Final Rule by NTSB regarding Rules of Practice in Air Safety Proceedings 49 CFR Part 821 – September 19, 2013

[Federal Register Volume 78, Number 182 (Thursday, September 19, 2013)]
[Rules and Regulations]
[Pages 57527-57534]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-22634]

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NATIONAL TRANSPORTATION SAFETY BOARD

49 CFR Part 821

[Docket No. NTSB-GC-2011-0001]

Rules of Practice in Air Safety Proceedings

AGENCY: National Transportation Safety Board (NTSB or Board).

ACTION: Final rule.

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SUMMARY: The NTSB finalizes its amendments to portions of its rules of
practice for the NTSB’s review of certificate actions taken by the
Federal Aviation Administration (FAA), as a result of the enactment of
the Pilot’s Bill of Rights.

DATES: This rule is effective September 19, 2013.

ADDRESSES: A copy of this final rule, published in the Federal Register
(FR), is available for inspection and copying in the NTSB’s public
reading room, located at 490 L’Enfant Plaza, SW., Washington, DC 20594-
2003. Alternatively, a copy is available on the government-wide Web
site on regulations at http://www.regulations.gov (Docket ID Number
NTSB-GC-2011-0001).

FOR FURTHER INFORMATION CONTACT: David Tochen, General Counsel, (202)
314-6080.

SUPPLEMENTARY INFORMATION:

I. Background

A. Legislative and Regulatory History

The NTSB issued an advance notice of proposed rulemaking (ANPRM),
75 FR 80452 (Dec. 22, 2010) and a notice of proposed rulemaking (NPRM),
77 FR 6760 (Feb. 9, 2012), which the NTSB finalized in a final rule, 77
FR 63245 (Oct. 16, 2012) for 49 CFR parts 821 and 826. (Part 826 sets
forth rules of procedure concerning applications for fees and expenses
under the Equal Access to Justice Act of 1980.) In a

[[Page 57528]]

separate publication, the NTSB issued an interim final rule, 77 FR
63242 (Oct. 16, 2012), which also set forth changes to 49 CFR part 821.
The interim final rule contained necessary amendments required by the
enactment of the Pilot’s Bill of Rights, Pub. L. No. 112-53, 126 Stat.
1159 (August 3, 2012). As noted in the interim final rule, the Pilot’s
Bill of Rights established statutory changes that, among other things:
(1) Require the FAA to disclose its enforcement investigative report
(EIR) to each respondent in an aviation certificate enforcement case;
(2) require the NTSB to apply the Federal Rules of Civil Procedure
(FRCP) and Federal Rules of Evidence (FRE) to each case, to the extent
practicable; and (3) provide litigants the option of appealing the
Board’s orders to either a Federal district court or a Federal court of
appeals.

B. Comments Received

In response to the October 16, 2012, interim final rule, the NTSB
received ten comments. The NTSB received a comment dated December 17,
2012, from the FAA, which followed two letters the FAA’s Chief Counsel
submitted. As described more fully below, these letters stated the
interim final rule’s requirement to release the EIR “with” the
“required notification” was an incorrect interpretation of the
Pilot’s Bill of Rights, and caused immediate hardship for the FAA. The
NTSB placed both letters (dated October 26 and December 4, 2012), as
well as the FAA comment in the public docket for this rulemaking. The
NTSB General Counsel held discussions with staff from the FAA Chief
Counsel’s office, as well as with counsel for the Aircraft Owners and
Pilots Association (AOPA). The NTSB placed summaries of both
conversations in the public docket for this rulemaking.
In addition to feedback from the FAA, the NTSB received comments
from nine other organizations, including AOPA, Aerolaw Offices, the
Aviation Law Firm, Dixon and Snow, GeoVelo, Hays Hettinger of Carstens
& Cahoon, LLP, National Air Transportation Association (NATA), National
Business Aviation Association (NBAA), and Smith Amundsen Aerospace. The
comments discussed the following issues: (1) Applicability of the FRCP;
(2) applicability of the FRE; (3) disclosure of the EIR;
(4) judicial review of Board orders; (5) disclosure of air traffic
data; and (6) emergency review determinations.

