[Federal Register Volume 77, Number 200 (Tuesday, October 16, 2012)]
[Rules and Regulations]
[Pages 63245-63253]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-25400]


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NATIONAL TRANSPORTATION SAFETY BOARD

49 CFR Parts 821 and 826

[Docket No. NTSB-GC-2011-0001]


Rules of Practice in Air Safety Proceedings; Rules Implementing 
the Equal Access to Justice Act of 1980

AGENCY: National Transportation Safety Board (NTSB or Board).

ACTION: Final rule.

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SUMMARY: The NTSB amends its regulations which set forth rules of 
procedure for the NTSB's review of certificate actions taken by the 
Federal Aviation Administration (FAA); and its regulations which set 
forth rules of procedure concerning applications for fees and expenses 
under the Equal Access to Justice Act of 1980 (EAJA). The NTSB 
previously issued an advance notice of proposed rulemaking (ANPRM) and 
a notice of proposed rulemaking (NPRM) and has carefully considered 
comments submitted in response to both documents. In a separate interim 
final rule published elsewhere in this issue of the Federal Register, 
the NTSB is implementing regulatory changes as a result of the recently 
enacted Pilot's Bill of Rights.

DATES: This final rule is effective November 15, 2012.

ADDRESSES: A copy of the NPRM, published in the Federal Register (FR), 
is available for inspection and copying in the NTSB's public reading 
room, located at 490 L'Enfant Plaza SW., Washington, DC 20594-2003.

[[Page 63246]]

Alternatively, a copy of the NPRM is available on the government-wide 
Web site on regulations at http://www.regulations.gov (Docket ID Number 
NTSB-GC-2011-0001).

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

SUPPLEMENTARY INFORMATION: 

I. Notice of Proposed Rulemaking

    On February 9, 2012, the NTSB published an NPRM inviting public 
comments concerning the NTSB procedural rules codified at 49 CFR parts 
821 and 826. 77 FR 6760. The NPRM also addressed each of the 20 
relevant comments received in response to the ANPRM, which the NTSB 
published on December 22, 2010. 75 FR 80452. In addition to various 
technical changes, the NTSB proposed in the NPRM changes to various 
regulations to allow for the electronic filing of certain documents; a 
requirement that the FAA provide a copy of the releasable portions of 
its enforcement investigation report (EIR) by the date on which an 
emergency order is issued; a statement that the law judge may consider 
the facts of each case and determine whether to dismiss the case with 
prejudice when the FAA withdraws its complaint; and a statement that 
the law judge will accept evidence in determining whether a case 
warrants emergency status. The NTSB also proposed amendments to 49 CFR 
part 826, governing claims brought under the EAJA, to bring the 
regulations up-to-date and ensure petitioners are aware of the steps 
necessary to obtain fees from the FAA following an order requiring the 
payment of fees.
    Both the ANPRM and NPRM included a discussion of the Board's 
procedure for handling certain aspects of emergency cases. The FAA 
issues emergency orders when it determines the interests of aviation 
safety require that the order take effect immediately, and, in those 
cases, the certificate holder may not exercise certificate privileges 
during the pendency of an appeal with the NTSB. Section 716 of the 
Aviation Investment and Reform Act for the 21st Century (``AIR-21'') 
amended 49 U.S.C. 44709 by granting the NTSB authority to review such 
emergency determinations. Public Law 106-181, section 716 (April 5, 
2000) (codified at 49 U.S.C. 44709(e)(3)). The NTSB's rules governing 
review of the emergency status of a case have been the subject of 
debate in the aviation legal community in the recent past. 
Specifically, Sec.  821.54(e) directs NTSB's law judges to dispose of 
petitions for review of the FAA's emergency determinations by:

    Consider[ing] whether, based on the acts and omissions alleged 
in the [Federal Aviation] 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.

The aspect of the standard relating to the law judges' assumption of 
the truth of the FAA's allegations of fact prompted much feedback.

II. Comments Received on the NPRM and Responses Thereto

    The NTSB received nine comments in response to the NPRM, which are 
available at http://www.regulations.gov (Docket No. NTSB-GC-2011-0001). 
The NTSB carefully considered all comments received in response to the 
NPRM, as well as the preceding ANPRM.\1\ This section contains 
summaries of the NRPM comments. The NTSB's responses to the comments 
are included in the section below entitled ``Changes.''
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    \1\ Comments submitted in response to the ANPRM are also 
available in Docket No. NTSB-GC-2011-0001.
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    The comments primarily address the NTSB's regulations governing 
review of emergency determinations, but also provide feedback 
concerning other NTSB regulations. Most of the comments assert the 
current standard for review of FAA emergency determinations is 
fundamentally unfair because it requires the NTSB's law judges to 
assume the truth of the factual allegations the FAA makes in its 
emergency order. While the NTSB did not propose changing the standard 
of review in the NPRM, it did propose a requirement that the FAA 
provide a copy of the EIR to each respondent in emergency cases at the 
time the FAA issues its emergency order. Following publication of the 
NPRM and the comment period, Congress passed the Pilot's Bill of 
Rights. Pub. L. No. 112-153 (August 3, 2012). The statute requires the 
FAA to release the EIR in each case. Id. section 2(b)(2)(E). As a 
result, the EIR proposal in the NPRM is moot as it now is required by 
statute. Therefore, this final rule will not address the release of the 
EIR, rather the NTSB addresses that requirement in an interim final 
rule in response to the Pilot's Bill of Rights. This interim final rule 
is published elsewhere in this issue of the Federal Register.
    In addition, the NTSB proposed a rule that the law judge may 
consider evidence concerning whether the case warrants emergency status 
when the respondent submits such evidence with his or her petition for 
review of the emergency order. This proposal also prompted much 
discussion from the commenters, as described below.

