[Federal Register Volume 75, Number 245 (Wednesday, December 22, 2010)]
[Proposed Rules]
[Pages 80452-80454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32056]
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NATIONAL TRANSPORTATION SAFETY BOARD
49 CFR Parts 821 and 826
Rules of Practice in Air Safety Proceedings and Implementing the
Equal Access to Justice Act of 1980
AGENCY: National Transportation Safety Board (NTSB or Board).
ACTION: Advance notice of proposed rulemaking (ANPRM).
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SUMMARY: The NTSB seeks comments from the public regarding amendments
to its regulations which set forth rules of procedure for the NTSB's
review of certificate actions taken by the Federal Aviation
Administration (FAA), and those which set forth rules of procedure
concerning applications for fees and expenses under the Equal Access to
Justice Act (EAJA). The NTSB is undertaking a review in an effort to
respond to parties' suggestions for changing the rules, in order to
update rules that may be outdated, in the interest of modernizing the
rules to accommodate prospective electronic filing and document
availability in case dockets.
DATES: Send your comments on or before February 22, 2011.
ADDRESSES: You may send comments using any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the instructions for sending your
comments electronically.
Mail: Send comments to NTSB Office of General Counsel, 490
L'Enfant Plaza East, SW., Washington, DC 20594-2000.
Facsimile: Fax comments to 202-314-6090.
Hand Delivery: Bring comments to 490 L'Enfant Plaza East,
SW., 6th Floor, Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
For more information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
Privacy: We will post all comments we receive, without change, to
http://www.regulations.gov, including any personal information
provided.
FOR FURTHER INFORMATION CONTACT: Gary Halbert, General Counsel, (202)
314-6080.
SUPPLEMENTARY INFORMATION:
Comments Invited
The NTSB invites interested persons to participate in this
rulemaking by submitting written comments, data, or views. We also
invite comments relating to any economic, environmental, energy, or
federalism impacts that may result in amending part 821 or part 826.
The most helpful comments would reference a specific section, explain
the reason for any recommended change, and include supporting data or
rationale. To ensure the docket does not contain duplicative comments,
please send only one copy of written comments, or, if you are filing
comments electronically, please submit your comments only once.
We will file in the docket all comments we receive, as well as a
report summarizing any substantive public contact with NTSB personnel
concerning this proposed rulemaking. Before amending part 821 or part
826, we will consider all comments we receive on or before the closing
date for comments. As described below, we are particularly interested
in reviewing comments pertaining to: The standard for the NTSB's review
of the FAA's ``emergency'' determinations; discovery and exchange of
documents in air safety proceedings; suggestions concerning electronic
filing of documents in such cases; and updates to the procedural rules
governing EAJA claims.
Part 821: Rules of Practice in Air Safety Proceedings
Emergency Review Process: Regulatory History
The FAA is authorized, under 49 U.S.C. 44709(e)(2), to issue orders
amending, modifying, suspending, or revoking certificates issued on an
``emergency'' basis. In non-emergency cases, the certificate holder may
continue to exercise the privileges of the certificate(s) affected by
such an order while an appeal of the order is pending with the NTSB.
Emergency orders are issued by the FAA where it finds that the
interests of safety require that the order be effective immediately,
and, in those cases, certificate privileges may not be exercised during
the pendency of the appeal. Section 716 of the Aviation Investment and
Reform Act for the 21st Century (hereinafter, ``the Act'') amended 49
U.S.C. 44709 by granting the NTSB authority to review such emergency
determinations. Public Law 106-181, section 716 (2000) (codified at 49
U.S.C. 44709(e)(3)).
On July 11, 2000, in order to implement that provision, the NTSB
published an Interim Rule with a request for comments. 65 FR 42637.
This Interim Rule amended 49 CFR part 821 by providing the NTSB's
administrative law judges with the authority to issue orders affirming
or denying the FAA's determination that an emergency exists under 49
U.S.C. 44709(e).
The NTSB received a number of comments in response to the Interim
Rule, which it considered when drafting the Final Rule. Those comments
were primarily directed at the following subjects: The standard of
review of emergency determinations; the burden of proof and the
evidence to be reviewed; and an intermediate appeal process to the full
Board. In addition, a suggestion was made to allow electronic filings
in such proceedings. On April 29, 2003, the NTSB published the Final
Rule, which included one major change from the Interim Rule: It altered
the standard of review for emergency determinations.
