[Federal Register Volume 65, Number 133 (Tuesday, July 11, 2000)]
[Rules and Regulations]
[Pages 42637-42641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-17417]
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NATIONAL TRANSPORTATION SAFETY BOARD
49 CFR Part 821
Rules of Practice Governing Board Review of Federal Aviation
Administration Emergency Determinations in Air Safety Enforcement
Proceedings
AGENCY: National Transportation Safety Board.
ACTION: Interim rule with request for comments.
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SUMMARY: The Administrator of the Federal Aviation Administration (FAA)
has the statutory authority to issue orders amending, modifying,
suspending, or revoking certain FAA-issued certificates, in the
interest of safety in air commerce or air transportation. Such actions
are appealable to the Board, and the filing of an appeal by the
affected certificate holder stays the effectiveness of the
Administrator's order, unless the Administrator determines that an
emergency, requiring the order to be effective immediately, exists.
Section 716 of the Aviation Investment and Reform Act for the 21st
Century confers on the Board the authority to review such emergency
determinations, which were not previously subject to administrative
review, and these interim rules provide procedures for that review.
Comments are invited and will be considered in the formulation of final
rules.
DATES: These interim rules are effective on July 11, 2000. Comments are
invited by July 26, 2000. Reply comments may be filed by August 10,
2000.
ADDRESSES: An original and two copies of any comments must be submitted
to: Office of General Counsel, National Transportation Safety Board,
Room 6401, 490 L'Enfant Plaza East, S.W., Washington, D.C. 20594,
Attention: Emergency Procedure Rules.
FOR FURTHER INFORMATION CONTACT: Ronald S. Battocchi, General Counsel,
(202) 314-6080.
SUPPLEMENTARY INFORMATION:
Background
The National Transportation Safety Board (NTSB) currently has
rules, at 49 CFR part 821, that govern practice and procedure in
certain air safety proceedings, including proceedings in which the FAA
Administrator seeks to amend, modify, suspend or revoke various FAA-
issued certificates or privileges. Under 49 U.S.C. 44709(d), such
certificate actions are reviewable on appeal to the Board by the
affected certificate holder. 49 U.S.C. 44709(e) provides that the
filing of such an appeal stays the effectiveness of the Administrator's
order, pending disposition of the appeal by the Board, unless the
Administrator determines that an emergency exists and that safety in
air commerce or air transportation requires the order to be effective
immediately. Prior to the enactment of the Aviation Investment and
Reform Act for the 21st Century (Pub. L. 106-181, signed into law April
5, 2000), the Administrator's emergency determinations were not subject
to administrative review. Section 716 of Public Law 106-181 expands the
Board's jurisdiction, by amending 49 U.S.C. 44709(e) to provide that a
person affected by the immediate effectiveness of an order, based on
the Administrator's finding of the existence of an emergency, may, not
later than 48 hours after receiving the order, petition the Board to
review that emergency determination, under procedures promulgated by
the Board. 49 U.S.C. 44709(e), as amended, further provides that the
Board shall dispose of the certificate holder's request for review of
the Administrator's emergency determination no later than five days
after the request is filed, and that, if the Board finds that an
emergency does not exist, the immediate applicability of the
Administrator's order shall be stayed. In light of the immediate
effectiveness of Public Law 106-181, the Board is issuing interim rules
to establish procedures for its review of the Administrator's emergency
determinations, without notice and comment.
Public Law 106-181 also amends the time period for the Board to
make final dispositions of appeals in all emergency cases. Under 49
U.S.C. 44709(e) prior to amendment, the Board had 60 days from the time
the Administrator advised it of the existence of an emergency (by
filing a complaint in response to the certificate holder's appeal) to
make its final disposition of the appeal, whereas 49 U.S.C. 44709(e),
as amended, requires a final disposition not later than 60 days after
the date on which the appeal is filed. The interim rules include
amendments to part 821 that were necessitated by this change.
Interim Rules
The Board believes that its current rules require certain immediate
changes to accommodate these amendments to 49 U.S.C. 44709(e). These
interim rules should permit the processing of any petitions for review
of the Administrator's exercise of emergency authority that are
instituted by affected certificate holders pursuant to the statutory
amendments, while the Board has final rules under consideration.