A. Section 821.54 (Disposition of Petitions for Review of Emergency 
Determinations of the Federal Aviation Administration)

1. Comments Received
    Regarding respondents' challenges to the emergency status of a case 
under section 821.54, the FAA contends the NTSB should not have used a 
drug testing refusal case as an example of a case where the law judge 
granted a respondent's petition regarding the emergency status of the 
case. The FAA's comment asserts the NTSB gave the impression that a 
respondent's opportunity to submit evidence was equivalent to a trial 
on the merits. The comment suggests adding the following sentence at 
the end of Sec.  821.54(b): ``The respondent may include attachments to 
the petition for review (e.g., affidavits, other records) limited to 
evidence the respondent believes supports the reasons enumerated in the 
petition for why the Administrator's emergency determination is not 
warranted in the interest of aviation safety.''
    The Air Line Pilots Association, International (ALPA), also 
submitted a comment concerning the emergency actions. ALPA strongly 
disagrees with the decision to leave the ``assuming the truth'' 
standard of review undisturbed, and proposed adding a requirement that 
law judges must consider evidence a respondent submits in his or her 
challenge to the emergency status of a case. ALPA's comment also states 
the NTSB should consider the amount of time the FAA knew of the alleged 
wrongdoing before issuing an emergency order, as this time period is 
relevant to whether the case is a legitimate emergency.
    Similarly, the Aircraft Owners and Pilots Association (AOPA) 
disagrees with the intent to leave the emergency determination standard 
of review unchanged. AOPA's comment contends Congress, in authorizing 
us to review emergency appeals of aviation certificate actions, 
intended to provide each respondent with a ``substantive review'' of 
the emergency action. AOPA notes it ``remains perplexed as to why the 
NTSB maintains that this type of review does not lend itself to 
evidentiary proof.'' AOPA states it is

[[Page 63247]]

mindful of the time constraints applicable to emergency cases, but 
contends the time limits should not be a reason to ``undermine 
meaningful review'' of the emergency status. AOPA suggests an allowance 
for telephonic presentations and arguments concerning whether the 
emergency status of a case is warranted, and argues the law judges 
should have discretion concerning whether to assume the truth of the 
factual allegations contained in the FAA's emergency orders. AOPA 
agrees with the proposal that law judges may consider evidence a 
respondent submits in challenging an emergency order.
    The National Air Transportation Association (NATA) also commented 
on the NPRM. As with the ANPRM, NATA is in favor of eliminating the 
``assuming the truth'' standard of review concerning the emergency 
status of cases. NATA asserts no statute requires this standard of 
review, nor does any legislative history indicate this standard is 
necessary. NATA contends emergency actions, and deferential review of 
them, are fundamentally unfair, and asserts emergency actions must be 
subject to ``meaningful review'' by an ``impartial and independent 
body.'' NATA suggests the NTSB impose a rebuttable presumption standard 
concerning emergency challenges. In particular, the comment states:

[w]hile NATA strongly believes that the NTSB should create no 
presumption with regard to the FAA's factual allegations, NATA 
believes that a rebuttable presumption standard is the absolute 
minimum review standard necessary to provide to the NTSB at least 
some argument that it is providing due process, appropriate checks 
and balances and the type of meaningful, impartial and independent 
review of FAA's emergency determination that Congress intended.

NATA asserts the requirement to defer to the FAA's interpretation of 
the Federal Aviation Regulations (as required by 49 U.S.C. 
44709(d)(3)),\2\ combined with the ``assuming the truth'' standard, 
results in too much deference to the FAA. NATA also believes the law 
judges would not grant a challenge to the FAA's emergency action even 
when the respondent presents evidence indicating the factual 
allegations are not true, as a result of the deferential standard of 
review.
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    \2\ The Pilot's Bill of Rights removes the requirement that the 
Board defer to the FAA's interpretation of the Federal Aviation 
Regulations.
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    The National Business Aviation Association (NBAA) submitted a 
comment identical to that of NATA.
    The Aeronautical Repair Station Association (ARSA) also submitted a 
comment expressing disagreement with the intent not to remove the 
``assuming the truth'' standard of review applicable to emergency 
cases. ARSA contends the FAA's authority to issue an emergency order 
remains unchecked, and the ``assuming the truth'' standard 
``effectively swallows the rule'' because it renders review of 
petitions challenging emergency status meaningless. ARSA asserts an 
emergency order should be used sparingly, because the effect of such an 
order is severe.
    Carstens and Cahoon, LLP, submitted a brief comment concurring with 
the proposal to retain the ``assuming the truth'' standard, as it is 
``in full accord with 49 U.S.C. 44709(e).'' The commenter also agrees 
with the proposed rule to permit respondents to present evidence 
challenging the emergency nature of the case, as this proposal 
``provides both sides with fairness and justice for the purpose of the 
limited review by the law judge of the FAA's emergency determination.''
    The Transport Workers Union of America (TWU) commented concerning 
the standard of review of the emergency status of cases. TWU 
acknowledges the need for some deference to the FAA's factual 
allegations, given the fact that a challenge concerning the emergency 
status is limited in scope and cannot consist of litigating the merits 
of the case. As with its response to the ANPRM, TWU again suggests 
adoption of a less deferential standard of review than the current 
``assuming the truth'' standard. TWU analogizes its proposed review of 
FAA emergency cases to Federal courts' review of temporary restraining 
orders or preliminary injunctionsto require the FAA to show a 
substantial likelihood of success on the merits.\3\ TWU notes other 
Federal agencies apply this ``substantial likelihood of success'' 
standard when determining whether to grant a stay of a case.\4\
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    \3\ As TWU notes in its comment, review of a ``traditional 
stay'' consists of a four-part test: (1) Likelihood that the party 
seeking action would prevail on the merits to any challenge sought; 
(2) the aggrieved party would suffer irreparable harm in the absence 
of a stay; (3) other interested parties would not be substantially 
harmed by a stay; and (4) the public interest supports the granting 
of a stay. Washington Metro Area Transit Comm'n v. Holiday Tours, 
Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). TWU's comment also cited a 
Surface Transportation Board decision for this standard: Eighteen 
Thirty Group LLC--Acquisition Exemption--in Allegheny County, MD, 
STB FD 35438, 2010 WL 4639505.
    \4\ TWU cited a Surface Transportation Board (STB) case, 
Eighteen Thirty Group LLC--Acquisition Exemption in Allegheny 
County, MD, STB FD 35438, 2010 WL 4639505, in which the STB 
determined whether to grant a motion to stay their decision. TWU's 
comment also included citations to two cases from the District of 
Columbia Court of Appeals that addressed organizations' petitions to 
agencies for injunctions.
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    The Aviation Law Firm submitted a comment discussing the proposed 
changes regarding emergency cases. The commenter recommends the NTSB 
change the permissive language of ``should permit evidence, if 
appropriate'' within Sec.  821.54(e) to say ``shall permit evidence.'' 
The Aviation Law Firm contends such a change would provide sufficient 
clarity that law judges will consider evidence a petitioner submits.
    The FAA Whistleblowers Alliance submitted a brief comment stating 
the FAA misuses its authority to issue emergency orders. The comment 
indicates the organization agrees with this rulemaking activity 
concerning review of emergency orders.
2. Changes
    The NTSB carefully reviewed all comments regarding procedures 
applicable to emergency cases. As indicated above, the FAA is 
authorized, under 49 U.S.C. 44709(e)(2), to issue orders amending, 
modifying, suspending, or revoking certificates issued on an 
``emergency'' basis. In 2000, AIR-21 amended 49 U.S.C. 44709 to grant 
the NTSB authority to review such emergency determinations. In 
particular, section 44709(e)(3) and (4) states:

