint is 
filed, any party may take the testimony of any person, including a 
party, by deposition, upon oral examination or written questions, 
without seeking prior Board approval. Reasonable notice shall be given 
in writing to the other parties, stating the name of the witness and 
the time and place of the taking of the deposition. A copy of any 
notice of deposition shall be served on the law judge to whom the 
proceeding has been assigned or, if no law judge has been assigned, on 
the Case Manager. In other respects, the taking of any deposition shall 
be in compliance with the provisions of 49 U.S.C. 46104(c).
    (b) Exchange of information by the parties. At any time before the 
hearing, at the request of any party, the parties may exchange 
information, such as witness lists, exhibit lists, curricula vitae and 
bibliographies of expert witnesses, and other pertinent data. Any party 
may also use written interrogatories, requests for admissions and other 
discovery tools. The requesting party shall set the time for compliance 
with the request, which shall be reasonable and give due consideration 
to the closeness of the hearing, especially in emergency proceedings 
governed by Subpart I. Copies of discovery requests and responses shall 
be served on the law judge to whom the proceeding has been assigned or, 
if no law judge has been assigned, on the Case Manager. In the event of 
a dispute, either the assigned law judge or another law judge delegated 
this responsibility (if a law judge has not yet been assigned or if the 
assigned law judge is unavailable) may issue an appropriate order, 
including an order directing compliance with any ruling previously made 
with respect to discovery.
    (c) Use of the Federal Rules of Civil Procedure. Those portions of 
the Federal Rules of Civil Procedure that pertain to depositions and 
discovery may be used as a general guide for discovery practice in 
proceedings before the Board, where appropriate. The Federal Rules and 
the case law that construes them shall be considered by the Board and 
its law judges as instructive, rather than controlling.
    (d) Failure to provide or preserve evidence. The failure of any 
party to comply with a law judge's order compelling discovery, or to 
cooperate with a timely request for the preservation of evidence, may 
result in a negative inference against that party with respect to the 
matter sought and not provided or preserved, a preclusion order, 
dismissal or other relief deemed appropriate by the law judge.


Sec.  821.20  Subpoenas, witness fees, and appearances of Board 
Members, officers and employees.

    (a) Subpoenas. Except as provided in paragraph (c) of this section, 
subpoenas requiring the attendance of witnesses, or the production of 
documentary or tangible evidence, for the purpose of taking depositions 
or at a hearing, may be issued by the presiding law judge (or the chief 
law judge, if the proceeding has not been assigned to a law judge) upon 
application by any party. The application shall show the general 
relevance and reasonable scope of the evidence sought. Any person upon 
whom a subpoena is served may, within 7 days after service of the 
subpoena, but in any event prior to the return date thereof, file with 
the law judge who issued the subpoena a motion to quash or modify the 
subpoena, and such filing shall stay the effectiveness of the subpoena 
pending final action by the law judge on the motion.
    (b) Witness fees. Witnesses shall be entitled to the same fees and 
expenses for mileage as are paid to witnesses in the courts of the 
United States. The fees and expenses shall be paid by the party at 
whose request 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 and 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 and employees, or the production 
of documents in their custody. Applications for subpoenas requiring the 
attendance of such persons, or the production of such documents, must 
be addressed to the General Counsel, and shall set forth the need of 
the moving party for the testimony or documents sought, and a showing 
that such material is not now, and was not otherwise, reasonably 
available from other sources. Only upon the General Counsel's written 
approval for the issuance of a subpoena requiring a Board Member, 
officer or employee to provide testimony and/or to produce documents in 
connection with discovery or at a hearing may a law judge issue such a 
subpoena. The law judge shall not permit the testimony or documentary 
evidence provided by a Board Member, officer or employee to include any 
expression of opinion, or any account of statements of a party made 
during the Board's investigation of any accident.


Sec.  821.21  Official notice.

    Where a law judge or the Board intends to take official notice of a 
material fact not appearing in the evidence in the record, notice shall 
be given to all parties, who may within 10 days file a petition 
disputing that fact.

[[Page 22630]]

Subpart C--Special Rules Applicable to Proceedings Under 49 U.S.C. 
44703


Sec.  821.24  Initiation of proceeding.

