80452 Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 

NATIONAL TRANSPORTATION 

SAFETY BOARD 

49 CFR Parts 821 and 826 

Rules of Practice in Air Safety 

Proceedings and Implementing the 

Equal Access to Justice Act of 1980 

AGENCY: National Transportation Safety 

Board (NTSB or Board). 

ACTION: Advance notice of proposed 

rulemaking (ANPRM). 

SUMMARY: The NTSB seeks comments 

from the public regarding amendments 

to its regulations which set forth rules 

of procedure for the NTSB’s review of 

certificate actions taken by the Federal 

Aviation Administration (FAA), and 

those which set forth rules of procedure 

concerning applications for fees and 

expenses under the Equal Access to 

Justice Act (EAJA). The NTSB is 

undertaking a review in an effort to 

respond to parties’ suggestions for 

changing the rules, in order to update 

rules that may be outdated, in the 

interest of modernizing the rules to 

accommodate prospective electronic 

filing and document availability in case 

dockets. 

DATES: Send your comments on or 

before February 22, 2011. 

ADDRESSES: You may send comments 

using any of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov and follow 

the instructions for sending your 

comments electronically. 

• Mail: Send comments to NTSB 

Office of General Counsel, 490 L’Enfant 

Plaza East, SW., Washington, DC 20594– 

2000. 

• Facsimile: Fax comments to 202– 

314–6090. 

• Hand Delivery: Bring comments to 

490 L’Enfant Plaza East, SW., 6th Floor, 

Washington, DC, between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. 

For more information on the rulemaking 

process, see the SUPPLEMENTARY

INFORMATION section of this document. 

Privacy: We will post all comments 

we receive, without change, to http:// 

www.regulations.gov, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: Gary 

Halbert, General Counsel, (202) 314– 

6080. 

SUPPLEMENTARY INFORMATION: 

Comments Invited 

The NTSB invites interested persons 

to participate in this rulemaking by 

submitting written comments, data, or 

views. We also invite comments relating 

to any economic, environmental, 

energy, or federalism impacts that may 

result in amending part 821 or part 826. 

The most helpful comments would 

reference a specific section, explain the 

reason for any recommended change, 

and include supporting data or 

rationale. To ensure the docket does not 

contain duplicative comments, please 

send only one copy of written 

comments, or, if you are filing 

comments electronically, please submit 

your comments only once. 

We will file in the docket all 

comments we receive, as well as a 

report summarizing any substantive 

public contact with NTSB personnel 

concerning this proposed rulemaking. 

Before amending part 821 or part 826, 

we will consider all comments we 

receive on or before the closing date for 

comments. As described below, we are 

particularly interested in reviewing 

comments pertaining to: The standard 

for the NTSB’s review of the FAA’s 

‘‘emergency’’ determinations; discovery 

and exchange of documents in air safety 

proceedings; suggestions concerning 

electronic filing of documents in such 

cases; and updates to the procedural 

rules governing EAJA claims. 

Part 821: Rules of Practice in Air Safety 

Proceedings 

Emergency Review Process: Regulatory 

History 

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 non-emergency 

cases, the certificate holder may 

continue to exercise the privileges of the 

certificate(s) affected by such an order 

while an appeal of the order is pending 

with the NTSB. Emergency orders are 

issued by the FAA where it finds that 

the interests of safety require that the 

order be effective immediately, and, in 

those cases, certificate privileges may 

not be exercised during the pendency of 

the appeal. Section 716 of the Aviation 

Investment and Reform Act for the 21st 

Century (hereinafter, ‘‘the Act’’) 

amended 49 U.S.C. 44709 by granting 

the NTSB authority to review such 

emergency determinations. Public Law 

106–181, section 716 (2000) (codified at 

49 U.S.C. 44709(e)(3)). 

On July 11, 2000, in order to 

implement that provision, the NTSB 

published an Interim Rule with a 

request for comments. 65 FR 42637. 

This Interim Rule amended 49 CFR part 

821 by providing the NTSB’s 

administrative law judges with the 

authority to issue orders affirming or 

denying the FAA’s determination that 

an emergency exists under 49 U.S.C. 

44709(e). 

The NTSB received a number of 

comments in response to the Interim 

Rule, which it considered when drafting 

the Final Rule. Those comments were 

primarily directed at the following 

subjects: The standard of review of 

emergency determinations; the burden 

of proof and the evidence to be 

reviewed; and an intermediate appeal 

process to the full Board. In addition, a 

suggestion was made to allow electronic 

filings in such proceedings. On April 

29, 2003, the NTSB published the Final 

Rule, which included one major change 

from the Interim Rule: It altered the 

standard of review for emergency 

determinations. 

A. Standard of Review 

The standard of review of emergency 

determinations in the Interim Rule 

directed NTSB law judges to decide 

whether the Administrator abused his or 

her discretion in finding that an 

emergency existed under the facts 

alleged in the Administrator’s order, 

which the NTSB assumed to be true for 

the limited purpose of reviewing the 

emergency determination. The NTSB 

incorporated the abuse of discretion 

standard for review set forth in the 

Interim Rule from Nevada Airlines v. 

