National Transportation Safety Board.
On July 11, 2000, the Board published, at 65 FR 42637, interim rules to implement Section 716 of the Aviation Investment and Reform Act for the 21st Century. That provision of law conferred on the Board the authority to review determinations by the Administrator of the Federal Aviation Administration (FAA) that an emergency exists which warrants the immediate effectiveness of an order amending, modifying, suspending or revoking certain FAA-issued certificates. The only significant changes effected by the final rule involve the standard to be applied by the Board's administrative law judges in reviewing emergency determinations, and the adoption of a procedure to enhance the prospective value of the law judges' decisions by reflecting the Board's opinion on them.
These final rules are effective on June 30, 2003.Start Further Info
FOR FURTHER INFORMATION CONTACT:
David E. Bass, Deputy General Counsel, (202) 314-6080.End Further Info End Preamble Start Supplemental Information
Board Review of Law Judges' Decisions (see § 821.54(f)). The interim rules currently in effect delegated to the Board's administrative law judges the authority to review emergency determinations of the Administrator, without right of appeal to the Board. We have decided to extend that delegation indefinitely, as our experience thus far does not suggest a need for further review, or review by the Board itself instead of a law judge, and a multi-layered process would be difficult, if possible at all, to administer in the statutory 5-day period within which the Board must act on a petition. We, therefore, will not, as recommended by some commenters, institute a procedure for review, at the Board level, of the law judges' decisions on petitions. Nevertheless, we do find merit in the concern that a lack of Board review could adversely affect uniformity among the decisions of our law judges on common issues and deprive future litigants (and the law judges) the guidance of precedent. Accordingly, we will, henceforth, undertake to register, 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, our concurrence or disagreement with the law judge's ruling on a petition, whenever, in our judgment and if time permits—it would be beneficial to address the issues raised. When we differ with a ruling, or agree for different reasons, we will provide our views.
Standard of Review (see § 821.54(e)). Several commenters contend that the “abuse of discretion” standard established in the interim rules is inappropriate and should be discarded in favor of the “preponderance of the evidence” standard employed in our adjudications on the merits of the Administrator's charges. Related to this view is the belief that the Administrator—and not the affected certificate holder—should bear the burden of proof in the review. Although we originally believed that the approach taken in an analogous judicial setting represented a model we should emulate, the Board has come to the view that the “abuse of discretion” standard, commonly applied by the courts in Start Printed Page 22624examining the validity of decisions committed by law to agency discretion, is more deferential to the Administrator's emergency determination judgments than is warranted under our new authority, given, among other things, the Board's own expertise in assessing matters involving aviation safety. However, we disagree with the view that a “preponderance of the evidence” standard should, or could, be substituted in its place. An emergency determination is not, as we see it, a finding or conclusion that easily lends itself to evidentiary proof. And the right to challenge an emergency determination before the Board should neither be seen as, nor be allowed to become, an opportunity to contest the factual predicate underlying the Administrator's judgment that considerations of aviation safety require an individual or an entity to be deprived of certificate privileges pending adjudication of the charges. The Board's rules provide a contemporaneous, expedited review process designed for that very purpose which must, by statute, be fully completed within 60 days. We are aware of no Congressional desire to supplant that process with the 5-day emergency determination review process mandated under the Board's new authority.
An emergency determination is essentially a judgment call, whose necessity in the interest of aviation safety should be more or less self-evident in light of the nature or seriousness of the accompanying allegations. Air safety depends on, among other things, both the competence and trustworthiness of certificate holders. In fact, certificate holders who choose to disregard or defy regulations or safe operating practices may well pose a greater risk to the lives and property of others than those who inadvertently breach such conventions, or lack the knowledge or ability to avoid breaches, for the former arguably create a higher degree of uncertainty in a system that cannot function safely if the actions of all users cannot be confidently predicted. Thus, in addition to conduct reflecting seriously sub-par operating competence or grossly inferior technical qualifications, behaviors such as refusing a drug test, or operating an aircraft while impaired or during a certificate suspension, reveal the kind of lawlessness or deficient judgment that ordinarily compels the conclusion that the effectiveness of a certificate action should not be delayed pending the adjudication of the resulting charges. The same conclusion may also be justified in the face of flagrant or repeated intentional falsification and cases involving a drug conviction, while the appropriateness of the exercise of emergency authority in other kinds of actions, such as those in which the Administrator concludes that a commercial operator should not be given any more time to fulfill past assurances that deficiencies in its operations will be promptly corrected, rests on a more individualized assessment of the threat to the public safety represented by the specific putative circumstances identified by the Administrator.
As noted above, the “abuse of discretion” standard set out in the interim rules subjugates the Board's own capacity to judge for itself the need for affecting the immediate forfeiture of certificate rights to the presumed correctness of decisions the Administrator has already made. Because we believe that the exercise of our authority to reverse an emergency determination should not be limited to situations where the Administrator's judgment cannot be said to be rationally supportable, but should, in addition, be applied where we do not agree, for example, that the potential risks to air safety apparent in the Administrator's charges demand the immediate imposition of a sanction before the charges have been fully adjudicated, we will not include the “abuse of discretion” standard in the final rule. Rather, we will entrust to the sound judgment and discretion of the law judge the task, and the somber responsibility, of determining in each specific case whether the Administrator's emergency determination was appropriate under the circumstances. The law judge may so find either because the determination is seen to have fairly or correctly balanced the certificate holder's interest in the uninterrupted enjoyment of certificate privileges in the face of as-yet unproved charges with the need to protect the public from those individuals or entities whose suspected misconduct or lack of qualification establishes or convincingly suggests that they cannot or will not exercise their certificate privileges pending the completion of the Board's appellate review process in accordance with all applicable standards and requirements, or because the allegations disclose such contempt for the rule of law or for considerations of aviation safety that they cannot or should not be trusted to exercise the care, judgment and responsibility expected of a certificate holder while adjudication of their appeal from the Administrator's order is pending.
Burden of Proof (see §§ 821.54(b)-(e)). Consistent with our view that an emergency determination is more a matter of judgment than evidence, we do not believe that either the Administrator or the certificate holder has a burden of proof, in the traditional sense. At the same time, we do not believe that a certificate holder can reasonably be expected to be able to challenge an emergency determination, or that our law judges can effectively review one, unless the Administrator first provides his or her reasons for believing that an emergency exists. In this connection, some commenters urge us to require the Administrator to attach to the emergency order a copy of the FAA's Enforcement Investigative Report, since it would presumably supply the information needed to evaluate the propriety of the emergency determination. We find it unnecessary to consider the several arguments the Administrator has advanced against the imposition of such a requirement, including the suggestion that we lack the authority to direct the release of any information in advance of an appeal to us. It seems to us that the absence of an “abuse of discretion” standard in the final rule will encourage the Administrator to explain in the order the basis for the emergency determination, in order to avoid having a law judge assess the issue without the benefit of the Administrator's views. In this latter connection, we note that a frequent contention in emergency challenge petitions is the assertion that, if a genuine emergency existed, the Administrator would have taken less time to issue the order. While this circumstance may occasionally be relevant to the evaluation a law judge must make, it should not be allowed to obscure the proper focus of the inquiry. In other words, an arguably dilatory prosecution does not vitiate an otherwise proper judgment as to the necessity, in the interest of aviation Start Printed Page 22625safety, for the immediate effectiveness of an action against a certificate before the certificate holder's appeal is adjudicated.