    (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 denial. The petition must be filed with the Board 
within 60 days after the date on which notice of the Administrator's 
denial was served on the petitioner.
    (b) Form and content of petition. The petition may be in letter 
form. It shall identify the Administrator's certificate denial action, 
and contain a complete but concise statement of the reasons why the 
petitioner believes the certificate denial was erroneous.
    (c) Answer to petition. The Administrator shall file an answer to 
the petition for review within 20 days after the date of service of the 
petition. The answer shall specifically address each of the reasons set 
forth in the petition as to why the petitioner believes the certificate 
denial was erroneous.
    (d) Stay of proceeding pending request for special issuance 
(restricted) medical certificate. The Board lacks the authority to 
review requests for special issuance (restricted) medical certificates, 
or to direct that they be issued. Where a request for a special 
issuance certificate has been filed with the Administrator pursuant to 
the Federal Aviation Regulations, the Board will, upon the petitioner's 
written request, hold a petition for review of a denial of an 
unrestricted medical certificate in abeyance pending final action by 
the Administrator on the special issuance request, but for no longer 
than 180 days after the date on which the unrestricted medical 
certificate denial was issued.
    (e) New evidence. Where review of a denial of an unrestricted 
medical certificate is at issue, if the 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, such new medical evidence must be served on the 
Administrator at least 30 days prior to the hearing. Absent good cause, 
failure to so timely serve the new medical evidence on the 
Administrator will result in the exclusion of such evidence from the 
record. The Administrator may amend his or her answer to respond to 
such new medical evidence within 10 days after the date on which he or 
she was served therewith.


Sec.  821.25  Burden of proof.

    In proceedings under 49 U.S.C. 44703, the burden of proof shall be 
upon the petitioner.


Sec.  821.26  Motion to dismiss petition for review for lack of 
standing.

    Upon motion by the Administrator within the time limit for filing 
an answer, a petition for review shall be dismissed for lack of 
standing in either of the following instances:
    (a) If the petition seeks the issuance of the same type of 
certificate that was under an order of suspension on the date of the 
denial; or
    (b) If the petition seeks the issuance of the same type of 
certificate that had been revoked within one year of the date of the 
denial, unless the order revoking such certificate provides otherwise.

Subpart D--Special Rules Applicable to Proceedings Under 49 U.S.C. 
44709


Sec.  821.30  Initiation of proceeding.

    (a) Appeal. Where the Administrator has issued an order amending, 
modifying, suspending or revoking a certificate, the affected 
certificate holder (respondent) may file with the Board an appeal from 
the Administrator's order. The respondent shall simultaneously serve a 
copy of the appeal on the Administrator. The appeal must be filed with 
the Board within 20 days after the date on which the Administrator's 
order was served on the respondent, except as provided with respect to 
emergency and other immediately effective orders under Sec.  821.53(a).
    (b) Form and content of appeal. The appeal may be in letter form. 
It shall identify the certificate or certificates affected and the 
Administrator's action from which the appeal is sought.
    (c) Effect of filing timely appeal with the Board. Timely filing 
with the Board of an appeal from an order of the Administrator shall 
postpone the effective date of the order until final disposition of the 
appeal by the law judge or the Board, except where the order appealed 
from is an emergency or other immediately effective order, in which 
case the effectiveness of the order will not be so stayed during the 
pendency of the appeal.


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 Administrator shall (except as provided in Sec.  
821.55(a) with respect to emergency proceedings) file the complaint 
with the Board within 10 days after the date on which he or she was 
served with the appeal by the respondent, and shall simultaneously 
serve a copy of the complaint on the respondent. If the Administrator 
has determined that the respondent lacks qualification to be a 
certificate holder, the order filed as the complaint, or an 
accompanying statement, shall identify the pleaded factual allegations 
on which this determination is based.
    (b) Answer to complaint. The respondent shall (except as provided 
in Sec.  821.55(b) with respect to emergency proceedings) file with the 
Board an answer to the complaint within 20 days after the date on which 
the complaint was served by the Administrator, and shall simultaneously 
serve a copy of the answer on the Administrator. Failure by the 
respondent to deny the truth of any allegation or allegations in the 
complaint may be deemed an admission of the truth of the allegation or 
allegations not answered. The answer shall also identify any 
affirmative defenses that the respondent intends to raise at the 
hearing. The answer may be amended to include affirmative defenses in 
accordance with the provisions of Sec.  821.12(a).