II. Responses to Comments

A. Applicability of the FRCP

1. Section 821.5
In the interim final rule, the NTSB set forth the following final
language to Sec.  821.5: “In proceedings under subparts C, D, and F of
this part, for situations not covered by a specific Board rule, the
Federal Rules of Civil Procedure will be followed to the extent they
are consistent with sound administrative practice.” Subpart C contains
rules applicable to proceedings under 49 U.S.C. 44703, which governs
denials of issuance or renewal of airman certificates. Subpart D
includes rules applicable to proceedings under 49 U.S.C. 44709, which
governs amendments, modifications, suspensions, and revocations of
certificates. Finally, subpart F contains rules applicable to hearings
conducted under 49 CFR part 821.
In the preamble of the NTSB’s interim final rule, the agency
explained it considered the phrase, “to the extent they are consistent
with sound administrative practice,” to preclude the application of
the FRCP that would be obviously inapplicable. The NTSB further
explained it would apply the FRCP in conjunction with the Rules of
Practice codified in 49 CFR part 821; in this regard, the NTSB
analogized part 821 to “local rules” a Federal court would apply.
The NTSB received five comments discussing this amendment to Sec.
821.5. Comments from AOPA and GeoVelo both suggest the NTSB replicate
the language of the Pilot’s Bill of Rights, which requires the NTSB to
apply the FRCP “to the extent practicable.” The GeoVelo comment
includes the suggestion the NTSB clarify that when the rules of part
821 conflict with the FRCP, the FRCP should apply.
The FAA’s comment discusses the amendment to Sec.  821.5, and the
overall applicability of the FRCP to all NTSB cases. Concerning the
applicability of the FRCP, the FAA states the new language of Sec.
821.5 goes beyond the scope of the Pilot’s Bill of Rights, because the
statute does not require applying the FRCP to cases the FAA commences
under 49 U.S.C. 44710, regarding revocation of an airmen’s certificate
for violating a Federal or state law related to a controlled substance,
and 44726, regarding denial or revocation of an airman’s certificate
for a conviction of a Federal law related to the installation,
production, repair, or sale of a counterfeit or fraudulently-
represented aviation part or material, as well as civil penalty
proceedings. The FAA also urges the NTSB to clarify whether the FRCP
will apply to emergency cases under 49 CFR part 821, subpart I. The
Pilot’s Bill of Rights only specifically required application of the
FRCP to subparts C, D, and F of part 821, and the NTSB did not include
subpart I in the new text of Sec.  821.5.
2. Section 821.19
The NTSB received two comments discussing paragraphs (a), (b), and
(c) of Sec.  821.19. (A discussion concerning paragraph (d) of Sec.
821.19, regarding mandatory disclosure of the EIR, is included in the
EIR section below.)
AOPA suggests the NTSB amend Sec.  821.19 to state the FRCP would
apply “to the extent practicable,” and provide the NTSB’s
administrative law judges the discretion to determine how to apply the
FRCP.
The FAA suggests several amendments to paragraphs (a)
(“depositions”), (b) (“exchange of information by the parties”),
and (c) (“use of the [FRCP]”) of Sec.  821.19. The FAA states the
NTSB should amend Sec.  821.19(a) concerning depositions, because FRCP
30(a) and 31(a) specify when a party “may” take a deposition
“without leave,” and when a party “must obtain leave” before taking
a deposition. The FAA encourages the NTSB to compare these requirements
to those within Sec.  821.19(a), which allows parties to take
depositions without first obtaining approval to do so. The FAA suggests
the NTSB clarify in Sec.  821.19(a) that the taking of a deposition
with or without leave of the Board must be in accord with FRCP 30(a)
and 31(a).
The FAA also states Sec.  821.19(b) does not provide a “sufficient
framework to effectuate compliance” with the FRCP. As amended, Sec.
821.19(b) states parties must exchange information in accordance with
the FRCP. The FAA contends Sec.  821.19(b) should address whether
parties must attend a scheduling conference, because FRCP 26(a)(1)(C)
requires initial disclosures occur “within 14 days after the parties’
Rule 26(f) conference.” The FAA further notes FRCP 26(f) requires
parties establish a “discovery plan” after the judge issues a
scheduling order, but the NTSB rules provide judges with the discretion
to issue prehearing orders. The FAA comment states the NTSB’s
“wholesale adoption” of the FRCP in 821.19(b) is impractical. The FAA
suggests the NTSB choose which of the FRCP will apply, and proposes
changes to Sec.  821.19(b) in an NPRM requesting comments. The FAA’s
comment cites Richardson v. Perales, 402 U.S. 389, 400-01 (1971), in
which the Supreme Court recognized application of the

[[Page 57529]]