In keeping with this de facto shift in the burden of going forward with a supporting rationale, the final rule will dispense with the requirement, in § 821.54(b), that the petition “enumerate the specific grounds on which the certificate holder challenges the Administrator's determination that an emergency exists.” Instead, the rule, though not requiring the certificate holder to do anything more than contest the emergency determination by filing a petition, will permit the certificate holder to assert only such reasons as that individual or entity may have for believing that the effectiveness of the certificate order should be stayed pending the future adjudication of the Administrator's allegations. If a petition contains reasons for the certificate holder's challenge to the emergency determination, the Administrator may file a reply, which must be limited to matters of rebuttal.
Miscellany (see §§ 821.53(b) and 821.54(b)). Dropped from the final rule is the requirement, in § 821.53(b), that an appeal from an emergency or other immediately effective order be accompanied by a copy of the order itself. While it is essential for a copy of the order to be included with a petition seeking review of an emergency determination—especially under § 821.54(b) and (c), as amended by these final rules—because the law judge must, within a short timeframe, evaluate whether the emergency determination was warranted, based on the acts and omissions alleged by the Administrator in the order, there is no such practical necessity where the Administrator's emergency determination is not challenged, and immediate identification of the specific allegations of the order is, therefore, not vital. In such instances, it is sufficient for the certificate holder to merely indicate in the appeal that the appeal is from an emergency or other immediately effective order, so that the Board is aware that subpart I is applicable.
Since part 821 was last amended with the publication of the interim rules governing our review of the Administrator's emergency determinations, we have reexamined our procedural rules in their entirety with an eye toward updating and modernizing them by correcting terminology errors that have developed over time, eliminating dated, unnecessary, redundant or confusing language, and having certain provisions of the rules more closely reflect actual practice. These housekeeping measures have resulted in the adoption of a significant number of amendments, and we have, for purposes of clarity, decided to revise part 821 in toto, rather than publish such changes in piecemeal fashion. While the Board considers these changes to be essentially procedural in nature, one revision that may be viewed as substantive and, thus, bears special note, is an amendment to § 821.61, which makes the prohibition on ex parte communications applicable from the time a petition for review of a certificate denial or an appeal from a certificate action of the Administrator is filed, or the time the communicator has knowledge that a petition or appeal will be filed. Under that rule prior to amendment, the prohibition did not apply until the matter was noticed for hearing, or the communicator had knowledge that it would be. This revision, by making the prohibition apply from the time the Board's jurisdiction attaches, rather than a later time, more closely reflects the ethical considerations involved and clarifies the Board's intolerance for communications of an ex parte nature throughout its involvement in the adjudication of air safety matters.Start List of Subjects
List of Subjects in 49 CFR Part 821End List of Subjects Start Amendment Part
For the reasons set forth in the preamble, part 821 of title 49 of the Code of Federal Regulations is revised to read as follows:End Amendment Part Start Part
PART 821—RULES OF PRACTICE IN AIR SAFETY PROCEEDINGS
- Applicability and description of part.
- Description of docket numbering system.
- Appearances and rights of witnesses.
- Filing of documents with the Board.
- Service of documents.
- Intervention and amicus appearance.
- Computation of time.
- Extensions of time.
- Amendment and withdrawal of pleadings.
- Motion to disqualify a Board Member.
- Interlocutory appeals from law judges' rulings on motions.
- Motions to dismiss, for judgment on the pleadings and for summary judgment.
- Motion for a more definite statement.
- Depositions and other discovery.
- Subpoenas, witness fees, and appearances of Board Members, officers and employees.
- Official notice.
- Initiation of proceeding.
- Burden of proof.
- Motion to dismiss petition for review for lack of standing.
- Initiation of proceeding.
- Complaint procedure.
- Burden of proof.
- Motion to dismiss stale complaint.
- Assignment, duties and powers.
- Notice of hearing.
- Argument and submissions.
- Initial decision by law judge.
- Effect of law judge's initial decision or appealable order and appeal therefrom.
- Notice of appeal.
- Briefs and oral argument.
- Issues on appeal.
- Petition for rehearing, reargument, reconsideration or modification of an order of the Board.
- Petition for review of Administrator's determination of emergency.
- Complaint, answer to complaint, motions and discovery.
- Hearing and initial decision or appealable order of law judge.
- Procedure on appeal.
- Prohibited ex parte communications.
- Procedures for handling ex parte communications.
- Requirement to show cause and imposition of sanction.
Subpart K—Judicial Review of Board Orders821.64 Start Printed Page 22626
Subpart A—General Provisions
(a) As used in this part:
Administrator means the Administrator of the Federal Aviation Administration (FAA);
Airman certificate means any certificate issued by the FAA to an airman, and shall include medical certificates required for airmen;
Appeal from an initial decision means a request to the Board to review a law judge's decision;
Appeal to the Board means a request to the Board for the review by a law judge of an order of the Administrator;
Appealable order means an order of a law judge that has the effect of terminating the proceeding, such as one granting a motion to dismiss in lieu of an answer, as provided in § 821.17, or one granting a motion for judgment on the pleadings or summary judgment. Appealable order does not include an order granting in part a motion to dismiss and requiring an answer to any remaining allegation or allegations, an order granting in part judgment on the pleadings or summary judgment, or a ruling on an interlocutory matter;
Board means the National Transportation Safety Board;
Case Manager means the officer of the Board's Office of Administrative Law Judges responsible for the processing of cases within that office;
Certificate means any certificate issued by the Administrator under 49 U.S.C. Chapter 447;
Chief Law Judge means the administrative law judge in charge of the adjudicative function of the Board's Office of Administrative Law Judges;
Complaint means an order of the Administrator, reissued for pleading purposes, from which an appeal to the Board has been taken pursuant to sections 49 U.S.C. 44106, 44709 or 46301;
Emergency order means an order of the Administrator issued pursuant to 49 U.S.C. 44709, which recites that an emergency exists and that safety in air commerce or air transportation and the public interest require the immediate effectiveness of such order;
Flight engineer means a person who holds a flight engineer certificate issued under Part 63 of Title 14 of the Code of Federal Regulations;
Initial decision means the law judge's decision on the issue or issues remaining for disposition at the close of a hearing;
Law judge means the administrative law judge assigned to hear and preside over the respective proceeding;
Mechanic means a person who holds a mechanic certificate issued under Part 65 of Title 14 of the Code of Federal Regulations;
Order means the document (sometimes also termed the complaint) by which the Administrator seeks to amend, modify, suspend or revoke a certificate, or impose a civil penalty;
Petition for review means a petition filed pursuant to 49 U.S.C. 44703 for review of the Administrator's denial of an application for issuance or renewal of an airman certificate;
Petitioner means a person who has filed a petition for review;
Pilot means a person who holds a pilot certificate issued under Part 61 of Title 14 of the Code of Federal Regulations;
Repairman means a person who holds a repairman certificate issued under Part 65 of Title 14 of the Code of Federal Regulations;
Respondent means the holder of a certificate who has appealed to the Board from an order of the Administrator amending, modifying, suspending or revoking a certificate, or imposing a civil penalty.