    (3) Review of emergency order.--A person affected by the 
immediate effectiveness of the Administrator's order under paragraph 
(2) may petition for a review by the Board, under procedures 
promulgated by the Board, of the Administrator's determination that 
an emergency exists. Any such review shall be requested not later 
than 48 hours after the order is received by the person. If the 
Board finds that an emergency does not exist that requires the 
immediate application of the order in the interest of safety in air 
commerce or air transportation, the order shall be stayed, 
notwithstanding paragraph (2). The Board shall dispose of a review 
request under this paragraph not later than 5 days after the date on 
which the request is filed.
    (4) Final disposition.--The Board shall make a final disposition 
of an appeal under subsection (d) not later than 60 days after the 
date on which the appeal is filed.

    In order to implement these statutory provisions, on July 11, 2000, 
the NTSB published an interim rule with a request for comments. 65 FR 
42637. This interim rule amended 49 CFR part 821 by providing NTSB's 
law judges with the authority to issue orders affirming or denying the 
FAA's emergency determination under 49 U.S.C. 44709(e). The interim 
rule directed NTSB law judges to determine whether the

[[Page 63248]]

Administrator abused his or her discretion in finding an emergency 
existed under the facts alleged in the Administrator's order. The NTSB 
assumed the facts to be true for the limited purpose of reviewing the 
emergency determination. The NTSB incorporated the abuse of discretion 
standard of review that had been set forth in Nevada Airlines v. Bond, 
622 F.2d 1017 (9th Cir. 1980).\5\ Courts have since upheld the 
``arbitrary and capricious, an abuse of discretion, or otherwise not in 
accordance with law'' standard in other cases. See Ickes v. FAA, 299 
F.3d 260 (3d Cir. 2002) (citing Blackman v. Busey, 938 F.2d 659, 663 
(6th Cir. 1991)); Armstrong v. FAA, 515 F.3d 1294 (D.C. Cir. 2008).
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    \5\ In Nevada Airlines, the Ninth Circuit stated as follows 
concerning review of the emergency status of cases: ``[w]ithout an 
administrative record or agency hearing at this stage of the 
proceedings and in light of the Administrator's broad discretion, we 
limit our review to determining whether the Administrator's finding 
of an emergency was arbitrary and capricious, an abuse of 
discretion, or otherwise not in accordance with law.'' Id. at 1020.
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    On April 29, 2003, the NTSB published the final rule altering the 
standard of review for emergency determinations. 58 FR 22623. Since 
2003, Sec.  821.54(e) has provided:

[w]ithin 5 days after the Board's receipt of [a petition for review 
of the FAA's emergency determination], the * * * law judge * * * 
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.