A. Standard of Review
The standard of review of emergency determinations in the Interim
Rule directed NTSB law judges to decide whether the Administrator
abused his or her discretion in finding that an emergency existed under
the facts alleged in the Administrator's order, which the NTSB assumed
to be true for the limited purpose of reviewing the emergency
determination. The NTSB incorporated the abuse of discretion standard
for review set forth in the Interim Rule from Nevada Airlines v. Bond,
622 F.2d 1017 (9th Cir. 1980). Subsequent to Nevada Airlines, the Ninth
Circuit, in Tur v. FAA, 4 F.3d 766, 768 (1993), reaffirmed the
``arbitrary and capricious, an abuse of discretion, or otherwise not in
accordance with law'' standard it articulated in Nevada Airlines. That
standard was also applied in Ickes v. FAA, 299 F.3d 260 (3rd Cir. 2002)
(citing Blackman v. Busey, 938 F.2d 659, 663 (6th Cir. 1991) and Nevada
Airlines, and stating, ``our standard of review when assessing an FAA
response to a perceived emergency is appropriately deferential: we ask
only whether the finding of an emergency `was a clear error of judgment
lacking any rational basis in fact.' ''). See also Armstrong v. FAA,
515 F.3d 1294 (D.C. Cir. 2008) (implying, in dicta, that the
appropriate standard for review of emergency determinations is an
``arbitrary and capricious'' standard).
After issuing the Interim Rule, the NTSB received two comments
asserting that the abuse of discretion standard is not appropriate for
the NTSB to apply to its reviews of emergency determinations. Both
commenters stated that the abuse of discretion standard used in Nevada
Airlines was a standard for judicial review and was not suitable for
administrative review by the NTSB.
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However, based on the comments, the standard of review provided for
in the Final Rule at section 821.54(e) provides: ``Within 5 days after
the Board's receipt of [a petition for review of the FAA's emergency
determination], the * * * law judge * * * shall dispose of the petition
by written order, and, in so doing, shall consider whether, based on
the acts and omissions alleged in the Administrator's order, and
assuming the truth of such factual allegations, the Administrator's
emergency determination was appropriate under the circumstances, in
that it supports a finding that aviation safety would likely be
compromised by a stay of the effectiveness of the order during the
pendency of the respondent's appeal.''
The NTSB adopted a standard that requires a law judge to ascertain
whether the Administrator's emergency determination was appropriate
under the circumstances, given the potential threat to aviation safety,
rather than merely deciding whether the Administrator's emergency
determination was rationally supportable under an abuse of discretion
standard. Thus, the standard adopted in the Final Rule represented a
substantive departure from the more stringent standard that had been
generally accepted by the courts.
B. Burden of Proof and Evidence
Related to the standard of review in emergency determination cases,
some commenters objected to the provision in the Interim Rule that
reviews of emergency determinations be undertaken under the assumption
that facts alleged by the Administrator are true. That assumption
remained unchanged in the Final Rule. Note: Section 821.54(e) does not
explicitly state that the allegations of the FAA's complaint are
``deemed true,'' but instead uses the word ``assum[ed].'' The NTSB
modeled this language after subsection (b) of the Board's Stale
Complaint Rule, codified at 49 CFR 821.33. The NTSB concluded that the
right to challenge an emergency determination should not be an
opportunity to contest the factual allegations underlying the
certificate action. The Board believed its rules already provided an
opportunity for contesting those factual allegations in emergency cases
via an expedited review process, which must be completed within 60
days, and the NTSB determined that it would be impractical to
accomplish that expedited review process within the preliminary 5-day
emergency determination review process.
The NTSB also received several comments concerning the review of
evidence during the emergency determination review phase; most
commenters asserted that certificate holders need more evidence from
the FAA in order to contest the determination that an emergency exists.
After carefully considering the comments concerning the presentation of
evidence during the emergency review determination phase, the NTSB
included the following provision in section 821.54(d) of its Final
Rule: ``No hearing shall be held on a petition for review of an
emergency determination. However, the law judge may, on his or her own
initiative, and strictly in keeping with the prohibition on ex parte
communications * * * solicit from the parties additional information to
supplement that previously provided by the parties.''
C. Appeals Process
Several commenters were also concerned with the Interim Rule's
provision, in section 821.54(f), that the law judge's determination
concerning an emergency review petition would be considered final. The
commenters provided various suggestions for an appeal process, in which
a certificate holder could appeal the law judge's determination that an
emergency exists to the Board. In the Final Rule, the NTSB decided not
to institute such an intermediate appellate procedure for review of the
law judges' decisions in reviewing emergency determinations. The NTSB
determined that it was not necessary and would prove infeasible given
the 5-day statutory period in which the Board must act on a petition.
In order to address concerns of inconsistency and lack of precedent,
the NTSB provided in the Final Rule that it would, in those cases that
are appealed to the Board for a decision on the merits of an emergency
or other immediately effective order of the Administrator, state the
Board's concurrence or disagreement with the law judge's ruling on a
petition challenging the emergency determination whenever it would be
beneficial to address the issues raised, and that such views of the
Board would serve as binding precedent in future cases.
D. Electronic Filings
Finally, one commenter suggested that the NTSB consider permitting
electronic filing in emergency proceedings. The NTSB declined to adopt
such a provision in the Final Rule.
Request for Comments
A. Standard for NTSB Review of FAA Emergency Determinations
Recently, the NTSB has received requests from outside organizations
to further alter the standard of review for emergency determinations.
In particular, parties have asked the NTSB to consider removing the
language of section 821.54(e) that provides that the law judge should
assume that the acts and omissions alleged in the FAA's emergency order
are true. Because of such interest, the NTSB specifically invites
written comments concerning this issue along with support for the
position.