Bond, 622 F.2d 1017 (9th Cir. 1980). 

Subsequent to Nevada Airlines, the 

Ninth Circuit, in Tur v. FAA, 4 F.3d 

766, 768 (1993), reaffirmed the 

‘‘arbitrary and capricious, an abuse of 

discretion, or otherwise not in 

accordance with law’’ standard it 

articulated in Nevada Airlines. That 

standard was also applied in Ickes v. 

FAA, 299 F.3d 260 (3rd Cir. 2002) 

(citing Blackman v. Busey, 938 F.2d 

659, 663 (6th Cir. 1991) and Nevada 

Airlines, and stating, ‘‘our standard of 

review when assessing an FAA response 

to a perceived emergency is 

appropriately deferential: we ask only 

whether the finding of an emergency 

‘was a clear error of judgment lacking 

any rational basis in fact.’ ’’). See also 

Armstrong v. FAA, 515 F.3d 1294 (D.C. 

Cir. 2008) (implying, in dicta, that the 

appropriate standard for review of 

emergency determinations is an 

‘‘arbitrary and capricious’’ standard). 

After issuing the Interim Rule, the 

NTSB received two comments asserting 

that the abuse of discretion standard is 

not appropriate for the NTSB to apply 

to its reviews of emergency 

determinations. Both commenters stated 

that the abuse of discretion standard 

used in Nevada Airlines was a standard 

for judicial review and was not suitable 

for administrative review by the NTSB. 


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Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 80453 

However, based on the comments, the 

standard of review provided for in the 

Final Rule at section 821.54(e) provides: 

‘‘Within 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.’’ 

The NTSB adopted a standard that 

requires a law judge to ascertain 

whether the Administrator’s emergency 

determination was appropriate under 

the circumstances, given the potential 

threat to aviation safety, rather than 

merely deciding whether the 

Administrator’s emergency 

determination was rationally 

supportable under an abuse of 

discretion standard. Thus, the standard 

adopted in the Final Rule represented a 

substantive departure from the more 

stringent standard that had been 

generally accepted by the courts. 

B. Burden of Proof and Evidence 

Related to the standard of review in 

emergency determination cases, some 

commenters objected to the provision in 

the Interim Rule that reviews of 

emergency determinations be 

undertaken under the assumption that 

facts alleged by the Administrator are 

true. That assumption remained 

unchanged in the Final Rule. Note: 

Section 821.54(e) does not explicitly 

state that 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. The NTSB concluded that the 

right to challenge an emergency 

determination should not be an 

opportunity to contest the factual 

allegations underlying the certificate 

action. The Board believed its rules 

already provided an opportunity for 

contesting those factual allegations in 

emergency cases via an expedited 

review process, which must be 

completed within 60 days, and the 

NTSB determined that it would be 

impractical to accomplish that 

expedited review process within the 

preliminary 5-day emergency 

determination review process. 

The NTSB also received several 

comments concerning the review of 

evidence during the emergency 

determination review phase; most 

commenters asserted that certificate 

holders need more evidence from the 

FAA in order to contest the 

determination that an emergency exists. 

After carefully considering the 

comments concerning the presentation 

of evidence during the emergency 

review determination phase, the NTSB 

included the following provision in 

section 821.54(d) of its Final Rule: ‘‘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 * * * solicit from the 

parties additional information to 

supplement that previously provided by 

the parties.’’ 

C. Appeals Process 

Several commenters were also 

concerned with the Interim Rule’s 

provision, in section 821.54(f), that the 

law judge’s determination concerning 

an emergency review petition would be 

considered final. The commenters 

provided various suggestions for an 

appeal process, in which a certificate 

holder could appeal the law judge’s 

determination that an emergency exists 

to the Board. In the Final Rule, the 

NTSB decided not to institute such an 

intermediate appellate procedure for 

review of the law judges’ decisions in 

reviewing emergency determinations. 

The NTSB determined that it was not 

necessary and would prove infeasible 

given the 5-day statutory period in 

which the Board must act on a petition. 

In order to address concerns of 

inconsistency and lack of precedent, the 

NTSB provided in the Final Rule that it 

would, 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, 

state the Board’s concurrence or 

disagreement with the law judge’s 

ruling on a petition challenging the 

emergency determination whenever it 

would be beneficial to address the 

issues raised, and that such views of the 

Board would serve as binding precedent 

in future cases. 

D. Electronic Filings 

Finally, one commenter suggested 

that the NTSB consider permitting 

electronic filing in emergency 

proceedings. The NTSB declined to 

adopt such a provision in the Final 

Rule. 

Request for Comments 

A. Standard for NTSB Review of FAA 

Emergency Determinations 

Recently, the NTSB has received 

requests from outside organizations to 

further alter the standard of review for 

emergency determinations. In 

particular, parties have asked the NTSB 

to consider removing the language of 

section 821.54(e) that provides that the 

law judge should assume that the acts 

and omissions alleged in the FAA’s 

emergency order are true. Because of 

such interest, the NTSB specifically 

invites written comments concerning 

this issue along with support for the 

position. 

