[Federal Register Volume 79, Number 137 (Thursday, July 17, 2014)]
[Proposed Rules]
[Pages 41668-41669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-16713]


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NATIONAL TRANSPORTATION SAFETY BOARD

49 CFR Part 821

RIN 3147-AA00
[Docket No. NTSB-GC-2011-0001]


Rules of Practice in Air Safety Proceedings; Withdrawal

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

ACTION: Notice of withdrawal of proposed rulemaking.

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SUMMARY: The NTSB is withdrawing its Notice of Proposed Rulemaking 
(NPRM) published on September 19, 2013. The proposed change in the NPRM 
would have required the Federal Aviation Administration (FAA) to 
provide releasable portions of the enforcement investigative report 
(EIR) to each respondent in emergency cases.

DATES: As of July 17, 2014, the proposed rule published September 19, 
2013, at 78 FR 57602, is withdrawn.

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

SUPPLEMENTARY INFORMATION: On September 19, 2013, the NTSB published an 
NPRM and a final rule, related to the enactment of the Pilot's Bill of 
Rights, Public Law 112-153 at section 2(b)(2)(E) (August 3, 2012). In 
the NPRM, published at 78 FR 57602, the NTSB proposed requiring the 
release of the EIR in emergency air safety enforcement cases proceeding 
under subpart I of the NTSB's rules (Special Rules Applicable to 
Proceedings Involving Emergency and Other Immediately Effective 
Orders).
    The NTSB received three comments in response to the NPRM. Two of 
the comments, submitted by Aircraft Owners and Pilots Association 
(AOPA) and National Business Aviation Association (NBAA) expressed 
support for the NTSB's proposed change. AOPA's comment included a 
suggestion that the NTSB require, in some cases, privilege logs and in 
camera reviews of disclosed EIRs, to ensure the FAA disclosed all 
releasable portions under the proposed text of Sec.  821.55. See also 
49 CFR 821.19(d).
    The remaining comment, from the FAA, discouraged the NTSB from 
proceeding with the proposed change,

[[Page 41669]]

on several bases. The FAA stated the NTSB, in its final rule which the 
NTSB also published on September 19, 2013, 78 FR 57527, recognized the 
NTSB lacks jurisdiction to oversee release of documents and discovery 
in a certificate enforcement action until the respondent has filed with 
the NTSB Office of Administrative law Judges an appeal from an order 
issued by the FAA Administrator. For this reason, in the final rule, 
the NTSB set forth the requirement that the FAA release its EIR upon 
the request of the respondent at the time the FAA issues its complaint 
in non-emergency cases. By that rationale, the FAA asserts in its 
comments regarding the NPRM the NTSB cannot exercise authority over the 
FAA's release of EIRs in emergency cases until the FAA issues its 
complaint in such cases. The FAA also quotes the Pilot's Bill of 
Rights, which requires the FAA to make available the EIR, rather than 
release it outright in the absence of a request. In addition, the FAA 
states it maintains authority to issue emergency orders orally, rather 
than in writing, and may do so in particularly egregious cases.
    The FAA also points out the NTSB's promulgation of the proposed 
rule would have eliminated the paragraph concerning discovery 
procedures applicable to emergency cases. The FAA asks the NTSB to 
maintain its current rules concerning discovery procedures applicable 
to emergency cases.
    The NTSB appreciates the points all three commenters proferred, and 
has carefully considered them. The NTSB finds the FAA's assertion 
concerning the lack of jurisdiction persuasive. The NTSB has decided to 
withdraw the proposed rulemaking, based on the lack of express 
statutory authority in the Pilot's Bill of Rights for the NTSB to 
exercise jurisdiction over emergency cases prior to a respondent's 
filing of an appeal of an order issued by the FAA Administrator. Given 
this lack of authority, the NTSB has determined it cannot promulgate 
and enforce the proposed rule change. Consistent with this decision to 
withdraw this rulemaking, the existing paragraph in Sec.  821.55 
concerning the discovery procedure applicable to emergency cases, 
remains unchanged. Notwithstanding this determination concerning 
authority, the NTSB believes its administrative law judges may 
nevertheless administer appropriate remedies in emergency cases where, 
after the NTSB's jurisdiction attaches, the FAA fails to make available 
the EIR to a respondent. Based on these considerations, we withdraw the 
NPRM published September 19, 2013.

Christopher A. Hart,
Acting Chairman.
[FR Doc. 2014-16713 Filed 7-16-14; 8:45 am]
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