[Federal Register Volume 78, Number 182 (Thursday, September 19, 2013)]
[Proposed Rules]
[Pages 57602-57604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-22633]


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NATIONAL TRANSPORTATION SAFETY BOARD

49 CFR Part 821

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


Rules of Practice in Air Safety Proceedings

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The NTSB proposes amending one of its rules of practice that 
is applicable to cases proceeding on an emergency timeline. This 
proposed amendment will require the Federal Aviation Administration 
(FAA) to provide releasable portions of its enforcement investigative 
report (EIR) to each respondent in emergency cases.

DATES: Comments must be submitted by October 21, 2013.

ADDRESSES: A copy of this 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. 
Alternatively, a copy 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:  Elsewhere in today's Federal Register, the 
NTSB published a Final Rule, finalizing changes to various sections of 
49 CFR part 821, as a result of the Pilot's Bill of Rights. In the 
final rule, the NTSB, among other things, updated language in Sec.  
821.19(d), which requires disclosure of the FAA's EIR in non-emergency 
cases. Because the Pilot's Bill of Rights was immediately effective 
upon enactment on August 3, 2012, the NTSB published an interim final 
rule to implement the new legislation's requirements, 77 FR 63242 (Oct. 
16, 2012).
    In this NPRM, the NTSB proposes incorporating a similar requirement 
at

[[Page 57603]]

paragraph (d) of Sec.  821.55, regarding the release of the EIR in 
emergency cases proceeding under subpart I of the NTSB's rules of 
practice. In view of the exigencies presented to certificate holders 
against whom the Administrator issues emergency orders and the 
expedited timeframes the Board must observe in adjudicating aviation 
safety emergency cases, Sec.  821.55(d) will permit relief if the FAA 
does not provide a copy of the EIR to the respondent in an emergency 
proceeding by the time the certificate order, as opposed to the 
complaint, is served on the respondent. This language is set forth in 
the proposed regulatory text of this rule.
    Although in the Pilot's Bill of Rights, Congress required the NTSB 
to apply the Federal Rules of Civil Procedure and Federal Rules of 
Evidence to cases within the NTSB's jurisdiction ``to the extent 
practicable,'' it did not specifically address in the legislation 
whether the EIR requirement applies to NTSB emergency cases. The NTSB 
believes such application is appropriate. First, the structurally 
similar NTSB rules for both emergency and non-emergency proceedings 
will ensure consistency, which is beneficial for parties and the NTSB's 
administrative law judges. Parties will benefit from having clear 
expectations concerning the availability of information at the 
beginning of each case. In addition, the FAA's compliance with the 
requirement to provide the EIR at the commencement of each case will 
not be changed if a respondent waives the applicability of the 
emergency rules of subpart I.
    Applying this disclosure requirement to Sec.  821.55(d) will also 
require an amendment to Sec.  821.55(c), which currently prohibits 
motions to dismiss the complaint or motions for a more definite 
statement of the complaint's allegations. Instead, Sec.  821.55(c) 
provides ``the substance [of such motions] may be stated in the 
respondent's answer.'' This preclusion of motions in the early stages 
of a case is the result of the time constraints applicable to emergency 
cases. However, given our proposal to apply the EIR disclosure 
requirement to emergency cases in Sec.  821.55(d), we also propose 
amending Sec.  821.55(c) as set forth in the regulatory text of this 
rule.
    The NTSB specifically invites comments concerning Sec.  821.55(c) 
and (d). The interim final rule, although it included within Sec.  
821.19(d) the availability of dismissal on motion in the event the FAA 
did not timely release the EIR, did not address whether the requirement 
applied to emergency cases. As a result, the NTSB believes it necessary 
to allow for comments on the inclusion of this requirement in Sec.  
821.55. The NTSB will accept comments for 30 days from the date of 
publication of this NPRM.

Regulatory Analysis

    This rule is not a ``significant regulatory action'' under section 
3(f) of Executive Order 12866, Regulatory Planning and Review, and does 
not require an assessment of the potential costs and benefits under 
section 6(a)(3) of that Order. As such, the Office of Management and 
Budget has not reviewed this rule under Executive Order 12866. 
Likewise, this rule does not require an analysis under the Unfunded 
Mandates Reform Act, 2 U.S.C. 1501-1571, or the National Environmental 
Policy Act, 42 U.S.C. 4321-4347.
    In addition, the NTSB has considered whether this rule would have a 
significant economic impact on a substantial number of small entities, 
under the Regulatory Flexibility Act (5 U.S.C. 601-612). The NTSB 
certifies under 5 U.S.C. 605(b) that this rule would not have a 
significant economic impact on a substantial number of small entities. 
Moreover, in accordance with 5 U.S.C. 605(b), the NTSB will submit this 
certification to the Chief Counsel for Advocacy at the Small Business 
Administration.
    The NTSB does not anticipate this rule will have a substantial, 
direct effect on state or local governments or will preempt state law; 
as such, this rule does not have implications for federalism under 
Executive Order 13132, Federalism. This 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 for 49 CFR Part 821

    Administrative practice and procedure, Airmen, Aviation safety.

    For the reasons discussed in the preamble, the NTSB proposes to 
amend 49 CFR part 821 as follows:

PART 821--RULES OF PRACTICE IN AIR SAFETY PROCEEDINGS

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

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

0720
2. In Sec.  821.55, revise paragraphs (c) and (d) to read as follows:


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

* * * * *
    (c) Motion to dismiss and motion for more definite statement. In 
proceedings governed by this subpart, except as provided in paragraph 
(d) of this section, 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) Failure to provide copy of releasable portion of Enforcement 
Investigative Report (EIR). (1) In proceedings governed by this 
subpart, where the Administrator fails to provide the releasable 
portion of the EIR to the respondent by the time it serves an emergency 
or other immediately effective order on the respondent, the respondent 
may move to dismiss the complaint or for other relief and, unless the 
Administrator establishes good cause for that failure, the law judge 
shall order such relief as he or she deems appropriate, after 
considering the parties' arguments.
    (2) The releasable portion of the EIR shall include all information 
in the EIR, except for the following:
    (i) Information that is privileged;
    (ii) Information that constitutes work product or reflects internal 
deliberative process;
    (iii) Information that would disclose the identity of a 
confidential source;
    (iv) Information of which applicable law prohibits disclosure;
    (v) Information about which the law judge grants leave to withhold 
as not relevant to the subject matter of the proceeding or otherwise, 
for good cause shown; or

[[Page 57604]]

    (vi) Sensitive security information, as defined at 49 U.S.C. 40119 
and 49 CFR 15.5.
    (3) Nothing in this section shall be interpreted as preventing the 
Administrator from releasing to the respondent information in addition 
to that which is contained in the releasable portion of the EIR. 
Likewise, nothing in this section shall be interpreted as preventing 
the Administrator from releasing to the respondent a copy of the EIR 
prior to the issuance of the Administrator's complaint.

Deborah A.P. Hersman,
Acting Chairman.
[FR Doc. 2013-22633 Filed 9-18-13; 8:45 am]
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