Under the interim rules, the authority to review emergency
determinations of the Administrator has been delegated to the Board's
administrative law judges. The interim rules permit the Administrator
to file a written reply to the certificate holder's petition for review
of the emergency determination, and require the law judge to issue a
[[Page 42638]]
written order granting or denying the petition, based upon such written
submissions by the parties. In view of the short five-day period which
Public Law 106-181 mandates for the disposition of this issue, the
interim rules provide that the law judge's decision on the issue is
final, and not appealable to the Board. The placement of such review
authority in the law judges is a matter subject to revisitation in the
future, and the Board is particularly interested in comments on this.
The Board is also interested in comments on the practicality and/or
advisability of putting in place an appeal process that would permit a
review of the law judge's ruling on the emergency issue by the Board,
which would, of necessity, occur during the running of the 30-day
period in which the case must proceed to hearing.
Aside from minor changes to 49 CFR 821.10, the general provision
relating to computations of time in air safety proceedings before the
Board, all of the revisions to part 821 necessitated by the amendments
to 49 U.S.C. 44709(e) created by Public Law 106-181 appear in subpart
I, which sets forth special rules applicable to appeals of emergency
and other immediately effective orders issued by the Administrator.
The addition and logical placement of rules specifically relating
to the disposition of petitions for review of the Administrator's
emergency determinations have necessitated a restructuring of subpart
I. Section 821.54, which contained general provisions relating to
emergency cases, has been redesignated as Sec. 821.52, with minor
changes. Paragraphs (a) and (b) of Sec. 821.55 have been removed from
that section and recodified, with revisions, at Sec. 821.53. Paragraph
(b) of Sec. 821.53 amends former paragraph (b) of Sec. 821.55, by
requiring appeals of emergency or other immediately effective orders to
include a copy of the appealed order. Previously, it was sufficient for
the certificate holder to indicate in the appeal that an emergency or
other immediately effective order was the subject of the appeal. Former
paragraphs (c) through (f) of Sec. 821.55 have been redesignated as
paragraphs (a) through (d) of that section.
A new Sec. 821.54 sets forth the rules and procedures governing the
Board's review of the Administrator's emergency determinations.
Paragraph (a) of that section provides that a certificate holder has 2
days from the date on which he or she receives the Administrator's
emergency or other immediately effective order to file with the Board a
petition for review of the emergency determination. The Board believes
the interim rule's 2 day time limit is a reasonable application of the
new legislation's requirement that review of the Administrator's
emergency determination ``shall be requested not later than 48 hours
after the order is received'' by the affected certificate holder, and
that the rule's use of a 2 day time frame, rather than one of 48 hours,
avoids the possibility of having cases turn on inquiries as to the
precise hour and minute the order was received and/or the petition was
filed. Paragraph (a) further provides that, as the time limit for
filing a petition for review of the emergency determination has been
created by statute, the Board has no authority to extend it (whereas
time limits created by the Board's rules may, for good cause shown, be
extended pursuant to Sec. 821.11). Similar language appears in the
Board's rule relating to the filing of an application for fees and
expenses under the Equal Access to Justice Act (see 49 CFR 826.24(a)).
Finally, paragraph (a) provides that, in those cases where a
certificate holder files a petition for review of an emergency
determination, but has not previously submitted an appeal from the
emergency or other immediately effective order, the petition will also
be regarded as a simultaneously-filed appeal from the order.
In the remainder of Sec. 821.54, paragraph (b) provides rules as to
the form, content, and service of the certificate holder's petition,
and requires that the petition include a copy of the Administrator's
order. Paragraph (c) provides for the submission of a reply to the
petition by the Administrator. Rules governing the law judge's
disposition of the petition are set forth in paragraphs (d) and (e),
and the effects of the law judge's ruling are enumerated in paragraph
(f). Under paragraph (e), the petition is to be disposed of by written
order, and the standard to be applied is whether, based on the acts and
omissions of the certificate holder as alleged in the complaint, the
Administrator abused his or her discretion in determining that an
emergency exists, requiring the order to be effective immediately.
Since issues of fact are properly resolved at an evidentiary hearing,
challenges to the truthfulness of the factual allegations appearing in
the Administrator's order are not appropriate for this preliminary
inquiry; thus, paragraph (e) provides that, for purposes of deciding
this emergency issue, the law judge is to assume the truth of the
factual allegations stated in the order. The abuse of discretion
standard set forth in paragraph (e) is adopted from the United States
Court of Appeals for the Ninth Circuit, which used that criteria when
presented with a challenge to the Administrator's exercise of emergency
authority in Nevada Airlines v. Bond, 622 F.2d 1017 (1980). In
paragraph (f), it is provided that, if the petition is granted, the
effectiveness of the Administrator's order will be stayed until the
Board makes a final disposition of the certificate holder's appeal.