(b) Terms defined in 49 U.S.C. Chapters 11, 447 and 463 are used as so defined.
The provisions of this part govern all air safety proceedings, including proceedings before a law judge on petition for review of the denial of any airman certificate (including a medical certificate), or on appeal from any order of the Administrator amending, modifying, suspending or revoking a certificate. The provisions of this part also govern all proceedings on appeal from an order of the Administrator imposing a civil penalty on a flight engineer, mechanic, pilot or repairman, or a person acting in such capacity. All proceedings on appeal to the Board from any initial decision or order of a law judge are also governed by this part.
In addition to sequential numbering of cases as received, each case formally handled by the Board will receive a letter prefix. These letter prefixes reflect the case type: “SE” for safety enforcement (certificate suspension/revocation) cases; “SM” (safety medical) for cases involving denials of medical certification; “CD” for cases involving non-medical certificate denials; “SR” for cases involving safety registration issues under 49 U.S.C. 44101 et seq.; “CP” for cases involving the imposition of civil penalties; “NA” for cases in which a petition for review or appeal is not accepted because of a patent procedural deficiency; and “EAJA” for cases involving applications for fees and expenses under the Equal Access to Justice Act, governed by Part 826.
Subpart B General Rules Applicable to Petitions for Review, Appeals to the Board, and Appeals From Law Judges Initial Decisions and Appealable Orders
(a) Any party to a proceeding may appear and be heard in person, or by an attorney or other representative designated by that party. Upon hearing, and for good cause shown, the Board may suspend or bar any person from practicing before it.
(b) Any person appearing in person 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.
(c) Any person who submits data or evidence in a proceeding governed by this part may, by timely request, procure a copy of any document submitted by him or her, or a copy of any transcript made of his or her testimony, on payment of reasonable costs. Original documents, data or evidence may be retained by a party upon permission of the law judge or the Board, upon substitution of a copy thereof.
(d) Any party to a proceeding who is represented by an attorney or representative shall notify the Board of the name, address and telephone number of that attorney or representative. In the event of a change in representation, the party shall notify the Board (in the manner provided in § 821.7) and the other parties to the proceeding (pursuant to § 821.8) before the new attorney or representative may participate in the proceeding in any way.
(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., Room 4704, 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.
(2) Subsequent to the filing of a notice of appeal from a law judge's initial decision or appealable order, the issuance of a decision permitting an Start Printed Page 22627interlocutory 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., Room 6401, Washington, DC 20594.
(3) Documents shall be filed by personal delivery, by U.S. Postal Service first-class mail or by overnight delivery service. Except as specifically provided in Subpart I (governing emergency proceedings), facsimile filing is limited. Documents to be filed with a law judge or the Case Manager may be transmitted by facsimile, but such filing must be followed, no later than the next business day, by transmission of the original by personal delivery, first-class mail or overnight delivery service. Facsimile filing of documents to be filed with the Office of General Counsel is not permitted unless specifically authorized under Subpart I or requested by that office.
(4) Documents shall be deemed filed on the date of personal delivery; on the send date shown on the facsimile (where facsimile service is permitted under paragraph (a)(3) of this section or Subpart I); 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.
(b) Number of copies. Service on the Board of petitions for review, appeals from orders of the Administrator, and notices of appeal from law judges' initial decisions and appealable orders shall be by executed original and 3 copies. Service of all other documents shall be by executed original and one copy. Copies need not be signed, but the name of the person signing the original shall be shown thereon.
(c) Form. (1) Petitions for review, appeals to the Board from orders of the Administrator, and notices of appeal from law judges' initial decisions and appealable orders may be in the form of a letter signed by the petitioner or appealing party, and shall be typewritten or in legible handwriting.
(2) Documents filed with the Board consisting of more than one page may be affixed only in the upper left-hand corner by staple or clip, and shall not be bound or hole-punched. Any document failing to comply with this requirement is subject to being returned to the filing party.
(d) Content. Each document filed with the Board shall contain a concise and complete statement of the facts relied upon, and the relief sought, by the filing party.
(e) Subscription. The original of every document filed shall be signed by the filing party, or by that party's attorney or other representative.
(f) Designation of person to receive service. The initial document filed by a party in a proceeding governed by this part 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.
(g) To whom directed. All motions, requests and documents submitted in connection with petitions for review and appeals to the Board from orders of the Administrator shall designate, and be addressed to, the law judge to whom the proceeding has been assigned, if any. If the proceeding has not yet been assigned to a law judge, the document shall bear the designation “unassigned,” and shall be addressed to the Case Manager. All motions, requests and documents submitted subsequent to the filing of a notice of appeal from a law judge's initial decision or appealable order, or a decision permitting an interlocutory appeal, or after the expiration of the period within which an appeal from the law judge's initial decision or appealable order may be filed, shall be addressed to the Board's General Counsel.
(a) Who must be served. (1) Copies of all documents filed with the Board must be 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, personal service, etc.)]
[List names and addresses of all persons served]
Dated at __, this ____day of __ 20__
For (on behalf of)
(2) Service shall be made on the person designated in accordance with § 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 the method prescribed in § 821.7(a)(3) for the filing of documents with the Board.
(2) Notices of hearing, written initial decisions, law judges' appealable orders and Board orders on appeal shall be served by the Board on parties other than the Administrator by certified mail. Such documents may be served on the Administrator by first-class mail or facsimile. The Board may serve all other documents on the parties by first-class mail or facsimile.
(c) Where service shall be made. Except for personal service, parties shall be served at the address appearing in the official record. If no address for service on the Administrator is designated in the record, documents shall be addressed for service to the Office of Chief Counsel, 800 Independence Avenue, SW., Washington, DC 20591. 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 § 821.7(f); or
(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.
(e) Date of service. The date of service shall be determined in the same manner as the filing date is determined under § 821.7(a)(4).
(a) Intervention. Any person may move for leave to intervene in a proceeding, and may become a party thereto, if it is found that such person has a property, financial or other legitimate interest that will not be adequately represented by the existing parties, and that such intervention will not unduly broaden the issues or delay the proceeding. Except for good cause shown, no motion for leave to intervene will be entertained if filed less than 15 days prior to the hearing. The extent to which an intervenor may participate in Start Printed Page 22628the proceeding is wholly within the law judge's discretion.