This standard, therefore, was a departure from the more stringent 
standard the courts affirmed.
    In the 2010 ANPRM, the NTSB revisited this standard of review, 
requesting comments. 75 FR 80452-01 (Dec. 22, 2010). In the ANPRM, the 
NTSB reminded parties Sec.  821.54(e) does not explicitly state the 
allegations of the FAA's complaint are ``deemed true,'' but instead 
uses the word ``assum[ed].'' The NTSB modeled this language after 
subsection (b) of the Board's Stale Complaint Rule, codified at 49 CFR 
821.33.
    In the 2012 NPRM, the NTSB did not propose changing this ``assuming 
the truth'' standard of review. The NTSB concluded that a challenge to 
an emergency determination should not be an opportunity to contest the 
factual allegations underlying the certificate action. This 
determination simply is the result of the statutory time constraints 
applicable to emergency cases.
    If the NTSB held a hearing for every petition challenging the 
emergency status of a case, it could not fulfill its obligation to rule 
on the merits of the case within the statutorily required 60-day time 
frame. A commenter's suggestion to utilize telephonic hearings for 
emergency cases demonstrates an understanding of this predicament. The 
NTSB carefully considered alternatives to the ``assuming the truth'' 
standard, especially in light of the comments received in response to 
both the ANPRM and the NPRM, and determined it simply cannot issue a 
ruling on a petition challenging the emergency status of a case within 
5 days if the NTSB holds a hearing.
    The NTSB currently does not have the resources to hold hearings on 
petitions contesting emergency determinations, given the expedited time 
frame. Scheduling a time in which the parties are available to 
participate in a hearing, securing a space for the hearing, and 
ensuring a law judge is available for the hearing, would all be 
difficult to accomplish within 5 days. These considerations are only 
applicable to the scheduling of the hearing. Issuing a well-reasoned 
decision following the receipt of evidence and testimony from a hearing 
would require additional time.
    Moreover, the NTSB only has four administrative law judges, all of 
whom are responsible for holding hearings across all 50 states, the 
District of Columbia, and Puerto Rico. Consistent with Sec.  821.37(a), 
the NTSB holds hearings at the most convenient locations for the 
parties. The NTSB generally refrains from conducting telephonic 
hearings at which the NTSB's law judges must make factual 
determinations, because the law judges' ability to assess the 
credibility of witnesses at such hearings is greatly diminished.
    Additionally, the four-prong standard applicable to preliminary 
injunctions or temporary restraining orders is similar to the manner in 
which NTSB law judges currently handle emergency challenges. By policy, 
the FAA attaches to each emergency order a document outlining the 
reason the FAA believes emergency treatment of the case is necessary. 
Under the Pilot's Bill of Rights, the FAA is now required to also 
provide a copy of releasable portions of the EIR to each respondent. In 
the document providing the FAA's justification for pursuing the case as 
an emergency, the FAA articulates the public interest at stake, which 
is akin to a showing of how irreparable harm would ensue if it could 
not proceed with the case as an emergency. The FAA's statement also 
contains a factual summary as to why the FAA would prevail on the 
merits, and why the FAA believes the public interest supports 
proceeding under our emergency rules. Federal courts, in applying the 
four-part preliminary injunction or temporary stay standard, must weigh 
the facts in a similar manner. For example, in such cases, they do not 
have time for a trial on the merits of the case wherein they apply a 
preponderance of the evidence standard. Instead, the courts must weigh 
the facts in favor of the party seeking action in analyzing the four 
prongs to determine whether short-term, immediate legal action is 
appropriate. The NTSB law judges' review of emergency challenges is 
similar to this analysis.
    For the reasons set forth above, the NTSB retains the ``assuming 
the truth'' standard of review in Sec.  821.54(e). However, the NTSB 
will also consider this analysis anew in light of any petition for 
rulemaking, that includes novel suggestions or points not previously 
articulated.
    Finally, the NTSB adopts the suggestion from the Aviation Law Firm, 
recommending a change in the language of Sec.  821.54(e) to state the 
law judge ``shall'' consider evidence a respondent submits in 
challenging the FAA's decision to proceed with a case as an emergency. 
The NTSB also adds the phrase ``if appropriate'' to the sentence, to 
ensure parties are aware the law judge ultimately makes the 
determination as to whether the evidence the respondent submits is 
relevant to the emergency determination. Therefore, this portion of 
Sec.  821.54(e) will now read, ``* * * the law judge is not so limited 
to the order's factual allegations themselves, but also shall permit 
evidence, if appropriate, pertaining to the propriety of the emergency 
determination * * *.''

B. Electronic Filing of Documents

1. Comments Received
    Several parties commented on the proposed changes to allow for 
electronic submission of documents. All commenters generally concur 
with permitting electronic submission. AOPA agrees with the move toward 
an electronic filing system by accepting documents via electronic mail, 
and stated it also agrees with the proposal to continue receiving 
documents by facsimile or postal mail, as not all respondents may have 
access to electronic mail. NBAA and NATA, however, both suggest 
creation of an electronic docketing system, such as the

[[Page 63249]]