Sec.  821.32  Burden of proof.

    In proceedings under 49 U.S.C. 44709, the burden of proof shall be 
upon the Administrator.


Sec.  821.33  Motion to dismiss stale complaint.

    Where the complaint states allegations of offenses which occurred 
more than 6 months prior to the Administrator's advising the respondent 
as to reasons for proposed action under 49 U.S.C. 44709(c), the 
respondent may move to dismiss such allegations as stale pursuant to 
the following provisions:
    (a) In those cases where the complaint does not allege lack of 
qualification of the respondent:
    (1) The Administrator shall be required to show, by reply filed 
within 15 days after the date of service of the respondent's motion, 
that good cause existed for the delay in providing such advice, or that 
the imposition of a sanction is warranted in the public interest, 
notwithstanding the delay or the reasons therefor.
    (2) If the Administrator does not establish good cause for the 
delay, or for the imposition of a sanction in the public interest 
notwithstanding the delay, the law judge shall dismiss the stale 
allegations and proceed to adjudicate the remaining portion of the 
complaint, if any.

[[Page 22631]]

    (b) In those cases where the complaint alleges lack of 
qualification of the respondent, the law judge shall first determine 
whether an issue of lack of qualification would be presented if all of 
the allegations, stale and timely, are assumed to be true. If so, the 
law judge shall deny the respondent's motion. If not, the law judge 
shall proceed as in paragraph (a) of this section.

Subpart E--Law Judges


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 each proceeding. 
Until such assignment, motions, requests and documents shall be 
addressed to the Case Manager for handling by the chief law judge, who 
may handle these matters personally or delegate them to other law 
judges for decision. After assignment of a proceeding to a law judge, 
all motions, requests and documents shall be addressed to that law 
judge. The authority of the assigned law judge shall terminate upon the 
expiration of the period within which appeals from initial decisions or 
appealable orders may be filed, or upon the law judge's withdrawal from 
the proceeding.
    (b) Powers of law judge. Law judges shall have the following 
powers:
    (1) To give notice of, and to hold, prehearing conferences and 
hearings, and to consolidate proceedings which involve a common 
question of law or fact;
    (2) To hold conferences, before or during the hearing, for the 
settlement or simplification of issues;
    (3) To issue subpoenas, and to take depositions or cause 
depositions to be taken;
    (4) To dispose of procedural requests or similar matters;
    (5) To rule on motions;
    (6) To regulate the conduct of hearings;
    (7) To administer oaths and affirmations;
    (8) To examine witnesses;
    (9) To receive evidence and rule upon objections and offers of 
proof; and
    (10) To issue initial decisions.
    (c) Disqualification. A law judge shall withdraw from a proceeding 
if, at any time, he or she deems himself or herself disqualified. If 
the law judge does not withdraw, and if an appeal from the law judge's 
initial decision is filed, the Board will, on motion of a party, 
determine whether the law judge should have withdrawn and, if so, order 
appropriate relief.

Subpart F--Hearing


Sec.  821.37  Notice of hearing.

    (a) Time and location of hearing. The law judge to whom the 
proceeding is assigned (or the chief judge) shall set a reasonable 
date, time and place for the hearing. Except as provided with respect 
to emergency proceedings in Sec.  821.56(a), a written notice of 
hearing shall be served on the parties at least 30 days in advance of 
the hearing. The law judge may set the hearing for a date fewer than 30 
days after the date of the issuance of the notice of hearing if all of 
the parties consent to an earlier hearing date. In setting the date of 
the hearing, due regard shall be given to the parties' discovery needs. 
In setting the place of the hearing, due regard shall be given to the 
location of the subject incident, the convenience of the parties and 
their witnesses, and the conservation of Board funds. Another relevant 
factor in determining the place of the hearing is the convenience of 
the hearing site to scheduled transportation service. Only in the most 
extraordinary circumstances may consideration be given to locating a 
hearing in a foreign country.
    (b) Hearing in several sessions. Where appropriate, the law judge 
may hold a hearing in more than one session, at the same or different 
locations.