(b) Amicus curiae briefs. A brief of amicus curiae in a matter on appeal from a law judge's initial decision or appealable order may be filed, if accompanied by written consent of all the parties, or by leave of the General Counsel if, in his or her opinion, the brief will not unduly broaden the matters at issue or prejudice any party to the proceeding. A brief may be conditionally filed with motion for leave. The motion for leave shall identify the interest of the movant and shall state the reasons why a brief of amicus curiae is desirable. Such brief and motion shall be filed within the briefing time allowed the party whose position the brief would support, unless good cause for late filing is shown, in which event the General Counsel may provide an opportunity for response in determining whether to accept the amicus brief.
In computing any period of time prescribed or allowed by this part, by notice or order of a law judge or the Board, or by any applicable statute, the date of the act, event or default after which the designated period of time begins to run is not to be included in the computation. The last day of the period so computed is to be included unless it is a Saturday, Sunday or legal holiday for the Board, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday. In all cases, Saturdays, Sundays and legal holidays for the Board shall be included in the computation of time, except they shall not be included in computations of time respecting petitions for review of determinations as to the existence of emergencies under § 821.54.
(a) On written request filed with the Board and served on all other parties, or oral request with any extension granted confirmed in writing and served on all other parties by the requestor, and for good cause shown, the law judge or the Board may grant an extension of time to file any document; however, no extension of time will be granted for the filing of a document to which a statutory time limit applies.
(b) Extensions of time to file petitions for reconsideration shall not be granted upon a showing of good cause, but only in extraordinary circumstances.
(c) The General Counsel is authorized to grant unopposed extensions of time on timely oral request without a showing of good cause in cases on appeal to the Board from a law judge's initial decision or appealable order. Written confirmation of such a grant of extension of time must promptly be sent by the requesting party to the Board and served on all other parties to the proceeding.
(a) Amendment. At any time more than 15 days prior to the hearing, a party may amend its pleadings by filing an amended pleading with the Board and serving copies thereof on all other parties. After that time, amendment shall be allowed only at the discretion of the law judge. In the case of amendment of an answerable pleading, the law judge shall allow any adverse party a reasonable time to object or answer. Amendments to complaints shall be consistent with the requirements of 49 U.S.C. 44709(c) and 44710(c).
(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.
Waivers of any rights provided by statute or regulation shall either be in writing or by stipulation made at the hearing and entered into the record, and shall set forth the precise terms and conditions of the waiver.
(a) General. Any application to a law judge or to the Board for an order or ruling not otherwise provided for in this part shall be by motion. Prior to the assignment of the proceeding to a law judge, all motions shall be addressed to the Case Manager. Thereafter, and prior to the expiration of the period within which an appeal from the law judge's initial decision may be filed, all motions shall be addressed to the law judge. At all other times, motions shall be addressed to the General Counsel.
(b) Form and content. Unless made during a hearing, motions shall be made in writing, shall state with particularity the grounds for the relief requested, and shall be accompanied by affidavits or other evidence relied upon. Motions introduced during a hearing may be made orally on the record, unless the law judge directs otherwise.
(c) Replies to motions. Except when a motion is made during a hearing, any party may file a reply, accompanied by such affidavits or other evidence as that party desires to rely upon, within 15 days after the date of service of the motion on that party. Upon notice to the parties, the law judge or the Board may, where appropriate, set a shorter time for filing a reply. Where a motion is made during a hearing, the reply may be made at the hearing, or orally or in writing within such time as the law judge may fix.
(d) Oral argument; briefs. No oral argument will be heard on a motion unless the law judge or the Board directs otherwise.
(e) Effect of pendency of motions. Except as provided in §§ 821.17(a) and 821.18(a), the filing or pendency of a motion shall not automatically alter or extend the time fixed in this part (or any extension thereof previously granted) for the parties to take any actions.
A motion requesting that a Board Member disqualify himself or herself from participating in a proceeding under this part shall be filed in writing with the Board.
Rulings of law judges on motions which are not dispositive of the proceeding as a whole may not be appealed to the Board prior to its consideration of the entire proceeding, except in extraordinary circumstances and with the consent of the law judge who made the ruling. Interlocutory appeals shall be disallowed unless the law judge finds, either orally on the record or in writing, that to allow such an appeal is necessary to prevent substantial detriment to the public interest or undue prejudice to a party. If an interlocutory appeal is allowed, any party may file a brief with the Board within such time as the law judge directs. No oral argument will be heard unless the Board directs otherwise.
(a) Motions to dismiss petition for review or complaint. A motion to dismiss a petition for review or a complaint may be filed in lieu of an answer, within the time limit for filing an answer set forth in § 821.24(c) or § 821.31(b). If such motion is not granted in its entirety, the answer shall be filed within 10 days after service of the law judge's order on the motion.
(b) Motions to dismiss for lack of jurisdiction. A motion to dismiss on the ground that the Board lacks jurisdiction may be made by any party at any time.
(c) Motions for judgment on the pleadings. A party may file a motion for Start Printed Page 22629judgment on the pleadings on the basis that no answer has been filed, or that the pleadings disclose that there are no material issues of fact to be resolved and that party is entitled to judgment as a matter of law.
(d) Motions for summary judgment. A party may file a motion for summary judgment on the basis that the pleadings and other supporting documentation establish that there are no material issues of fact to be resolved and that party is entitled to judgment as a matter of law.
(e) Appeals of dismissal, judgment on the pleadings and summary judgment orders. When a law judge grants a motion to dismiss, a motion for judgment on the pleadings or a motion for summary judgment, and terminates the proceeding without a hearing, an appeal of such order to the Board may be filed pursuant to the provisions of § 821.47. When a motion to dismiss, a motion for judgment on the pleadings or a motion for summary judgment is granted in part, § 821.16 applies.
(a) A party may, in lieu of an answer, file a motion requesting that the petitioner's statement of reasons and supporting facts in a petition for review or the Administrator's allegations of fact in a complaint be made more definite and certain. The motion shall cite the defects complained of and the details sought. If the motion is granted and the law judge's order is not complied with within 15 days after service thereof, the law judge shall strike the portion or portions of the petition for review or complaint to which the motion is directed. If the motion is denied, the moving party shall file an answer within 10 days after service of the law judge's order on the motion.
(b) A party may file a motion to clarify an answer in the event that the answer fails to respond clearly to the petition for review or the complaint.
(a) Depositions. After a petition for review or a complaint is filed, any party may take the testimony of any person, including a party, by deposition, upon oral examination or written questions, without seeking prior Board approval. Reasonable notice shall be given in writing to the other parties, stating the name of the witness and the time and place of the taking of the deposition. A copy of any notice of deposition shall be served on the law judge to whom the proceeding has been assigned or, if no law judge has been assigned, on the Case Manager. In other respects, the taking of any deposition shall be in compliance with the provisions of 49 U.S.C. 46104(c).
(b) Exchange of information by the parties. At any time before the hearing, at the request of any party, the parties may exchange information, such as witness lists, exhibit lists, curricula vitae and bibliographies of expert witnesses, and other pertinent data. Any party may also use written interrogatories, requests for admissions and other discovery tools. The requesting party shall set the time for compliance with the request, which shall be reasonable and give due consideration to the closeness of the hearing, especially in emergency proceedings governed by Subpart I. Copies of discovery requests and responses shall be served on the law judge to whom the proceeding has been assigned or, if no law judge has been assigned, on the Case Manager. In the event of a dispute, either the assigned law judge or another law judge delegated this responsibility (if a law judge has not yet been assigned or if the assigned law judge is unavailable) may issue an appropriate order, including an order directing compliance with any ruling previously made with respect to discovery.