FRCP in administrative cases is impractical. The FAA’s comment also
disputes a statement the NTSB made in the preamble explaining Sec.
821.19(c), wherein the NTSB indicated it would apply FRCP 11 (Signing
pleadings, motions, and other papers; representations to the court;
sanctions) to NTSB cases. The FAA states the FRCP provides for a broad
range of sanctions, including monetary penalties, but is inapplicable
to discovery because FRCP 26(g)(3), 30(d)(2), and 37 provide for
monetary penalties in certain circumstances. The FAA states the Pilot’s
Bill of Rights did not give the NTSB authority to impose monetary
penalties. Therefore, the FAA suggests the NTSB add the statement “and
as authorized by law” to the end of Sec.  821.19(c).
3. Other Issues Concerning Application of the FRCP
The comment the NTSB received from Hays Hettinger of Carstens &
Cahoon, LLP, indicated the firm agrees with the NTSB’s amendments to
its rules concerning the FRCP. Similarly, the Aviation Law Firm stated
it supports the NTSB’s amendments indicating applicability of the FRCP,
especially FRCP 26, which concerns mandatory disclosures and general
rules concerning discovery. The firm specifically suggests the NTSB
adopt scheduling orders in all cases pursuant to FRCP 16, and attached
a sample scheduling order to its comment; the firm did not recommend a
section within part 821 in which such a requirement should appear.
AOPA’s comment includes a general suggestion: The comment
acknowledges many of the FRCP would be inapplicable to NTSB cases, but
states it is “premature to conclude all of the procedural rules beyond
pre-hearing discovery are impractical.”
In addition to offering input concerning Sec. Sec.  821.5 and
821.19, the FAA’s comment also suggests the NTSB incorporate FRCP
26(b)(2)(C), which limits all discovery when the discovery request is
unreasonably cumulative or duplicative; when the person seeking
discovery has already had ample opportunity to obtain the information;
or when the burden or expense of the discovery outweighs its benefit.
The FAA suggests the NTSB specifically reference the discovery
limitations of FRCP 26(b) within the rules of practice.
4. NTSB’s Response to Comments
Section 821.5 (General Applicability of FRCP)
The NTSB appreciates commenters’ feedback concerning the
applicability of the FRCP. First, concerning Sec.  821.5, the NTSB
herein changes the language to provide as follows: “In proceedings
under subparts C, D, F, and I, for situations not covered by a specific
Board rule, the Federal Rules of Civil Procedure will be followed to
the extent practicable.” Although the Pilot’s Bill of Rights does not
mandate this inclusion of subpart I (which contains rules applicable to
emergency cases), the NTSB maintains it has the discretion to apply the
FRCP to all cases, to the extent practicable. In this regard, the NTSB
notes it does not have separate rules within part 821 that apply to
civil penalty cases or cases involving air carriers; the NTSB has
always applied the rules of part 821 to any appeal within the NTSB’s
jurisdiction. The NTSB plans to continue to apply the rules of part 821
to all such cases, including those the FAA commences under 49 U.S.C.
44710 and 44726. Therefore, in the interest of consistency, the NTSB
will enact the amendment noted above.
In addition, the NTSB is removing the language “to the extent . .
. consistent with sound administrative practice,” and instead
inserting the language from the Pilot’s Bill of Rights, which requires
application of the FRCP “to the extent practicable.” The NTSB
believes it beneficial to maintain consistency with the statutory
language.
The NTSB acknowledges Congress did not define the phrase “to the
extent practicable” in its consideration and passage of the Pilot’s
Bill of Rights. Courts have recognized this phrase in the context of
agencies’ application of the FRE,\1\ but have not provided a definition
or description of how agencies should interpret the phrase.
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\1\ Federal Maritime Comm’n v. South Carolina Ports Authority,
535 U.S. 743, 758-59 (2002) (application of FRCP “to the extent
practicable”); Nat’l Labor Relations Bd. v. Interbake Foods, LLC
637 F.3d 492 (4th Cir. 2011) (application of FRE “to the extent
practicable); accord New Life Bakery v. Nat’l Labor Relations Bd.,
980 F.2d 738 (9th Cir. 1992).
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Section 821.19(a) (Depositions)
The NTSB believes its current version of Sec.  821.19(a) conveys
the NTSB will apply the FRCP and is not in conflict with FRCP
provisions regarding taking of depositions; therefore, the NTSB
declines to change the text of Sec.  821.19(a). As noted, for
situations not covered by a specific Board rule, NTSB administrative
law judges will follow the FRCP to the extent practicable. When a party
disagrees with the issuance of a notice of deposition, the party may
seek relief from the law judge. FRCP 30(a) and 31(a) require parties to
seek leave from the court when (1) parties do not stipulate to a
deposition, and (2) certain circumstances are present. For example, the
FRCP require leave when a party seeks to depose the same person twice,
depose a person outside the United States, or take more than ten
depositions. In cases before NTSB administrative law judges, parties
file motions when they do not stipulate to a deposition, in an effort
to persuade the administrative law judge to compel the deposition.
Therefore, FRCP 30(a) and 31(a), which require the absence of parties’
stipulation as a preliminary requirement for seeking leave, are
consistent with practice before the NTSB, which involves notifying the
presiding law judge to resolve disputes concerning whether a deposition
will occur. In its comment, the FAA stated this rule is inconsistent
with the requirements of FRCP 30(a) and 31(a), which require leave of
the court prior to noticing a deposition in certain circumstances. The
NTSB disagrees with this viewpoint, because parties will seek
resolution from an NTSB law judge whenever an opposing party refuses to
comply with a deposition request. Therefore, the NTSB will continue to
apply Sec.  821.19(a) in conjunction with FRCP 30(a) and 31(a), as set
forth in the interim final rule.
Section 821.19(b) (Parties’ Exchange of Information)
The NTSB declines to alter the language of Sec.  821.19(b); rather,
the NTSB will apply its rules codified in 49 CFR part 821 as “local
rules” that supplement and provide additional details concerning
overall compliance with the FRCP.
The NTSB recognizes the comments suggesting the NTSB mandate
scheduling orders in all cases, in conjunction with a formal discovery
plan and scheduling conference. The NTSB notes the Board’s rules
authorize its law judges to issue pre-hearing orders and conduct pre-
hearing conferences to regulate the conduct of hearings, including for
discovery matters. Consistent with that authority, all NTSB
administrative law judges now issue pre-hearing orders setting forth
timelines for discovery matters, consistent with the FRCP and the local
rules.
The NTSB maintains the prehearing orders issued, and any pre-
hearing