Sec.  821.38  Evidence.

    Each party shall have the right to present a case-in-chief, or 
defense, by oral and 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) shall be admissible. All material and 
relevant evidence should be admitted, but the law judge may exclude 
unduly repetitious evidence.


Sec.  821.39  Argument and submissions.

    At the hearing, the law judge shall give the parties adequate 
opportunity for the presentation of arguments in support of, or in 
opposition to, motions, objections and proposed rulings. Prior to the 
issuance of the initial decision, the parties shall be afforded a 
reasonable opportunity to submit for consideration proposed findings 
and conclusions, and supporting reasons therefor.


Sec.  821.40  Record.

    The transcript of testimony and exhibits, together with all papers, 
requests and rulings filed in the proceeding before the law judge, 
shall constitute the exclusive record of the proceeding. Copies of the 
transcript may be obtained by any party upon payment of the reasonable 
cost thereof. A copy of the transcript may be examined at the National 
Transportation Safety Board, Office of Administrative Law Judges, 
Public Docket Section.

Subpart G--Initial Decision


Sec.  821.42  Initial decision by law judge.

    (a) Written or oral decision. The law judge may render his or her 
initial decision orally at the close of the hearing, or in writing at a 
later date, except as provided with respect to emergency proceedings in 
Sec.  821.56(c).
    (b) Content. The initial decision shall include findings and 
conclusions upon all material issues of fact, credibility of witnesses, 
law and discretion presented on the record, together with a statement 
of the reasons therefor.
    (c) Furnishing parties with, and issuance date of, oral decision. 
If the initial decision is rendered orally, a copy thereof, excerpted 
from the hearing transcript, shall be furnished to the parties by the 
Office of Administrative Law Judges. Irrespective of the date on which 
the copy of the decision is transmitted to the parties, the issuance 
date of the decision shall be the date on which it was orally rendered.


Sec.  821.43  Effect of law judge's initial decision or appealable 
order and appeal therefrom.

    If no appeal from the law judge's initial decision or appealable 
order is timely filed, the initial decision or order shall become final 
with respect to the parties, but shall not be binding precedent for the 
Board. The filing of a timely notice of appeal with the Board shall 
stay the effectiveness of the law judge's initial decision or order, 
unless the basis for the decision or order is that the Board lacks 
jurisdiction.

Subpart H--Appeal From Initial Decision


Sec.  821.47  Notice of appeal.

    (a) Time within which to file notice of appeal. A party may appeal 
from a law judge's initial decision or appealable order by filing with 
the Board, and simultaneously serving on the other parties, a notice of 
appeal, within 10 days after the date on which the oral initial 
decision was rendered or the written initial decision or appealable 
order was served (except as provided in Sec.  821.57(a) with respect to 
emergency proceedings). At any time before the time limit for filing an 
appeal from an initial decision or appealable order has passed, the law 
judge may, for good

[[Page 22632]]

cause, reopen the matter on notice to the parties.
    (b) Request for reconsideration of law judge's initial decision or 
order. A law judge may not reconsider an initial decision or appealable 
order after the time for appealing to the Board from the decision or 
order has expired, or after an appeal has been filed with the Board. 
However, a timely request for reconsideration by the law judge of the 
initial decision or appealable order, filed before an appeal to the 
Board is taken, will stay the deadline for filing an appeal until 10 
days after the date on which the law judge serves his or her decision 
on the reconsideration request. For the purpose of this paragraph, if a 
request for reconsideration and a notice of appeal are filed on the 
same day, the reconsideration request will be deemed to have been filed 
first.


Sec.  821.48  Briefs and oral argument.