(c) Use of the Federal Rules of Civil Procedure. Those portions of the Federal Rules of Civil Procedure that pertain to depositions and discovery may be used as a general guide for discovery practice in proceedings before the Board, where appropriate. The Federal Rules and the case law that construes them shall be considered by the Board and its law judges as instructive, rather than controlling.
(d) Failure to provide or preserve evidence. The failure of any party to comply with a law judge's order compelling discovery, or to cooperate with a timely request for the preservation of evidence, may result in a negative inference against that party with respect to the matter sought and not provided or preserved, a preclusion order, dismissal or other relief deemed appropriate by the law judge.
(a) Subpoenas. Except as provided in paragraph (c) of this section, subpoenas requiring the attendance of witnesses, or the production of documentary or tangible evidence, for the purpose of taking depositions or at a hearing, may be issued by the presiding law judge (or the chief law judge, if the proceeding has not been assigned to a law judge) upon application by any party. The application shall show the general relevance and reasonable scope of the evidence sought. Any person upon whom a subpoena is served may, within 7 days after service of the subpoena, but in any event prior to the return date thereof, file with the law judge who issued the subpoena a motion to quash or modify the subpoena, and such filing shall stay the effectiveness of the subpoena pending final action by the law judge on the motion.
(b) Witness fees. Witnesses shall be entitled to the same fees and expenses for mileage as are paid to witnesses in the courts of the United States. The fees and expenses shall be paid by the party at whose request the witness is subpoenaed or appears. The Board may decline to process a proceeding further should a party fail to compensate a witness pursuant to this paragraph.
(c) Board Members, officers and employees. In order to encourage a free flow of information to the Board's accident investigators, the Board disfavors the use of its personnel in enforcement proceedings. Therefore, the provisions of paragraph (a) of this section are not applicable to Board Members, officers and employees, or the production of documents in their custody. Applications for subpoenas requiring the attendance of such persons, or the production of such documents, must be addressed to the General Counsel, and shall set forth the need of the moving party for the testimony or documents sought, and a showing that such material is not now, and was not otherwise, reasonably available from other sources. Only upon the General Counsel's written approval for the issuance of a subpoena requiring a Board Member, officer or employee to provide testimony and/or to produce documents in connection with discovery or at a hearing may a law judge issue such a subpoena. The law judge shall not permit the testimony or documentary evidence provided by a Board Member, officer or employee to include any expression of opinion, or any account of statements of a party made during the Board's investigation of any accident.
Where a law judge or the Board intends to take official notice of a material fact not appearing in the evidence in the record, notice shall be given to all parties, who may within 10 days file a petition disputing that fact.
Subpart C—Special Rules Applicable to Proceedings Under 49 U.S.C. 44703
(a) Petition for review. Where the Administrator has denied an application for the issuance or renewal of an airman certificate, the applicant may file with the Board a petition for review of the Administrator's denial. The petition must be filed with the Board within 60 days after the date on which notice of the Administrator's denial was served on the petitioner.
(b) Form and content of petition. The petition may be in letter form. It shall identify the Administrator's certificate denial action, and contain a complete but concise statement of the reasons why the petitioner believes the certificate denial was erroneous.
(c) Answer to petition. The Administrator shall file an answer to the petition for review within 20 days after the date of service of the petition. The answer shall specifically address each of the reasons set forth in the petition as to why the petitioner believes the certificate denial was erroneous.
(d) Stay of proceeding pending request for special issuance (restricted) medical certificate. The Board lacks the authority to review requests for special issuance (restricted) medical certificates, or to direct that they be issued. Where a request for a special issuance certificate has been filed with the Administrator pursuant to the Federal Aviation Regulations, the Board will, upon the petitioner's written request, hold a petition for review of a denial of an unrestricted medical certificate in abeyance pending final action by the Administrator on the special issuance request, but for no longer than 180 days after the date on which the unrestricted medical certificate denial was issued.
(e) New evidence. Where review of a denial of an unrestricted medical certificate is at issue, if the petitioner has undergone medical testing or evaluation in addition to that already submitted or known to the Administrator, and wishes to introduce the results into the record, such new medical evidence must be served on the Administrator at least 30 days prior to the hearing. Absent good cause, failure to so timely serve the new medical evidence on the Administrator will result in the exclusion of such evidence from the record. The Administrator may amend his or her answer to respond to such new medical evidence within 10 days after the date on which he or she was served therewith.
In proceedings under 49 U.S.C. 44703, the burden of proof shall be upon the petitioner.
Upon motion by the Administrator within the time limit for filing an answer, a petition for review shall be dismissed for lack of standing in either of the following instances:
(a) If the petition seeks the issuance of the same type of certificate that was under an order of suspension on the date of the denial; or
(b) If the petition seeks the issuance of the same type of certificate that had been revoked within one year of the date of the denial, unless the order revoking such certificate provides otherwise.
Subpart D—Special Rules Applicable to Proceedings Under 49 U.S.C. 44709
(a) Appeal. Where the Administrator has issued an order amending, modifying, suspending or revoking a certificate, the affected certificate holder (respondent) may file with the Board an appeal from the Administrator's order. The respondent shall simultaneously serve a copy of the appeal on the Administrator. The appeal must be filed with the Board within 20 days after the date on which the Administrator's order was served on the respondent, except as provided with respect to emergency and other immediately effective orders under § 821.53(a).
(b) Form and content of appeal. The appeal may be in letter form. It shall identify the certificate or certificates affected and the Administrator's action from which the appeal is sought.
(c) Effect of filing timely appeal with the Board. Timely filing with the Board of an appeal from an order of the Administrator shall postpone the effective date of the order until final disposition of the appeal by the law judge or the Board, except where the order appealed from is an emergency or other immediately effective order, in which case the effectiveness of the order will not be so stayed during the pendency of the appeal.
(a) Filing, time of filing and service on respondent. The order of the Administrator from which an appeal has been taken shall serve as the complaint. The Administrator shall (except as provided in § 821.55(a) with respect to emergency proceedings) file the complaint with the Board within 10 days after the date on which he or she was served with the appeal by the respondent, and shall simultaneously serve a copy of the complaint on the respondent. If the Administrator has determined that the respondent lacks qualification to be a certificate holder, the order filed as the complaint, or an accompanying statement, shall identify the pleaded factual allegations on which this determination is based.
(b) Answer to complaint. The respondent shall (except as provided in § 821.55(b) with respect to emergency proceedings) file with the Board an answer to the complaint within 20 days after the date on which the complaint was served by the Administrator, and shall simultaneously serve a copy of the answer on the Administrator. Failure by the respondent to deny the truth of any allegation or allegations in the complaint may be deemed an admission of the truth of the allegation or allegations not answered. The answer shall also identify any affirmative defenses that the respondent intends to raise at the hearing. The answer may be amended to include affirmative defenses in accordance with the provisions of § 821.12(a).