Federal courts' Public Access to Court Electronic Records (PACER) 
system. They indicate electronic docketing would provide for the 
timeliest and most efficient means of allowing parties to receive 
documents, and therefore provide a ``level playing field'' for both 
parties. ALPA's comment states it agrees with the proposed changes to 
allow for electronic submission of documents.
    The Aviation Law Firm suggests an allowance for electronic 
submission of documents in emergency cases. Therefore, it proposes an 
amendment to Sec.  821.54(b), to provide a respondent challenging the 
emergency status of an emergency order to file his or her petition via 
electronic mail.
    The FAA also agrees with the proposal to allow for electronic 
submission of documents, and offered several suggestions. With regard 
to Sec.  821.7, the FAA suggests adding the following sentence to 
subsections (a)(1) and (a)(2) of the regulation, to simplify it: 
``Paragraph (3) provides the acceptable methods for filing documents 
under this provision.'' As for subsection (a)(3), the FAA suggests the 
NTSB not adopt the proposed rule stating, ``Documents filed by 
electronic mail must be signed and transmitted in a commonly accepted 
format, such as Adobe Portable Document Format (PDF),'' and instead 
adopt the following language: ``Documents filed by electronic mail must 
be signed and transmitted in accordance with the procedures established 
by the Board for accepting electronically filed documents, which can be 
found at [reference Web site where procedures can be found].'' The FAA 
suggests this amendment to provide the NTSB with flexibility in the 
future to alter the procedures as technology changes. The FAA's comment 
states that if the NTSB adopts this approach, the language in Sec.  
821.52 could be changed to clarify whether parties may submit documents 
in emergency cases via electronic mail.
    The FAA also suggests clarification as to whether parties must file 
the ``originally signed document'' in addition to the copy received via 
facsimile or electronic mail. The FAA states, ``[a]s currently drafted, 
it appears that no hard copy needs to follow if a document is filed by 
facsimile or email.'' The FAA suggests requiring a hard copy submission 
in addition to facsimile or electronic mail submission, to ``ensure the 
NTSB is aware of the filing and that technical glitches do not 
undermine an otherwise timely and intended filing.'' The FAA also 
recommends establishing an automatic receipt to be transmitted in 
response to electronic mail filings.
    With regard to the proposed change to Sec.  821.8(b), which would 
require a party serve any other party by any method prescribed in Sec.  
821.7(a)(3), and allow a party the option of receiving service via 
electronic mail only, the FAA recommends clarifying this section by 
stating whether parties must also serve a hard copy of the document. 
The FAA states the reference to Sec.  821.7(a)(3) creates this 
ambiguity. In response, the FAA recommends explicitly requiring, ``as a 
general matter,'' that any party serving a document by electronic mail 
or facsimile also serve a hard copy, to ensure the other party receives 
the document.
    Finally, the FAA, like the Aviation Law Firm, questions why service 
via electronic mail is not permitted for emergency cases. The FAA 
recommends allowing electronic service of documents in the initial 
proceedings before the law judges. Several other commenters also 
recommend allowing electronic submission of documents in emergency 
cases.
2. Changes
    As stated above, all commenters approve of the concept of 
permitting electronic filing in emergency cases. Given the time 
constraints applicable to emergency cases, the NTSB has determined 
adopting such a requirement would be advantageous to all parties. For 
this reason, the NTSB herein adopts the requirement for emergency cases 
as well as cases that proceed on the normal case disposition timeline. 
This change involves deleting references to expedited filing in Sec.  s 
821.54(b) and (c), and 821.57(b). Additionally, the change requires 
adding a new subsection within Sec.  821.52 to clarify electronic 
submission of documents is permissible in emergency cases.
    The NTSB has determined the FAA's suggestion to provide a reference 
to the NTSB public Web site for a listing of procedures for electronic 
filing is advantageous. Such an approach will provide the NTSB with the 
flexibility to accommodate technological changes. In addition, listing 
procedures on the NTSB public Web site will be helpful as the NTSB 
seeks to design, build and utilize a robust electronic docketing system 
for enforcement cases. As a result, the NTSB adopts this change, and 
notes these procedures will be available on the NTSB Web site after 
publication of this final rule, but before its effective date.
    Finally, the NTSB intends to provide in its online electronic 
filing procedures additional clarifications concerning Sec.  
821.8(d)(3), in which the following language was proposed: ``[We will 
presume lawful service] when a document is transmitted by facsimile or 
electronic mail and there is evidence to confirm its successful 
transmission to the intended recipient.'' By this change, the NTSB 
encourages parties filing via electronic mail to keep a copy of the 
transmission from their ``sent mail'' file. With an electronic 
docketing system, the NTSB may have the ability in the future to 
provide a fill-able electronic Web page that automatically generates an 
electronic ``receipt'' for documents.
    Some commenters urge the NTSB to implement a robust electronic 
docketing system, such as the Federal courts' PACER system. The NTSB is 
currently in the process of gathering requirements and working with a 
contractor to design a system for the NTSB's docketing and electronic 
filing needs. The NTSB intends to develop and implement such a 
docketing system; however, this process may take some time, due to 
resource and fiscal constraints.

C. Rules Concerning the EAJA (49 CFR part 826)

1. Comments Received
    Several commenters address the proposed change to Sec.  821.12(b), 
which addressed the FAA's voluntary withdrawal of a complaint. The 
proposed language stated: ``The law judge may accept arguments from the 
parties on the issue of whether a dismissal resulting from the 
withdrawal of a complaint should be deemed to occur with or without 
prejudice.'' As explained in the preamble of the NPRM, the issue of 
dismissal with or without prejudice is directly relevant to whether a 
party has achieved ``prevailing party'' status under the EAJA.
    Some commenters, such as NATA and NBAA, indicate they have ``no 
objection'' to the proposed change in Sec.  821.12(b). The Aviation Law 
Firm suggests changing the word ``may'' to ``shall,'' to require law 
judges to accept arguments on the issue of dismissal with or without 
prejudice. The comment from the Aviation Law Firm includes a summary of 
recent cases concerning the EAJA. In particular, in the case of Green 
Aviation Management Co., LLC v. Federal Aviation Administration, 676 
F.3d 200 (DC Cir. 2012), the DC Circuit indicated the with-or-without-
prejudice prong of the three-prong test articulated in District of 
Columbia v. Straus, 590 F.3d 898 (DC Cir. 2010), is indeed an important 
consideration. In Green, the District of Columbia Circuit Court of 
Appeals held the applicant was the prevailing party because the law 
judge dismissed the

[[Page 63250]]