Since, in that instance, the certificate holder will not be deprived of
the use of the certificate(s) affected by the order while the appeal is
pending, the certificate holder will not be permitted to waive the
applicability of the expedited appeals process of subpart I, unless the
Administrator consents to such a waiver.
Paragraph (a) of Sec. 821.55 (formerly paragraph (c) of that
section), which provides rules for the filing and service of the
Administrator's complaint, has been revised to include rules as to when
the complaint is to be filed in those cases where there has been a
challenge to the Administrator's emergency determination. In addition,
paragraph (a) now requires that the complaint be filed with the Board
by overnight delivery or facsimile, with service on the respondent by
the same means. Minor changes have been made to paragraph (b) (formerly
paragraph (d)) of Sec. 821.55, and no substantive changes were made to
paragraphs (c) and (d) (formerly paragraphs (e) and (f)) of that
section.
Paragraph (a) of Sec. 821.56, which sets forth rules and procedures
regarding the issuance of notices of hearing in emergency cases, has
been amended to take into account the new legislation's shortening of
the time frame for the Board to make a final disposition of an appeal
in an emergency case to 60 days after the date on which the certificate
holder's appeal is filed (as opposed to 60 days from the date on which
the Board is advised by the Administrator of the existence of an
emergency, which was accomplished when the Administrator filed a
complaint in response to the appeal). Paragraph (a) has also been
amended to provide rules for the issuance of notices of hearing in
those cases where the certificate holder has challenged the
Administrator's determination as to the existence of an emergency, upon
the disposition of that preliminary issue. There are no substantive
changes to the remaining provisions of Sec. 821.56. Section 821.57 has
not been amended.
Related Matters
Since our part 821 rules were last amended, the statutes referred
to in that
[[Page 42639]]
part--i.e., the Independent Safety Board Act of 1974; the Federal
Aviation Act of 1958, as amended; and the FAA Civil Penalties
Assessment Act of 1992--have been recodified, without substantive
change, at 49 U.S.C. Chapters 11 (Sections 1101 et seq.), 447 (Sections
44701 et seq.), and 463 (Sections 46301 et seq.), respectively. Thus,
the Board will, solely for ``housekeeping'' purposes, amend part 821,
where necessary, to reflect the current statutory designations. In
addition, Section 821.38(b), as currently written, contains a reference
to ``Sec. 556(d) of the Administrative Procedure Act,'' while
Sec. 821.41 refers to another section of Administrative Procedure Act
by its United States Code citation. For purposes of consistency, and to
follow the preferred convention of using United States Code citations
to reference statutory authority in agency rules, the statutory
reference in Sec. 821.38(b) will be amended to reflect the appropriate
United States Code citation.
The rules, as currently written, also contain references to parties
involved in these proceedings, and actions taken by them, with the
designations ``he,'' ``him,'' and ``his.'' The Board believes that such
terms should be changed to the more proper ``he or she,'' ``him or
her,'' and ``his or hers,'' and these changes will be made in the
housekeeping amendments, as well.
Because such housekeeping amendments do not substantively change
the Board's part 821 rules, comments on these matters are not
solicited.
List of Subjects in 49 CFR Part 821
Administrative practice and procedure, Airmen, Aviation safety.
For the reasons set forth in the preamble, part 821 of title 49 of
the Code of Federal Regulations is amended as follows:
PART 821--RULES OF PRACTICE IN AIR SAFETY PROCEEDINGS
1. The authority citation for part 821 is revised to read as
follows:
Authority: 49 U.S.C. 1101-1155, 44701-44723, 46301; unless
otherwise noted.
2. In part 821, revise all references to ``he,'' ``him,'' and
``his,'' to read ``he or she,'' ``him or her,'' and ``his or her,''
respectively.
3. In part 821, revise all references to ``section 602(b) of the
Act'' to read ``49 U.S.C. 44703(c),'' and revise all references to
``section 609 of the Act'' to read ``49 U.S.C. 44709.''
Sec. 821.1 [Amended]
4. In Sec. 821.1, remove the paragraph defining the term ``Act;''
amend the paragraph defining the term ``Certificate'' by removing the
words ``Title VI of the Act'' and inserting in their place the words
``49 U.S.C. Chapter 447;'' and amend the last sentence of Sec. 821.1 by
removing the words ``the Act'' and inserting in their place the words
``49 U.S.C. Chapters 11, 447, and 463.''
