[Federal Register Volume 75, Number 245 (Wednesday, December 22, 2010)]
[Proposed Rules]
[Pages 80452-80454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32056]



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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).

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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update rules that may be outdated, in the interest of modernizing the 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:
    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the instructions for sending your 
comments electronically.
    <bullet> Mail: Send comments to NTSB Office of General Counsel, 490 
L'Enfant Plaza East, SW., Washington, DC 20594-2000.
    <bullet> Facsimile: Fax comments to 202-314-6090.
    <bullet> 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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    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 
pre-hearing 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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(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]
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