complaint with prejudice. Green, 676 F.3d at 204-205. Because this 
prong is such an important consideration, the Aviation Law Firm 
suggests the NTSB rules state law judges ``shall'' consider arguments 
concerning whether they should dismiss a case with prejudice when the 
FAA withdraws the complaint.
    The FAA's comment states the proposed addition to Sec.  821.12(b) 
lacks clarity, because the rule also states the law judge's approval is 
not necessary ``in the case of a petition for review, an appeal to the 
Board, a complaint, or an appeal from the law judge's initial decision 
or appealable order.'' Therefore, the FAA indicates the proposed change 
implies approval from a law judge is necessary to allow the FAA to 
withdraw a complaint. The FAA's comment suggests if this implication is 
correct, then the NTSB should specify ``such withdrawal must be by 
motion of the party.'' The FAA suggests the following concerning such a 
motion: (1) The motion state why the moving party is requesting 
withdrawal; (2) the motion state whether the moving party is requesting 
dismissal with prejudice; and (3) the motion state whether the non-
moving party consents to the motion. The FAA also suggests stating that 
the law judges will summarily grant uncontested motions to withdraw 
without prejudice.
    The FAA also suggests a change to part 826. The comment recommends 
changing the formula in Sec.  826.6(b)(1) to the following: X/$125 per 
hour = CPI--NEW/CPI--1996. The FAA states the formula in the current 
rule is outdated and results in a higher cap on fees.
    AOPA agrees with the proposed change to Sec.  821.12(b). AOPA's 
comment, however, addresses a different aspect of the EAJA: the time 
for which an EAJA applicant may recover fees. With an extensive amount 
of research cited in its comment, AOPA contends the NTSB should allow 
an applicant to petition for fees and expenses incurred prior to the 
commencement of the applicant's appeal. AOPA states applicants and 
their representatives often expend time and resources in preparation 
for a defense prior to filing an appeal.
2. Changes
    The majority of the comments regarding the EAJA focused on Sec.  
821.12(b), involving dismissal of the complaint with or without 
prejudice. As stated in the NPRM, this issue is a critical 
consideration in determining whether a party is the ``prevailing 
party'' for purposes of the EAJA. The NTSB understands the comment from 
the Aviation Law Firm, wherein it suggests inclusion of the word 
``shall,'' to require the law judges to consider parties' arguments 
concerning whether to dismiss a case with prejudice. The NTSB initially 
chose to include the word ``may'' in the proposed language to 
acknowledge parties were not required to make such arguments. If 
parties are silent on the issue, then the law judges would not consider 
such arguments. The NTSB does not want to penalize parties who do not 
present any arguments on the issue of whether the law judge should 
dismiss with prejudice. As a result, the NTSB amends the proposed 
language to include the word ``shall,'' in conjunction with the phrase, 
``if offered.''
    The FAA's comment on the issue of dismissal with prejudice was 
helpful. The NTSB believes the clearest way to address the issue of 
dismissal with prejudice is to require a motion to dismiss in light of 
the FAA's withdrawal of a complaint. As a result, the NTSB changes the 
language in Sec.  821.12(b) to require dismissals based on withdrawals 
of complaints to occur only on oral or written motion.
    The FAA's comment also recommends updating the formula for the 
calculation of the cap on the maximum hourly rate for attorney's fees 
under the EAJA, found at 49 CFR 826.6(b)(1). The NTSB did not propose 
such a change or solicit comments concerning this calculation in either 
the ANPRM or the NPRM. As a result, the NTSB declines to consider this 
change in the current rulemaking.
    Likewise, AOPA submitted a comment urging the NTSB to change the 
EAJA rules to allow a respondent to recover fees from the time he or 
she begins preparing the defense (i.e., once the respondent becomes 
aware of the investigation). As with the FAA's suggestion regarding the 
calculation for the cap of fees under the EAJA, the NTSB did not 
propose a change or solicit comments regarding when to permit recovery 
of fees to commence. As a result, the NTSB declines to consider this 
change in the current rulemaking.
    If the FAA, AOPA, or any other commenter wishes the NTSB to 
consider making changes to these rules under the EAJA, they may 
petition for a new rulemaking.

D. Miscellaneous Technical Changes

1. Comments Received
    The majority of the comments concur with the miscellaneous 
technical changes. The FAA provided several suggested changes to the 
proposed language in this category. Concerning Sec.  821.8(d) (entitled 
``service of documents''), the NTSB proposed to add a new subsection 
(3), to presume lawful service ``[w]hen a document is transmitted by 
facsimile or electronic mail and there is evidence to confirm its 
successful transmission to the intended recipient.''
    With regard to Sec.  821.64(b) (entitled ``judicial review''), the 
NTSB proposed adding the following language: ``[n]o request for a stay 
pending judicial review will be entertained unless it is served on the 
Board within 20 days after the date of service of the Board's order. 
The Administrator may, within 2 days after the date of service of such 
a motion, file a reply thereto.'' The FAA's comment notes the NTSB 
based this change on the incorrect presumption that only a respondent 
would seek a stay. The FAA contends there may be times when the FAA 
needs to file a motion for a stay, and therefore recommends adopting 
party-neutral language in the rule (such as ``moving party'' and ``non-
moving party''). The FAA also believes it is unreasonable to allow the 
non-moving party only 2 days to file a reply to the motion for stay, 
when the moving party has 20 days. In this regard, the FAA suggests 
permitting the moving party 10 days from the date of service of the 
Board's order to file a motion for stay, and allow the non-moving party 
10 days to submit a reply to the motion.
2. Changes
    In response to the FAA's suggestions regarding motions for stays, 
the NTSB herein amends the language in 821.64(b) to ensure it is party-
neutral. The FAA also suggests altering the timeframe to allow the 
moving party 10 days to file a motion for stay, and the non-moving 
party an additional 10 days to reply to the motion. The NTSB considered 
this suggestion, and believes the most reasonable and fair filing 
timeframe is as follows: a party may file a motion for stay within 15 
days of the date of service of the Board's order, and the non-moving 
party may reply to the motion within 5 days of the date of service of 
the motion for stay. The NTSB adopts this change, as it will ensure the 
NTSB does not encounter a situation in which a party files a motion for 
stay on the 29th day following service of the Board's order, but still 
provides sufficient time for a party to submit the motion. Likewise, 
the NTSB believes a 5-day timeframe to reply following service of the 
motion is reasonable.
    Finally, ARSA suggests an alteration to the language in the stale 
complaint rule (codified at 49 CFR 821.33), to shift

[[Page 63251]]

the burden to the FAA in response to a respondent's motion to dismiss 
based on the stale complaint rule. Specifically, ARSA suggests changing 
the rule to require the FAA to reply within 15 days of a motion to 
dismiss based on the stale complaint rule, and to require the reply 
show good cause existed for the FAA's delay, or that public interest 
warrants imposition of the sanction, notwithstanding the delay. The 
NTSB did not propose a change or request comments concerning the stale 
complaint rule. Therefore, as indicated above, the NTSB will not 
attempt to issue such a change herein.
    For the foregoing reasons, the NTSB finalizes the language of 49 
CFR parts 821 and 826 as set forth below.