Sec. 821.3 [Amended]
5. In Sec. 821.3, remove the words ``a new.''
Sec. 821.8 [Amended]
6. Amend paragraph (c) of Sec. 821.8 by removing the words
``section 1005(b) of the Act'' and inserting in their place the words
``49 U.S.C. 46103(a).''
7. Revise Sec. 821.10 to read as follows:
Sec. 821.10 Computation of time.
In computing any period of time prescribed or allowed by this part,
by notice or order of the Board or a law judge, 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
neither a Saturday, Sunday, nor 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 Sec. 821.54 in subpart I of this part.
Sec. 821.19 [Amended]
8. Amend paragraph (a) of Sec. 821.19 by removing the words
``section 1004 of the Act'' and inserting in their place the words ``49
U.S.C. 46104.''
Sec. 821.38 [Amended]
9. Amend paragraph (b) of Sec. 821.38 by removing the words
``Sec. 556(d) of the Administrative Procedure Act'' and inserting in
their place the words ``5 U.S.C. 556(d) (Administrative Procedure).''
10. Revise subpart I to read as follows:
Subpart I--Rules Applicable to Emergency Proceedings and Other
Immediately Effective Orders
Sec.
821.52 General.
821.53 Appeal.
821.54 Review of Administrator's determination of emergency.
821.55 Complaint, answer to complaint, motions, and discovery.
821.56 Hearing and initial decision.
821.57 Procedure on appeal.
Sec. 821.52 General.
(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 when written advice of the emergency
character of the Administrator's order is first received and docketed
by the Office of Administrative Law Judges or the Board.
(c) Computation of time. Time shall be computed in accordance with
the provisions of Sec. 821.10.
Sec. 821.53 Appeal.
(a) Time within which to appeal. The certificate holder may appeal
within 10 days after the service of the Administrator's emergency or
other immediately effective order. The certificate holder shall file an
original and 3 copies of the appeal with the Office of Administrative
Law Judges, and shall 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 Administrator's order and the certificate
affected, shall recite the Administrator's action and indicate that an
emergency or other immediately effective order is being appealed, and
shall identify the issues of fact or law on which the appeal is based,
and the relief sought. A copy of the order shall be attached to the
appeal.
Sec. 821.54 Review of Administrator's determination of emergency.
(a) Time within which to file petition. The certificate holder may,
within 2 days after receipt of the Administrator's emergency or other
immediately effective order, petition the Board for review of the
Administrator's determination that an emergency, requiring the issuance
of an immediately effective order, exists. This 2 day deadline is
statutory and the Board has no authority to extend it. If the
certificate holder has not previously filed an appeal from the
emergency or other immediately effective order, the petition shall also
be considered a
[[Page 42640]]
simultaneously filed appeal from the order under Sec. 821.53.
(b) Form, content, and service of petition. The petition may be in
letter form. It shall identify the order from which review of the
Administrator's exercise of emergency authority is sought, and a copy
of the order shall be attached to the petition. The petition shall
enumerate the specific grounds on which the certificate holder
challenges the Administrator's determination that an emergency exists.
In the event that the petition fails to set forth the specific grounds
for the certificate holder's challenge to the Administrator's emergency
determination, the petition shall be dismissed. The petition shall be
served on both the Board and the Administrator via overnight delivery
or facsimile.
(c) Reply to petition. Within 2 days after service of the petition,
the Administrator may file a reply to the petition in support of his or
her determination as to the existence of an emergency requiring the
order to be effective immediately. Such reply shall be served on both
the Board and the certificate holder via overnight delivery or
facsimile. No written submissions other than the petition and reply
shall be filed, 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, a law judge may, on his or her own
initiative, solicit from the parties additional information to
supplement that provided in the petition and reply.
(e) Disposition. Within 5 days after receipt of the petition, the
chief judge (or, if the case has been assigned, the law judge to whom
the case is assigned) shall dispose of the petition by written order,
finding whether the Administrator abused his or her discretion in
determining that there exists an emergency requiring the order to be
immediately effective, based on the acts and omissions alleged in the
Administrator's order, assuming the truth of such factual allegations.
(f) Effect of law judge's ruling. If the law judge grants the
petition, the effectiveness of the Administrator's order will be stayed
until final disposition of the respondent's appeal by the law judge or
the Board. In such cases, the remaining provisions of this subpart
(Secs. 821.55-821.57) shall continue to apply, and their applicability
may not be waived by the respondent without the consent of the
Administrator. 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 respondent waives their applicability.
The law judge's ruling on the petition shall be final, and is not
appealable to the Board.
Sec. 821.55 Complaint, answer to complaint, motions, and discovery.