In proceedings under 49 U.S.C. 44709, the burden of proof shall be upon the Administrator.
Where the complaint states allegations of offenses which occurred more than 6 months prior to the Administrator's advising the respondent as to reasons for proposed action under 49 U.S.C. 44709(c), the respondent may move to dismiss such allegations as stale pursuant to the following provisions:
(a) In those cases where the complaint does not allege lack of qualification of the respondent:
(1) The Administrator shall be required to show, by reply filed within 15 days after the date of service of the respondent's motion, that good cause existed for the delay in providing such advice, or that the imposition of a sanction is warranted in the public interest, notwithstanding the delay or the reasons therefor.
(2) If the Administrator does not establish good cause for the delay, or for the imposition of a sanction in the public interest notwithstanding the delay, the law judge shall dismiss the stale allegations and proceed to adjudicate the remaining portion of the complaint, if any. Start Printed Page 22631
(b) In those cases where the complaint alleges lack of qualification of the respondent, the law judge shall first determine whether an issue of lack of qualification would be presented if all of the allegations, stale and timely, are assumed to be true. If so, the law judge shall deny the respondent's motion. If not, the law judge shall proceed as in paragraph (a) of this section.
Subpart E—Law Judges
(a) Assignment of law judge and duration of assignment. The chief law judge shall assign a law judge to preside over each proceeding. Until such assignment, motions, requests and documents shall be addressed to the Case Manager for handling by the chief law judge, who may handle these matters personally or delegate them to other law judges for decision. After assignment of a proceeding to a law judge, all motions, requests and documents shall be addressed to that law judge. The authority of the assigned law judge shall terminate upon the expiration of the period within which appeals from initial decisions or appealable orders may be filed, or upon the law judge's withdrawal from the proceeding.
(b) Powers of law judge. Law judges shall have the following powers:
(1) To give notice of, and to hold, prehearing conferences and hearings, and to consolidate proceedings which involve a common question of law or fact;
(2) To hold conferences, before or during the hearing, for the settlement or simplification of issues;
(3) To issue subpoenas, and to take depositions or cause depositions to be taken;
(4) To dispose of procedural requests or similar matters;
(5) To rule on motions;
(6) To regulate the conduct of hearings;
(7) To administer oaths and affirmations;
(8) To examine witnesses;
(9) To receive evidence and rule upon objections and offers of proof; and
(10) To issue initial decisions.
(c) Disqualification. A law judge shall withdraw from a proceeding if, at any time, he or she deems himself or herself disqualified. If the law judge does not withdraw, and if an appeal from the law judge's initial decision is filed, the Board will, on motion of a party, determine whether the law judge should have withdrawn and, if so, order appropriate relief.
(a) Time and location of hearing. The law judge to whom the proceeding is assigned (or the chief judge) shall set a reasonable date, time and place for the hearing. Except as provided with respect to emergency proceedings in § 821.56(a), a written notice of hearing shall be served on the parties at least 30 days in advance of the hearing. The law judge may set the hearing for a date fewer than 30 days after the date of the issuance of the notice of hearing if all of the parties consent to an earlier hearing date. In setting the date of the hearing, due regard shall be given to the parties' discovery needs. In setting the place of the hearing, due regard shall be given to the location of the subject incident, the convenience of the parties and their witnesses, and the conservation of Board funds. Another relevant factor in determining the place of the hearing is the convenience of the hearing site to scheduled transportation service. Only in the most extraordinary circumstances may consideration be given to locating a hearing in a foreign country.
(b) Hearing in several sessions. Where appropriate, the law judge may hold a hearing in more than one session, at the same or different locations.
Each party shall have the right to present a case-in-chief, or defense, by oral and documentary evidence, to submit evidence in rebuttal, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. Hearsay evidence (including hearsay within hearsay, where there are acceptable circumstantial indicia of trustworthiness) shall be admissible. All material and relevant evidence should be admitted, but the law judge may exclude unduly repetitious evidence.
At the hearing, the law judge shall give the parties adequate opportunity for the presentation of arguments in support of, or in opposition to, motions, objections and proposed rulings. Prior to the issuance of the initial decision, the parties shall be afforded a reasonable opportunity to submit for consideration proposed findings and conclusions, and supporting reasons therefor.
The transcript of testimony and exhibits, together with all papers, requests and rulings filed in the proceeding before the law judge, shall constitute the exclusive record of the proceeding. Copies of the transcript may be obtained by any party upon payment of the reasonable cost thereof. A copy of the transcript may be examined at the National Transportation Safety Board, Office of Administrative Law Judges, Public Docket Section.
Subpart G—Initial Decision
(a) Written or oral decision. The law judge may render his or her initial decision orally at the close of the hearing, or in writing at a later date, except as provided with respect to emergency proceedings in § 821.56(c).
(b) Content. The initial decision shall include findings and conclusions upon all material issues of fact, credibility of witnesses, law and discretion presented on the record, together with a statement of the reasons therefor.
(c) Furnishing parties with, and issuance date of, oral decision. If the initial decision is rendered orally, a copy thereof, excerpted from the hearing transcript, shall be furnished to the parties by the Office of Administrative Law Judges. Irrespective of the date on which the copy of the decision is transmitted to the parties, the issuance date of the decision shall be the date on which it was orally rendered.
If no appeal from the law judge's initial decision or appealable order is timely filed, the initial decision or order shall become final with respect to the parties, but shall not be binding precedent for the Board. The filing of a timely notice of appeal with the Board shall stay the effectiveness of the law judge's initial decision or order, unless the basis for the decision or order is that the Board lacks jurisdiction.
Subpart H—Appeal From Initial Decision
(a) Time within which to file notice of appeal. A party may appeal from a law judge's initial decision or appealable order by filing with the Board, and simultaneously serving on the other parties, a notice of appeal, within 10 days after the date on which the oral initial decision was rendered or the written initial decision or appealable order was served (except as provided in § 821.57(a) with respect to emergency proceedings). At any time before the time limit for filing an appeal from an initial decision or appealable order has passed, the law judge may, for good Start Printed Page 22632cause, reopen the matter on notice to the parties.
(b) Request for reconsideration of law judge's initial decision or order. A law judge may not reconsider an initial decision or appealable order after the time for appealing to the Board from the decision or order has expired, or after an appeal has been filed with the Board. However, a timely request for reconsideration by the law judge of the initial decision or appealable order, filed before an appeal to the Board is taken, will stay the deadline for filing an appeal until 10 days after the date on which the law judge serves his or her decision on the reconsideration request. For the purpose of this paragraph, if a request for reconsideration and a notice of appeal are filed on the same day, the reconsideration request will be deemed to have been filed first.