    (a) Appeal brief. Except as provided in Sec.  821.57(b) with 
respect to emergency proceedings, each appeal must be perfected, within 
50 days after the date on which the oral initial decision was rendered, 
or 30 days after the date on which the written initial decision or 
appealable order was served, by the filing, and simultaneous service on 
the other parties, of a brief in support of the appeal. An appeal may 
be dismissed by the Board, either on its own initiative or on motion of 
another party, where a party who has filed a notice of appeal fails to 
perfect the appeal by filing a timely appeal brief.
    (b) Form and content of appeal brief. (1) In addition to the 
general form requirements for documents set forth in Sec.  821.7(c)(2), 
the appeal brief must be typewritten, double-spaced, on 8\1/2\-by-11 
inch paper. The appeal brief shall set forth the name, address and 
telephone number of the party, or the attorney or other representative 
filing the brief on the party's behalf. No appeal brief may contain 
more than 35 pages of text without prior leave of the General Counsel, 
upon a showing of good cause.
    (2) The appeal brief shall enumerate the appealing party's 
objections to the law judge's initial decision or appealable order, and 
shall state the reasons for such objections, including any legal 
precedent relied upon in support thereof.
    (3) Any error contained in the initial decision which is not 
objected to in the appeal brief may be deemed waived.
    (c) Reply brief. Any other party to the proceeding may file a brief 
in reply to the appeal brief within 30 days after the date on which the 
appeal brief was served on that party (except as provided in Sec.  
821.57(b) with respect to emergency proceedings). A copy of the reply 
brief shall simultaneously be served on the appealing party and any 
other parties to the proceeding. The form requirements governing the 
appeal brief set forth in paragraph (b)(1) also apply to the reply 
brief.
    (d) Other filings. Subsequent to the filing of the appeal and reply 
briefs, the parties may file citations to supplemental authorities. 
This procedure may be used only for identifying new and relevant legal 
authority, and not to correct omissions in briefing or to respond to a 
reply brief. No argument may be included with such a filing. Such 
filing shall include a reference to the page of the brief to which the 
cited legal authority pertains. Any response shall be filed within 10 
days of the date of service of the supplemental filing, and shall be 
similarly limited in scope. With these exceptions, the parties may make 
no other submissions, except by leave of the Board, upon on a showing 
of good cause.
    (e) Oral argument. Oral argument before the Board will not be held 
in proceedings under this part unless the Board, on motion of a party 
or on its own initiative, determines that oral argument is needed.


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 or her initial decision or order should be 
changed, the Board may make any necessary findings and may issue an 
order in lieu of the law judge's initial decision or order, or may 
remand the proceeding for any such purpose as the Board may deem 
necessary.


Sec.  821.50  Petition for rehearing, reargument, reconsideration or 
modification of an order of the Board.

    (a) General. Any party to a proceeding may petition the Board for 
rehearing, reargument, reconsideration or modification of a Board order 
on appeal from a law judge's initial decision or order. An initial 
decision or appealable order of a law judge that has become final 
because no timely appeal was taken therefrom may not be the subject of 
a petition under this section.
    (b) Timing and service. The petition must be filed with the Board, 
and simultaneously served on the other parties, within 30 days after 
the date of service of the Board's order on appeal from the law judge's 
initial decision or order.
    (c) Content. The petition shall state briefly and specifically the 
matters of record alleged to have been erroneously decided, and the 
ground or grounds relied upon. If the petition is based, in whole or in 
part, upon new matter, it shall set forth such new matter and shall 
contain affidavits of prospective witnesses, authenticated documents, 
or both, or an explanation of why such substantiation is unavailable, 
and shall explain why such new matter could not have been discovered in 
the exercise of due diligence prior to the date on which the 
evidentiary record closed.
    (d) Repetitious petitions. Repetitious petitions will not be 
entertained by the Board, and will be summarily dismissed.
    (e) Reply to petition. Any other party to the proceeding may file a 
reply to the petition within 15 days after the date on which the 
petition was served on that party. A copy of such reply shall 
simultaneously be served on the petitioner and any other parties to the 
proceeding.
    (f) Stay of effective date of Board's order. The filing of a 
petition under this section shall operate to stay the effective date of 
the Board's order, unless the Board directs otherwise.

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


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 on which written advice of the emergency 
character of the Administrator's order is received and docketed by the 
Board.
    (c) Computation of time. Time shall be computed in accordance with 
the provisions of Sec.  821.10.
    (d) Waiver. Except as provided in Sec.  821.54(f), or where the law 
judge or the Board determines that it would unduly burden another party 
or the

[[Page 22633]]

Board, a certificate holder (respondent) affected by an emergency or 
other immediately effective order of the Administrator may, at any time 
after filing an appeal from such an order, waive the applicability of 
the accelerated time limits of this subpart; however, such a waiver 
shall not serve to lengthen any period of time for doing an act 
prescribed by this subpart which expired before the date on which the 
waiver was made.