(a) Complaint. Within 3 days after receipt of the appeal, or within
3 days after service of a law judge's order disposing of a petition for
review of the Administrator's emergency determination, whichever is
later, the Administrator shall file with the Board via overnight
delivery or facsimile, an original and 3 copies of the emergency or
other immediately effective order as the complaint, and serve a copy on
the respondent by the same means.
(b) Answer to the complaint. Within 5 days after service of the
complaint upon respondent, he or she shall file an answer thereto, and
serve a copy of the answer on the Administrator. Failure to deny any
allegation or allegations of the complaint may be deemed an admission
of the allegation or allegations not answered.
(c) Motion to dismiss and motion for more definite statement. No
motion to dismiss or for a more definite statement 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 emergency or other
immediately effective proceedings, and, given the short time available,
parties are directed to cooperate to ensure timely completion prior to
the hearing. Discovery requests shall be served as soon as possible
after initiation of the proceeding. Motions to compel production shall
be expeditiously filed, and will be promptly decided. Time limits for
compliance with discovery requests shall accommodate and not conflict
with the schedule set forth in this subpart. The provisions at
Sec. 821.19 shall apply, modified as necessary to reflect applicable
deadlines.
Sec. 821.56 Hearing and initial decision.
(a) Notice of hearing. Within 5 days of the receipt of respondent's
appeal, 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 will be notified of the date,
time and place of the hearing. The hearing shall be set for a date no
later than 30 days after the filing of the appeal. To the extent not
inconsistent with this section, the provisions of Sec. 821.37(a) also
apply.
(b) Initial decision. The initial decision shall be made orally on
the record at the termination of the hearing and after opportunity for
oral argument. The provisions of Sec. 821.42(b) and (d) shall be
applicable (covering content, furnishing a copy of the initial decision
excerpted from the record, and issuance date).
(c) Conduct of hearing. The provisions of Secs. 821.38, 821.39, and
821.40, covering evidence, argument and submissions, and record, shall
be applicable.
(d) Effect of law judge's initial decision. If no appeal to the
Board by either party, by motion or otherwise, is filed within the time
allowed, the law judge's initial decision shall become final but shall
not be deemed to be a precedent binding on the Board.
Sec. 821.57 Procedure on appeal.
(a) Time within which to file a notice of appeal and content.
Within 2 days after the initial decision has been orally rendered,
either party to the proceeding may appeal therefrom by filing with the
Board and serving upon the other parties a notice of appeal. The time
limitations for the filing of documents are not extended by the
unavailability of the hearing transcript.
(b) Briefs and oral argument. Unless otherwise authorized by the
Board, all briefs in emergency cases shall be served via overnight
delivery or facsimile confirmed by first-class mail. Within 5 days
after the filing of the notice of appeal, the appellant shall file a
brief with the Board and serve a copy on the other parties. Within 7
days after service of the appeal brief, a reply brief may be filed,
with copies served (as provided above) on other parties. The briefs
shall comply with the requirements of Sec. 821.48 (b) through (g).
Appeals may be dismissed by the Board on its own initiative or on
motion of a party, notably in cases where a party fails to perfect the
notice of appeal by filing a timely brief. When a request for oral
argument is granted, the Board will give notice of such argument.
(c) Issues on appeal. The provisions of Sec. 821.49 shall apply to
issues on appeal. However, the Board may upon its own initiative raise
any issue, the resolution of which it deems important to a proper
disposition of the proceeding. If necessary or appropriate, the parties
shall be afforded a reasonable opportunity to comment.
(d) Petitions for reconsideration, rehearing, reargument, or
modification of order. The only petitions for reconsideration,
rehearing, reargument,
[[Page 42641]]
or modification of an order which the Board will entertain are
petitions based on the ground that new matter has been discovered. Such
petitions must set forth the following:
(1) The new matter;
(2) Affidavits of prospective witnesses, authenticated documents,
or both, or an explanation of why such substantiation is unavailable;
and
(3) A statement that such new matter could not have been discovered
by the exercise of due diligence prior to the date the case was
submitted to the Board.
Sec. 821.64 [Amended]
11. Amend paragraph (a) of Sec. 821.64 by removing the words
``section 1006 of the Act (49 U.S.C. 46110) and section 304(d) of the
Independent Safety Board Act of 1974 (49 U.S.C. 1153)'' and inserting
in their place the words ``49 U.S.C. 1153 and 46110.''
Dated: July 5, 2000.
Jim Hall,
Chairman.
[FR Doc. 00-17417 Filed 7-10-00; 8:45 am]
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