III. Regulatory Analyses

    In the NPRM, the NTSB included a regulatory analyses section 
concerning various Executive Orders and statutory provisions. The NTSB 
did not receive any comments concerning the results of these analyses. 
The NTSB again notes the following concerning such Executive Orders and 
statutory provisions.
    This final rule is not a significant regulatory action under 
Executive Order 12866. Therefore, Executive Order 12866 does not 
require a Regulatory Assessment. As such, the Office of Management and 
Budget (OMB) has not reviewed this proposed rule under Executive Order 
12866. In addition, on July 11, 2011, the President issued Executive 
Order 13579, ``Regulation and Independent Regulatory Agencies,'' 76 FR 
41587, July 14, 2011). Section 2(a) of the Executive Order states:

    Independent regulatory agencies ``should consider how best to 
promote retrospective analysis of rules that may be outmoded, 
ineffective, insufficient, or excessively burdensome, and to modify, 
streamline, expand, or repeal them in accordance with what has been 
learned.''

76 FR at 41587.
    Consistent with Executive Order 13579, the NTSB's amendments to 49 
CFR parts 821 and 826 reflect its judgment that these rules should be 
updated and streamlined.
    This rule does not require an analysis under the Unfunded Mandates 
Reform Act, 2 United States Code (U.S.C.) 1501-1571, or the National 
Environmental Policy Act, 42 U.S.C. 4321-4347.
    As stated in the NPRM, the NTSB has also analyzed these amendments 
in accordance with the principles and criteria contained in Executive 
Order 13132. Any rulemaking proposal resulting from this notice would 
not propose any regulations that would: (1) Have a substantial direct 
effect on the states, the relationship between the national government 
and the states, or the distribution of power and responsibilities among 
the various levels of government; (2) impose substantial direct 
compliance costs on state and local governments; or (3) preempt state 
law. Therefore, the consultation and funding requirements of Executive 
Order 13132 do not apply.
    The NTSB is also aware that the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.) requires each agency to review its rulemaking to 
assess the potential impact on small entities, unless the agency 
determines that a rule is not expected to have a significant economic 
impact on a substantial number of small entities. The NTSB certifies 
this final rule will not have a significant economic impact on a 
substantial number of small entities.
    Regarding other Executive Orders and statutory provisions, this 
final rule also complies with all applicable standards in sections 3(a) 
and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden. In addition, the 
NTSB has evaluated this rule under: Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights; Executive Order 13045, Protection of Children from 
Environmental Health Risks and Safety Risks; Executive Order 13175, 
Consultation and Coordination with Indian Tribal Governments; Executive 
Order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use; and the National Technology 
Transfer and Advancement Act, 15 U.S.C. 272 note. The NTSB has 
concluded that this rule does not contravene any of the requirements 
set forth in these Executive Orders or statutes, nor does this rule 
prompt further consideration with regard to such requirements.

List of Subjects

49 CFR Part 821

    Administrative practice and procedure, Airmen, Aviation safety.

49 CFR Part 826

    Claims, Equal access to justice, Lawyers.

    For the reasons discussed in the preamble, the NTSB amends 49 CFR 
parts 821 and 826 as follows:

PART 821--RULES OF PRACTICE IN AIR SAFETY PROCEEDINGS

0
1. The authority citation for 49 CFR part 821 is revised to read as 
follows:

    Authority: 49 U.S.C. 1101-1155, 44701-44723, 46301, Pub. L. 112-
153, unless otherwise noted.


0
2. In Sec.  821.6, revise paragraphs (b) and (d) to read as follows:


Sec.  821.6  Appearances and rights of witnesses.

* * * * *
    (b) Any person appearing 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.
* * * * *
    (d) Any party to a proceeding who is represented by an attorney or 
representative shall, in a separate written document, notify the Board 
of the name, address and telephone number of that attorney or 
representative. In the event of a change in representation or a 
withdrawal of representation, the party shall immediately, in a 
separate written document, 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. Parties, and their attorneys and 
representatives, must notify the Board immediately of any changes in 
their contact information.


0
3. In Sec.  821.7, revise paragraphs (a), (e), and (f) to read as 
follows:


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., 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. Paragraph (a)(3) of this section provides the acceptable 
methods for filing documents under this provision.
    (2) Subsequent to the filing of a notice of appeal with the Office 
of Administrative Law Judges from a law judge's initial decision or 
appealable order, the issuance of a decision permitting an 
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., Washington, DC 20594. Paragraph (a)(3)

[[Page 63252]]

of this section provides the acceptable methods for filing documents 
under this provision.
    (3) Documents shall be filed: By personal delivery, by U.S. Postal 
Service first-class mail, by overnight delivery service, by facsimile 
or by electronic mail as specified on the ``Administrative Law Judges'' 
Web page on the NTSB's public Web site. Documents filed by electronic 
mail must be signed and transmitted as specified on the 
``Administrative Law Judges'' Web page on the NTSB's public Web site.
    (4) Documents shall be deemed filed on the date of personal 
delivery; on the send date shown on the facsimile or the item of 
electronic mail; 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.
* * * * *
    (e) Subscription. The original of every document filed shall be 
signed by the filing party, or by that party's attorney or 
representative.
    (f) Designation of person to receive service. The initial document 
filed by a party in a proceeding governed by this part, and any 
subsequent document advising the Board of any representation or change 
in representation of a party that is filed pursuant to Sec.  821.6(d), 
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.
* * * * *


0
4. In Sec.  821.8, revise paragraphs (a), (b)(1), (c), (d), and (e) to 
read as follows:


Sec.  821.8  Service of documents.