Sec.  821.53  Appeal.

    (a) Time within which to file appeal. An appeal from an emergency 
or other immediately effective order of the Administrator must be filed 
within 10 days after the date on which the Administrator's order was 
served on the respondent. The respondent shall simultaneously 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 certificate or certificates affected and indicate 
that an emergency or other immediately effective order of the 
Administrator is being appealed.


Sec.  821.54  Petition for review of Administrator's determination of 
emergency.

    (a) Time within which to file petition. A respondent may, within 2 
days after the date of receipt of an emergency or other immediately 
effective order of the Administrator, file with the Board a petition 
for review of the Administrator's determination that an emergency, 
requiring the order to be effective immediately, exists. This 2-day 
time limit is statutory and the Board has no authority to extend it. If 
the respondent has not previously filed an appeal from the 
Administrator's emergency or other immediately effective order, the 
petition shall also be considered a simultaneously filed appeal from 
the order under Sec.  821.53.
    (b) Form, content and service of petition. The petition may be in 
letter form. A copy of the Administrator's order, from which review of 
the emergency determination is sought, must be attached to the 
petition. If a copy of the order is not attached, the petition will be 
dismissed. While the petition need only request that the Board review 
the Administrator's determination as to the existence of an emergency 
requiring the order be effective immediately, it may also enumerate the 
respondent's reasons for believing that the Administrator's emergency 
determination is not warranted in the interest of aviation safety. The 
petition must be filed with the Board by overnight delivery service or 
facsimile and simultaneously served on the Administrator by the same 
means.
    (c) Reply to petition. If the petition enumerates the respondent's 
reasons for believing that the Administrator's emergency determination 
is unwarranted, the Administrator may, within 2 days after the date of 
service of the petition, file a reply, which shall be strictly limited 
to matters of rebuttal. Such reply must be filed with the Board by 
overnight delivery service or facsimile and simultaneously served on 
the respondent by the same means. No submissions other than the 
respondent's petition and the Administrator's reply in rebuttal will be 
accepted, 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, the law judge may, on his or her 
own initiative, and strictly in keeping with the prohibition on ex 
parte communications set forth in Sec.  821.61, solicit from the 
parties additional information to supplement that previously provided 
by the parties.
    (e) Disposition. Within 5 days after the Board's receipt of the 
petition, the chief law judge (or, if the case has been assigned to a 
law judge, the law judge to whom the case is assigned) shall dispose of 
the petition by written order, and, in so doing, shall consider 
whether, based on the acts and omissions alleged in the Administrator's 
order, and assuming the truth of such factual allegations, the 
Administrator's emergency determination was appropriate under the 
circumstances, in that it supports a finding that aviation safety would 
likely be compromised by a stay of the effectiveness of the order 
during the pendency of the respondent's appeal.
    (f) Effect of law judge's ruling. If the law judge grants the 
petition, the effectiveness of the Administrator's order shall be 
stayed until final disposition of the respondent's appeal by a law 
judge or by the Board. In such cases, the remaining provisions of this 
subpart (Sec. Sec.  821.55-821.57) shall continue to apply, unless the 
respondent, with the Administrator's consent, waives their 
applicability. 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 their applicability is waived by the 
respondent. The law judge's ruling on the petition shall be final, and 
is not appealable to the Board. However, in the event of an appeal to 
the Board from a law judge's decision on the merits of the emergency or 
other immediately effective order, the Board may, at its discretion, 
note, in its order disposing of the appeal, its views on the law 
judge's ruling on the petition, and such views shall serve as binding 
precedent in all future cases.