B. Discovery and Exchanges of 

Information by the Parties 

The NTSB has also received requests 

for amendments to its rules governing 

the discovery process and exchanges of 

information by the parties in air safety 

enforcement proceedings, and would 

like to invite written comments 

concerning discovery obligations in 

cases on appeal. For example, in the 

interest of ensuring that parties 

understand their discovery obligations, 

should the Rules of Practice require law 

judges routinely to issue prehearing 

orders? In addition, should the Rules 

impose any specific sanctions for a 

party’s failure to provide information 

requested in discovery? The NTSB 

specifically invites comments on these 

issues along with the reasoning for any 

recommendation to make changes, as 

well as general concerns regarding prehearing exchanges of information by the 

parties. 

C. Electronic Filing of Documents 

The NTSB is committed to creating an 

electronic filing system for cases 

involving certificate actions at some 

point in the future. Currently, the NTSB 

is in the initial stages of exploring 

options for such a system. The NTSB is 

nevertheless interested in obtaining 

ideas and suggestions at this juncture 

from commenters. The NTSB notes that 

many certificate-holders proceed pro se 

(without representation by legal 

counsel), and encourages comments that 

suggest means by which parties acting 

pro se may avail themselves of the 

electronic filing process. 

Part 826: EAJA Procedural Rules 

Background Information 

The NTSB promulgated part 826 on 

October 1, 1981, in light of the need for 

procedural rules to govern cases arising 

out of the EAJA, codified at 5 U.S.C. 

504. In the Final Rule that the NTSB 

published promulgating part 826 


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80454 Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Proposed Rules 

(published at 46 FR 48208 (Oct. 1, 

1981)), the NTSB organized part 826 

into three subparts: Subpart A contains 

general provisions, such as the purpose 

of part 826, which proceedings are 

covered and which applicants are 

eligible, and which fees and expenses 

are allowable, among other subjects; 

subpart B contains provisions 

concerning the required information 

that applicants must furnish the NTSB 

in order to receive an award; and 

subpart C sets forth the NTSB’s 

procedures for considering EAJA 

applications. In 1989, the NTSB 

published a Final Rule amending the 

authority citation for part 826, and 

revising section 826.4, which addresses 

the eligibility of applicants (published 

at 54 FR 10332–01 (Mar. 13, 1989)). 

Specifically, the NTSB revised three 

subsections of section 826.4(b) to 

provide limitations on which applicants 

may be eligible for an award. The NTSB 

has not amended part 826 since the 

March 1989 Final Rule. 

Request for Comments 

Recently, the NTSB Office of General 

Counsel received an inquiry from an 

attorney who advised that section 

826.40, which provides instructions for 

receiving payment of an award from the 

FAA, was outdated, in that it provides 

an incorrect address and contact 

information for the FAA office 

responsible for managing payments of 

awards under the EAJA. The NTSB 

seeks to ensure that its regulations are 

current, accurate, legally enforceable, 

and helpful to individuals to whom they 

apply. Therefore, the NTSB plans to 

update section 826.40, as well as any 

other sections within part 826 that may 

also be inaccurate. 

The NTSB invites written comments 

from any individuals interested in this 

rulemaking. As stated above, comments 

should specify the section needing 

amendment, and provide clear 

recommendations of the proposed 

changes along with supporting data and 

rationale. 

The NTSB reminds potential 

commenters that 5 U.S.C. 504 governs 

the applicability of the EAJA, and the 

NTSB will not attempt to expand this 

applicability in amending part 826. The 

NTSB also will observe and respect 

courts’ interpretations of 5 U.S.C. 504, 

and, in general, will not adopt 

suggestions that are contrary to the 

Federal Courts of Appeals’ 

interpretations. 

In general, the NTSB is receptive to 

considering suggestions concerning the 

promulgation of new sections regarding 

subjects not presently addressed in part 

826. The NTSB does not intend to enact 

proposed provisions that it believes 

would not be helpful, would impose an 

undue burden on the FAA or the EAJA 

applicant, or would be contrary to any 

law, regulation, or executive order. The 

NTSB invites comments concerning 

proposed amendments to part 826 in 

light of these proclamations. 

Regulatory Notices 

1. Executive Order 12866 (Regulatory 

Planning and Review) 

This advance notice of proposed 

rulemaking is not a significant 

regulatory action under Executive Order 

12866. Therefore, Executive Order 

12866 does not require a Regulatory 

Assessment. 

2. Executive Order 13132 (Federalism) 

The NTSB has analyzed this ANPRM 

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. 

3. Regulatory Flexibility Act 

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 

does not believe that any proposal 

resulting from this ANPRM will have a 

significant economic impact on a 

substantial number of small entities. 

However, the NTSB invites comments to 

facilitate any further analysis on this 

issue. 

Dated: December 15, 2010. 

Deborah A.P. Hersman, 

Chairman. 

[FR Doc. 2010–32056 Filed 12–21–10; 8:45 am] 

BILLING CODE 7533–01–P 


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