    (a) Who must be served. (1) Copies of all documents filed with the 
Board must be simultaneously 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, electronic 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 any method prescribed in Sec.  821.7(a)(3) for the 
filing of documents with the Board. A party may waive the applicability 
of this paragraph, and elect to be served with documents by the other 
parties to the proceeding solely by electronic mail, by filing a 
written document with the Board (with copies to the other parties) 
expressly stating such a preference.
* * * * *
    (c) Where service shall be made. Except for electronic mail, 
personal service, parties shall be served at the address appearing in 
the official record, which the Board must receive under Sec. Sec.  
821.6(d) and 821.7(f). 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);
    (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; or
    (3) When a document is transmitted by facsimile or electronic mail 
and there is evidence to confirm its successful transmission to the 
intended recipient.
    (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).

0
5. In Sec.  821.12, revise paragraph (b) to read as follows:


Sec.  821.12  Amendment and withdrawal of pleadings.

* * * * *
    (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. The law judge may dismiss 
the case after receiving a motion to dismiss based on withdrawal of the 
complaint. The law judge shall accept arguments or motions, oral or 
written, from the parties, if offered, on the issue of whether a 
dismissal resulting from the withdrawal of a complaint should be deemed 
to occur with or without prejudice.

0
6. In Sec.  821.35, revise paragraph (b)(10) to read as follows:


Sec.  821.35  Assignment, duties and powers.

* * * * *
    (b) * * *
    (10) To issue initial decisions and dispositional orders.
* * * * *

0
7. In Sec.  821.50, revise paragraph (c) to read as follows:


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

* * * * *
    (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. To the extent the petition is not based upon 
new matter, the Board will not consider arguments that could have been 
made in the appeal or reply briefs received prior to the Board's 
decision.
* * * * *

0
8. In Sec.  821.52, add paragraph (e) to read as follows:


Sec.  821.52  General.

* * * * *
    (e) Acceptable methods of filing and service. All documents 
submitted by a party in a proceeding governed by this subpart must be 
filed with the Board by overnight delivery, facsimile or electronic 
mail, and simultaneously served on all other parties by the same means. 
If filing by electronic mail, parties must adhere to the requirements 
in Sec.  821.7(a)(3).

0
9. In Sec.  821.54, paragraphs (b), (c), and (e) to read as follows:


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

* * * * *

[[Page 63253]]

    (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 
respondent may include attachments to the petition for review (e.g., 
affidavits, other documents or records) limited to evidence the 
respondent believes supports the reasons enumerated in the petition for 
why the Administrator's emergency determination is not warranted in the 
interest of aviation safety.
    (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. 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.
* * * * *
    (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 other than the chief 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. In making this determination, however, the law judge is not so 
limited to the order's factual allegations themselves, but also shall 
permit evidence, if appropriate, pertaining to the propriety of the 
emergency determination, presented by the respondent with the petition 
and the Administrator with the reply to the petition. This evidence can 
include affidavits or other such records.
* * * * *

0
10. In Sec.  821.55, revise paragraph (a) to read as follows:


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 and simultaneously served on 
the respondent 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.
* * * * *

0
11. In Sec.  821.57, revise paragraphs (b) and (c) to read as follows:


Sec.  821.57  Procedure on appeal.

* * * * *
    (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. Aside 
from the time limits specifically mandated by this paragraph, the 
provisions of Sec. Sec.  821.7(a)(3) and 821.48 shall apply.
    (c) Issues on appeal. The provisions of Sec.  821.49(a) and (b) 
shall apply in proceedings governed by this subpart.
* * * * *

0
12. In Sec.  821.64, revise paragraph (b) to read as follows:


Sec.  821.64  Judicial Review.

* * * * *
    (b) Stay pending judicial review. No request for a stay pending 
judicial review will be entertained unless it is served on the Board 
within 15 days after the date of service of the Board's order. The non-
moving party may, within 5 days after the date of service of such a 
motion, file a reply thereto.

PART 826--RULES IMPLEMENTING THE EQUAL ACCESS TO JUSTICE ACT OF 
1980

0
13. The authority citation for 49 CFR part 826 continues read as 
follows:

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

0
14. Revise Sec.  826.1 to read as follows:


Sec.  826.1  Purpose of these rules.

    The Equal Access to Justice Act, 5 U.S.C. 504 (the Act), provides 
for the award of attorney fees and other expenses to eligible 
individuals and entities who are parties to certain administrative 
proceedings (adversary adjudications) before the National 
Transportation Safety Board. An eligible party may receive an award 
when it prevails over the Federal Aviation Administration (FAA), unless 
the FAA's position in the proceeding was substantially justified or 
special circumstances make an award unjust. The rules in this part 
describe the parties eligible for awards and the proceedings that are 
covered. They also explain how to apply for awards, and the procedures 
and standards this Board will use to make them. As used hereinafter, 
the term ``Administrator'' refers to the Administrator of the FAA.

0
15. Revise Sec.  826.40 to read as follows:


Sec.  826.40  Payment of award.

    Within 5 days of the Board's service of a final decision granting 
an award of fees and expenses to an applicant, the Administrator shall 
transmit to the applicant instructions explaining how the applicant may 
obtain the award. These instructions may require, but are not limited 
to, the submission of the following information to the Administrator: a 
statement that the applicant will not seek review of the decision in 
the United States courts, bank routing numbers to which the 
Administrator may transmit payment, and the applicant's tax 
identification or Social Security number. The Administrator will pay 
the applicant the amount awarded within 60 days of receiving the 
necessary information from the applicant, unless judicial review of the 
award or of the underlying decision of the adversary adjudication has 
been sought by the applicant or any other party to the proceeding.

Deborah A.P. Hersman,
Chairman.
[FR Doc. 2012-25400 Filed 10-15-12; 8:45 am]
BILLING CODE 7533-01-P