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

    (a) Complaint. In proceedings governed by this subpart, the 
Administrator's complaint shall be filed by overnight delivery service 
or facsimile, and simultaneously served on the respondent by the same 
means, within 3 days after the date on which the Administrator received 
the respondent's appeal, or within 3 days after the date of service of 
an order disposing of a petition for review of an emergency 
determination, whichever is later.
    (b) Answer to complaint. The respondent shall file with the Board 
an answer to the complaint within 5 days after the date on which the 
complaint was served by the Administrator, and shall simultaneously 
serve a copy of the answer on the Administrator. Failure by the 
respondent to deny the truth of any allegation or allegations in the 
complaint may be deemed an admission of the truth of the allegation or 
allegations not answered. The answer shall also identify any 
affirmative defenses that the respondent intends to raise at the 
hearing.
    (c) Motion to dismiss and motion for more definite statement. In 
proceedings governed by this subpart, no motion to dismiss the 
complaint or for a more definite statement of the complaint's 
allegations 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 proceedings governed by 
this subpart. Given the short time available for discovery, the parties 
shall cooperate to ensure timely completion of the discovery process 
prior to the hearing. Discovery requests shall be served by the parties 
as soon as possible. A motion to compel discovery should be 
expeditiously filed where any dispute arises, and the law judge shall 
promptly rule on such a motion. Time limits for compliance with 
discovery requests shall be set by the parties so as to accommodate, 
and not conflict with, the accelerated adjudication schedule set forth 
in this subpart. The provisions of Sec.  821.19 shall apply, modified 
as

[[Page 22634]]

necessary to meet the exigencies of this subpart's accelerated 
timeframes.


Sec.  821.56  Hearing and initial decision or appealable order of law 
judge.

    (a) Notice of hearing. Within 3 days after the date on which the 
Board receives the Administrator's complaint, 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 
shall be served with a written notice of hearing, setting forth the 
date, time and place of the hearing. The hearing shall be set for a 
date no later than 30 days after the date on which the respondent's 
appeal was received and docketed. To the extent that they are not 
inconsistent with this section, the provisions of Sec.  821.37(a) shall 
also apply.
    (b) Conduct of hearing. The provisions of Sec. Sec.  821.38, 821.39 
and 821.40, concerning the taking of evidence, argument and submissions 
by the parties, and the composition of the hearing record, shall apply 
to proceedings governed by this subpart.
    (c) Initial decision and effect of initial decision or appealable 
order. The law judge's initial decision shall be made orally on the 
record at the termination of the hearing. The provisions of Sec.  
821.42, concerning the content of the initial decision, the furnishing 
of copies of the initial decision to the parties and the issuance date 
of the initial decision, and the provisions of Sec.  821.43, concerning 
the effect of the law judge's initial decision or appealable order and 
any appeal therefrom, shall apply to proceedings governed by this 
subpart.


Sec.  821.57  Procedure on appeal.

    (a) Time within which to file notice of appeal. A party may appeal 
from a law judge's initial decision or appealable order by filing with 
the Board, and simultaneously serving on the other parties, a notice of 
appeal, within 2 days after the date on which the initial decision was 
orally rendered or the appealable order was served. The time 
limitations for the filing of documents respecting appeals governed by 
this subpart will not be extended by reason of the unavailability of 
the hearing transcript.
    (b) Briefs and oral argument. Each appeal in proceedings governed 
by this subpart must be perfected, within 5 days after the date on 
which the notice of appeal was filed, by the filing, and simultaneous 
service on the other parties, of a brief in support of the appeal. Any 
other party to the proceeding may file a brief in reply to the appeal 
brief within 7 days after the date on which the appeal brief was served 
on that party. A copy of the reply brief shall simultaneously be served 
on the appealing party and any other parties to the proceeding. Unless 
otherwise authorized by the Board, all briefs in connection with 
appeals governed by this subpart must be filed and served by overnight 
delivery service, or by facsimile confirmed by personal or first-class 
mail delivery of the original. Aside from the time limits and methods 
of filing and service specifically mandated by this paragraph, the 
provisions of Sec.  821.48 shall apply.
    (c) Issues on appeal. The provisions of Sec.  821.49(a) shall apply 
in proceedings governed by this subpart.
    (d) Petition for rehearing, reargument, reconsideration or 
modification of order. The only petitions for rehearing, reargument, 
reconsideration or modification of an order which the Board will 
entertain in proceedings governed by this subpart are those based on 
the ground that new matter has been discovered. Such petitions must:
    (1) Set forth the new matter;
    (2) Contain affidavits of prospective witnesses, authenticated 
documents, or both, or an explanation of why such substantiation is 
unavailable; and
    (3) Contain a statement explaining why such new matter could not 
have been discovered in the exercise of due diligence prior to the date 
on which the evidentiary record closed.