B. Discovery and Exchanges of Information by the Parties
The NTSB has also received requests for amendments to its rules
governing the discovery process and exchanges of information by the
parties in air safety enforcement proceedings, and would like to invite
written comments concerning discovery obligations in cases on appeal.
For example, in the interest of ensuring that parties understand their
discovery obligations, should the Rules of Practice require law judges
routinely to issue prehearing orders? In addition, should the Rules
impose any specific sanctions for a party's failure to provide
information requested in discovery? The NTSB specifically invites
comments on these issues along with the reasoning for any
recommendation to make changes, as well as general concerns regarding
pre-hearing exchanges of information by the parties.
C. Electronic Filing of Documents
The NTSB is committed to creating an electronic filing system for
cases involving certificate actions at some point in the future.
Currently, the NTSB is in the initial stages of exploring options for
such a system. The NTSB is nevertheless interested in obtaining ideas
and suggestions at this juncture from commenters. The NTSB notes that
many certificate-holders proceed pro se (without representation by
legal counsel), and encourages comments that suggest means by which
parties acting pro se may avail themselves of the electronic filing
process.
Part 826: EAJA Procedural Rules
Background Information
The NTSB promulgated part 826 on October 1, 1981, in light of the
need for procedural rules to govern cases arising out of the EAJA,
codified at 5 U.S.C. 504. In the Final Rule that the NTSB published
promulgating part 826
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(published at 46 FR 48208 (Oct. 1, 1981)), the NTSB organized part 826
into three subparts: Subpart A contains general provisions, such as the
purpose of part 826, which proceedings are covered and which applicants
are eligible, and which fees and expenses are allowable, among other
subjects; subpart B contains provisions concerning the required
information that applicants must furnish the NTSB in order to receive
an award; and subpart C sets forth the NTSB's procedures for
considering EAJA applications. In 1989, the NTSB published a Final Rule
amending the authority citation for part 826, and revising section
826.4, which addresses the eligibility of applicants (published at 54
FR 10332-01 (Mar. 13, 1989)). Specifically, the NTSB revised three
subsections of section 826.4(b) to provide limitations on which
applicants may be eligible for an award. The NTSB has not amended part
826 since the March 1989 Final Rule.
Request for Comments
Recently, the NTSB Office of General Counsel received an inquiry
from an attorney who advised that section 826.40, which provides
instructions for receiving payment of an award from the FAA, was
outdated, in that it provides an incorrect address and contact
information for the FAA office responsible for managing payments of
awards under the EAJA. The NTSB seeks to ensure that its regulations
are current, accurate, legally enforceable, and helpful to individuals
to whom they apply. Therefore, the NTSB plans to update section 826.40,
as well as any other sections within part 826 that may also be
inaccurate.
The NTSB invites written comments from any individuals interested
in this rulemaking. As stated above, comments should specify the
section needing amendment, and provide clear recommendations of the
proposed changes along with supporting data and rationale.
The NTSB reminds potential commenters that 5 U.S.C. 504 governs the
applicability of the EAJA, and the NTSB will not attempt to expand this
applicability in amending part 826. The NTSB also will observe and
respect courts' interpretations of 5 U.S.C. 504, and, in general, will
not adopt suggestions that are contrary to the Federal Courts of
Appeals' interpretations.
In general, the NTSB is receptive to considering suggestions
concerning the promulgation of new sections regarding subjects not
presently addressed in part 826. The NTSB does not intend to enact
proposed provisions that it believes would not be helpful, would impose
an undue burden on the FAA or the EAJA applicant, or would be contrary
to any law, regulation, or executive order. The NTSB invites comments
concerning proposed amendments to part 826 in light of these
proclamations.
Regulatory Notices
1. Executive Order 12866 (Regulatory Planning and Review)
This advance notice of proposed rulemaking is not a significant
regulatory action under Executive Order 12866. Therefore, Executive
Order 12866 does not require a Regulatory Assessment.
2. Executive Order 13132 (Federalism)
The NTSB has analyzed this ANPRM in accordance with the principles
and criteria contained in Executive Order 13132. Any rulemaking
proposal resulting from this notice would not propose any regulations
that would: (1) Have a substantial direct effect on the states, the
relationship between the national government and the states, or the
distribution of power and responsibilities among the various levels of
government; (2) impose substantial direct compliance costs on state and
local governments; or (3) preempt state law. Therefore, the
consultation and funding requirements of Executive Order 13132 do not
apply.
3. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires each
agency to review its rulemaking to assess the potential impact on small
entities, unless the agency determines that a rule is not expected to
have a significant economic impact on a substantial number of small
entities. The NTSB does not believe that any proposal resulting from
this ANPRM will have a significant economic impact on a substantial
number of small entities. However, the NTSB invites comments to
facilitate any further analysis on this issue.
Dated: December 15, 2010.
Deborah A.P. Hersman,
Chairman.
[FR Doc. 2010-32056 Filed 12-21-10; 8:45 am]
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