(a) Appeal brief. Except as provided in § 821.57(b) with respect to emergency proceedings, each appeal must be perfected, within 50 days after the date on which the oral initial decision was rendered, or 30 days after the date on which the written initial decision or appealable order was served, by the filing, and simultaneous service on the other parties, of a brief in support of the appeal. An appeal may be dismissed by the Board, either on its own initiative or on motion of another party, where a party who has filed a notice of appeal fails to perfect the appeal by filing a timely appeal brief.
(b) Form and content of appeal brief. (1) In addition to the general form requirements for documents set forth in § 821.7(c)(2), the appeal brief must be typewritten, double-spaced, on 81/2-by-11 inch paper. The appeal brief shall set forth the name, address and telephone number of the party, or the attorney or other representative filing the brief on the party's behalf. No appeal brief may contain more than 35 pages of text without prior leave of the General Counsel, upon a showing of good cause.
(2) The appeal brief shall enumerate the appealing party's objections to the law judge's initial decision or appealable order, and shall state the reasons for such objections, including any legal precedent relied upon in support thereof.
(3) Any error contained in the initial decision which is not objected to in the appeal brief may be deemed waived.
(c) Reply brief. Any other party to the proceeding may file a brief in reply to the appeal brief within 30 days after the date on which the appeal brief was served on that party (except as provided in § 821.57(b) with respect to emergency proceedings). A copy of the reply brief shall simultaneously be served on the appealing party and any other parties to the proceeding. The form requirements governing the appeal brief set forth in paragraph (b)(1) also apply to the reply brief.
(d) Other filings. Subsequent to the filing of the appeal and reply briefs, the parties may file citations to supplemental authorities. This procedure may be used only for identifying new and relevant legal authority, and not to correct omissions in briefing or to respond to a reply brief. No argument may be included with such a filing. Such filing shall include a reference to the page of the brief to which the cited legal authority pertains. Any response shall be filed within 10 days of the date of service of the supplemental filing, and shall be similarly limited in scope. With these exceptions, the parties may make no other submissions, except by leave of the Board, upon on a showing of good cause.
(e) Oral argument. Oral argument before the Board will not be held in proceedings under this part unless the Board, on motion of a party or on its own initiative, determines that oral argument is needed.
(a) On appeal, the Board will consider only the following issues:
(1) Are the findings of fact each supported by a preponderance of reliable, probative and substantial evidence?
(2) Are conclusions made in accordance with law, precedent and policy?
(3) Are the questions on appeal substantial?
(4) Have any prejudicial errors occurred?
(b) If the Board determines that the law judge erred in any respect, or that his or her initial decision or order should be changed, the Board may make any necessary findings and may issue an order in lieu of the law judge's initial decision or order, or may remand the proceeding for any such purpose as the Board may deem necessary.
(a) General. Any party to a proceeding may petition the Board for rehearing, reargument, reconsideration or modification of a Board order on appeal from a law judge's initial decision or order. An initial decision or appealable order of a law judge that has become final because no timely appeal was taken therefrom may not be the subject of a petition under this section.
(b) Timing and service. The petition must be filed with the Board, and simultaneously served on the other parties, within 30 days after the date of service of the Board's order on appeal from the law judge's initial decision or order.
(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.
(d) Repetitious petitions. Repetitious petitions will not be entertained by the Board, and will be summarily dismissed.
(e) Reply to petition. Any other party to the proceeding may file a reply to the petition within 15 days after the date on which the petition was served on that party. A copy of such reply shall simultaneously be served on the petitioner and any other parties to the proceeding.
(f) Stay of effective date of Board's order. The filing of a petition under this section shall operate to stay the effective date of the Board's order, unless the Board directs otherwise.
Subpart I—Special Rules Applicable to Proceedings Involving Emergency and Other Immediately Effective Orders
(a) Applicability. This subpart shall apply to any order issued by the Administrator under 49 U.S.C. 44709 as an emergency order, as an order not designated as an emergency order but later amended to be an emergency order, and any order designated as immediately effective or effective immediately.
(b) Effective date of emergency. The procedure set forth herein shall apply as of the date on which written advice of the emergency character of the Administrator's order is received and docketed by the Board.
(c) Computation of time. Time shall be computed in accordance with the provisions of § 821.10.
(d) Waiver. Except as provided in § 821.54(f), or where the law judge or the Board determines that it would unduly burden another party or the Start Printed Page 22633Board, a certificate holder (respondent) affected by an emergency or other immediately effective order of the Administrator may, at any time after filing an appeal from such an order, waive the applicability of the accelerated time limits of this subpart; however, such a waiver shall not serve to lengthen any period of time for doing an act prescribed by this subpart which expired before the date on which the waiver was made.
(a) Time within which to file appeal. An appeal from an emergency or other immediately effective order of the Administrator must be filed within 10 days after the date on which the Administrator's order was served on the respondent. The respondent shall simultaneously serve a copy of the appeal on the Administrator.
(b) Form and content of appeal. The appeal may be in letter form. It shall identify the certificate or certificates affected and indicate that an emergency or other immediately effective order of the Administrator is being appealed.
(a) Time within which to file petition. A respondent may, within 2 days after the date of receipt of an emergency or other immediately effective order of the Administrator, file with the Board a petition for review of the Administrator's determination that an emergency, requiring the order to be effective immediately, exists. This 2-day time limit is statutory and the Board has no authority to extend it. If the respondent has not previously filed an appeal from the Administrator's emergency or other immediately effective order, the petition shall also be considered a simultaneously filed appeal from the order under § 821.53.
(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 petition must be filed with the Board by overnight delivery service or facsimile and simultaneously served on the Administrator by the same means.
(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. Such reply must be filed with the Board by overnight delivery service or facsimile and simultaneously served on the respondent by the same means. 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.
(d) Hearing. 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 set forth in § 821.61, solicit from the parties additional information to supplement that previously provided by the parties.
(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, 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.
(f) Effect of law judge's ruling. If the law judge grants the petition, the effectiveness of the Administrator's order shall be stayed until final disposition of the respondent's appeal by a law judge or by the Board. In such cases, the remaining provisions of this subpart (§§ 821.55-821.57) shall continue to apply, unless the respondent, with the Administrator's consent, waives their applicability. If the petition is denied, the Administrator's order shall remain in effect, and the remaining provisions of this subpart shall continue to apply, unless their applicability is waived by the respondent. The law judge's ruling on the petition shall be final, and is not appealable to the Board. However, in the event of an appeal to the Board from a law judge's decision on the merits of the emergency or other immediately effective order, the Board may, at its discretion, note, in its order disposing of the appeal, its views on the law judge's ruling on the petition, and such views shall serve as binding precedent in all future cases.
(a) Complaint. In proceedings governed by this subpart, the Administrator's complaint shall be filed by overnight delivery service or facsimile, and simultaneously served on the respondent by the same means, 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.
(b) Answer to complaint. The respondent shall file with the Board an answer to the complaint within 5 days after the date on which the complaint was served by the Administrator, and shall simultaneously serve a copy of the answer on the Administrator. Failure by the respondent to deny the truth of any allegation or allegations in the complaint may be deemed an admission of the truth of the allegation or allegations not answered. The answer shall also identify any affirmative defenses that the respondent intends to raise at the hearing.