Subpart J--Ex Parte Communications

    Authority: Sec. 4, Pub. L. 94-409, 5 U.S.C. 556(d) and 557; 49 
U.S.C. 1101-1155, 44701-44723, 46301.


Sec.  821.60  Definitions.

    As used in this subpart:
    Board decisional employee means a Board Member, law judge or other 
employee who is, or who may reasonably be expected to be, involved in 
the decisional process of the proceeding;
    Ex parte communication means an oral or written communication not 
on the public record with respect to which reasonable prior notice to 
all parties is not given, but does not include requests for status 
reports on any matter or proceeding covered by this part.


Sec.  821.61  Prohibited ex parte communications.

    (a) The prohibitions of this section shall apply from the time a 
petition for review or an appeal is filed unless the person responsible 
for the communication has knowledge that a petition for review or an 
appeal will be filed, in which case the prohibitions shall apply at the 
time of the acquisition of such knowledge. Such prohibitions shall 
continue until the time of the Board's final disposition of the 
petition, appeal and any ancillary matters, such as the adjudication of 
a claim for fees and expenses under the Equal Access to Justice Act.
    (b) Except to the extent required for the disposition of ex parte 
matters as authorized by law:
    (1) No interested person outside the Board shall make or knowingly 
cause to be made to any Board decisional employee an ex parte 
communication relevant to the merits of the proceeding;
    (2) No Board decisional employee shall make or knowingly cause to 
be made to any interested person outside the Board an ex parte 
communication relevant to the merits of the proceeding. Ex parte 
communications solely relating to matters of Board procedure or 
practice are not prohibited by this section.


Sec.  821.62  Procedures for handling ex parte communications.

    A Board decisional employee who receives, makes or knowingly causes 
to be made a communication prohibited by Sec.  821.61 shall place in 
the public record of the proceeding:
    (a) All such written communications;
    (b) Memoranda stating the substance of all such oral 
communications; and
    (c) All written responses, and memoranda stating the substance of 
all oral responses, to the communications described in paragraphs (a) 
and (b) of this section.


Sec.  821.63  Requirement to show cause and imposition of sanction.

    (a) Upon receipt of a communication made or knowingly caused to be 
made by a party in violation of Sec.  821.61, the presiding law judge 
(or the chief law judge, if the proceeding has not been assigned to a 
law judge) or the Board may, to the extent consistent with the 
interests of justice and the policy of the underlying statutes it 
administers, require the party to show cause why its claim or interest 
in the proceeding should not be dismissed, denied, disregarded or 
otherwise adversely affected on account of such violation.
    (b) The Board may, to the extent consistent with the interest of 
justice and the policy of the underlying statutes it administers, 
consider a violation of Sec.  821.61 sufficient grounds for a decision 
adverse to a party who has knowingly committed or knowingly caused such 
a violation to occur. Alternatively, the Board may impose a sanction on 
the party's attorney or representative, including suspending or barring 
the attorney or representative

[[Page 22635]]

from practicing before it, where such action would be appropriate and 
penalizing the party represented would not be in the interest of 
justice.

Subpart K--Judicial Review of Board Orders


Sec.  821.64  Judicial review.

    (a) General. Judicial review of a final order of the Board may be 
sought as provided in 49 U.S.C. 1153 and 46110 by the filing of a 
petition for review with the appropriate United States Court of Appeals 
within 60 days of the date of entry (i.e., service date) of the Board's 
order. Under the applicable statutes, any party may appeal the Board's 
decision. The Board is not a party in interest in such appellate 
proceedings and, accordingly, does not typically participate in the 
judicial review of its decisions. In matters appealed by the 
Administrator, the other parties should anticipate the need to make 
their own defense.
    (b) Stay pending judicial review. No request for a stay pending 
judicial review will be entertained if it is received by the Board 
after the effective date of the Board's order (see Sec.  821.50(b)). If 
a stay action is to be timely, any request must be filed sufficiently 
in advance of the effective date of the Board's order to allow for a 
reply and Board review.

    Dated: April 18, 2003.
Ellen G. Engleman,
Chairman.
[FR Doc. 03-10559 Filed 4-28-03; 8:45 am]
BILLING CODE 7533-01-P