(c) Motion to dismiss and motion for more definite statement. In proceedings governed by this subpart, 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) Discovery. Discovery is authorized in proceedings governed by this subpart. Given the short time available for discovery, the parties shall cooperate to ensure timely completion of the discovery process prior to the hearing. Discovery requests shall be served by the parties as soon as possible. A motion to compel discovery should be expeditiously filed where any dispute arises, and the law judge shall promptly rule on such a motion. Time limits for compliance with discovery requests shall be set by the parties so as to accommodate, and not conflict with, the accelerated adjudication schedule set forth in this subpart. The provisions of § 821.19 shall apply, modified as Start Printed Page 22634necessary to meet the exigencies of this subpart's accelerated timeframes.
(a) Notice of hearing. Within 3 days after the date on which the Board receives the Administrator's complaint, or immediately upon the issuance of a law judge's order disposing of a petition for review of the Administrator's emergency determination, if later, the parties shall be served with a written notice of hearing, setting forth the date, time and place of the hearing. The hearing shall be set for a date no later than 30 days after the date on which the respondent's appeal was received and docketed. To the extent that they are not inconsistent with this section, the provisions of § 821.37(a) shall also apply.
(b) Conduct of hearing. The provisions of §§ 821.38, 821.39 and 821.40, concerning the taking of evidence, argument and submissions by the parties, and the composition of the hearing record, shall apply to proceedings governed by this subpart.
(c) Initial decision and effect of initial decision or appealable order. The law judge's initial decision shall be made orally on the record at the termination of the hearing. The provisions of § 821.42, concerning the content of the initial decision, the furnishing of copies of the initial decision to the parties and the issuance date of the initial decision, and the provisions of § 821.43, concerning the effect of the law judge's initial decision or appealable order and any appeal therefrom, shall apply to proceedings governed by this subpart.
(a) Time within which to file notice of appeal. A party may appeal from a law judge's initial decision or appealable order by filing with the Board, and simultaneously serving on the other parties, a notice of appeal, within 2 days after the date on which the initial decision was orally rendered or the appealable order was served. The time limitations for the filing of documents respecting appeals governed by this subpart will not be extended by reason of the unavailability of the hearing transcript.
(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. Unless otherwise authorized by the Board, all briefs in connection with appeals governed by this subpart must be filed and served by overnight delivery service, or by facsimile confirmed by personal or first-class mail delivery of the original. Aside from the time limits and methods of filing and service specifically mandated by this paragraph, the provisions of § 821.48 shall apply.
(c) Issues on appeal. The provisions of § 821.49(a) shall apply in proceedings governed by this subpart.
(d) Petition for rehearing, reargument, reconsideration or modification of order. The only petitions for rehearing, reargument, reconsideration or modification of an order which the Board will entertain in proceedings governed by this subpart are those based on the ground that new matter has been discovered. Such petitions must:
(1) Set forth the new matter;
(2) Contain affidavits of prospective witnesses, authenticated documents, or both, or an explanation of why such substantiation is unavailable; and
(3) Contain a statement explaining 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.
Subpart J—Ex Parte Communications
As used in this subpart:
Board decisional employee means a Board Member, law judge or other employee who is, or who may reasonably be expected to be, involved in the decisional process of the proceeding;
Ex parte communication means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but does not include requests for status reports on any matter or proceeding covered by this part.
(a) The prohibitions of this section shall apply from the time a petition for review or an appeal is filed unless the person responsible for the communication has knowledge that a petition for review or an appeal will be filed, in which case the prohibitions shall apply at the time of the acquisition of such knowledge. Such prohibitions shall continue until the time of the Board's final disposition of the petition, appeal and any ancillary matters, such as the adjudication of a claim for fees and expenses under the Equal Access to Justice Act.
(b) Except to the extent required for the disposition of ex parte matters as authorized by law:
(1) No interested person outside the Board shall make or knowingly cause to be made to any Board decisional employee an ex parte communication relevant to the merits of the proceeding;
(2) No Board decisional employee shall make or knowingly cause to be made to any interested person outside the Board an ex parte communication relevant to the merits of the proceeding. Ex parte communications solely relating to matters of Board procedure or practice are not prohibited by this section.
A Board decisional employee who receives, makes or knowingly causes to be made a communication prohibited by § 821.61 shall place in the public record of the proceeding:
(a) All such written communications;
(b) Memoranda stating the substance of all such oral communications; and
(c) All written responses, and memoranda stating the substance of all oral responses, to the communications described in paragraphs (a) and (b) of this section.
(a) Upon receipt of a communication made or knowingly caused to be made by a party in violation of § 821.61, the presiding law judge (or the chief law judge, if the proceeding has not been assigned to a law judge) or the Board may, to the extent consistent with the interests of justice and the policy of the underlying statutes it administers, require the party to show cause why its claim or interest in the proceeding should not be dismissed, denied, disregarded or otherwise adversely affected on account of such violation.
(b) The Board may, to the extent consistent with the interest of justice and the policy of the underlying statutes it administers, consider a violation of § 821.61 sufficient grounds for a decision adverse to a party who has knowingly committed or knowingly caused such a violation to occur. Alternatively, the Board may impose a sanction on the party's attorney or representative, including suspending or barring the attorney or representative Start Printed Page 22635from practicing before it, where such action would be appropriate and penalizing the party represented would not be in the interest of justice.
Subpart K—Judicial Review of Board Orders
(a) General. Judicial review of a final order of the Board may be sought as provided in 49 U.S.C. 1153 and 46110 by the filing of a petition for review with the appropriate United States Court of Appeals within 60 days of the date of entry (i.e., service date) of the Board's order. Under the applicable statutes, any party may appeal the Board's decision. The Board is not a party in interest in such appellate proceedings and, accordingly, does not typically participate in the judicial review of its decisions. In matters appealed by the Administrator, the other parties should anticipate the need to make their own defense.
(b) Stay pending judicial review. No request for a stay pending judicial review will be entertained if it is received by the Board after the effective date of the Board's order (see § 821.50(b)). If a stay action is to be timely, any request must be filed sufficiently in advance of the effective date of the Board's order to allow for a reply and Board review.
Dated: April 18, 2003.
Ellen G. Engleman,
1. We are not persuaded by the Administrator's suggestion that a petitioner for relief from an emergency determination is essentially a proponent of a rule who, under the Administrative Procedures Act (APA), bears a burden of proof. See 5 U.S.C. 556. It seems to us that a more consistent reading of that statutory provision would make the Administrator the proponent of a rule, by virtue of his or her issuance of a certificate order. We would point out, moreover, that the APA does not contemplate a process in which a sanction can be imposed before the relevant charges have been established on a hearing record.Back to Citation
2. So as to afford the Administrator ample transition time to adapt her orders accordingly, and avoid impeding her expeditious processing of matters already under investigation, the final rule will become effective 60 days from this date.Back to Citation
[FR Doc. 03-10559 Filed 4-28-03; 8:45 am]
BILLING CODE 7533-01-P