[[Page 57530]]

conferences conducted, by its administrative law judges will suffice to
regulate the discovery process consistent with the FRCP. The NTSB does
not believe its application of FRCP 26(f)(1) and (2), to the extent
these provisions require discovery conferences and discovery plans, is
practicable. Given the NTSB’s limited number of administrative law
judges and staff, conducting discovery conferences in all cases would
be unduly burdensome. As a result, although NTSB administrative law
judges will not prohibit parties from requesting discovery conferences
by telephone and may hold such conferences when needed, the NTSB will
not require judges to order discovery conferences in all cases.
Section 821.19(c) (Use of the Federal Rules of Civil Procedure)
The NTSB declines to make changes to Sec.  821.19(c). The NTSB
recognizes the FAA’s comment raises concerns with a specific reference
to FRCP 11 and states the NTSB would not be permitted to issue monetary
sanctions against practitioners. The NTSB notes the regulatory language
of Sec.  821.19(c), as amended, does not reference such sanctions; this
mention of sanctions in accordance with FRCP 11 appeared only in the
NTSB’s preamble of the interim final rule. 77 FR 63244.
The FAA suggests the NTSB include “as authorized by law” at the
end of Sec.  821.19(c). The NTSB believes it is self-evident that it
would only sanction a party “as authorized by law,” and therefore
does not believe it necessary to include such a phrase in the text of
the rule.

B. Applicability of the FRE

In the interim final rule, the NTSB amended Sec.  821.38 to provide
that in any proceeding under the rules in part 821, all evidence that
is relevant, material, reliable and probative, and not unduly
repetitious or cumulative, shall be admissible. Section 821.38 of the
interim final rule also stated all other evidence would be excluded,
and that the NTSB would apply the FRE to all proceedings, unless such
application would be inconsistent with the requirements of the APA.
The NTSB’s preamble explaining this change stated the amendment was
consistent with section 2(a) of the Pilot’s Bill of Rights, which
mandates the FRE be applied to NTSB proceedings under part 821,
subparts C, D, and F “to the extent practicable.” The NTSB modeled
the final sentence of the paragraph, which referred to the
Administrative Procedure Act (APA), on other agencies’ procedural rules
concerning the application of the FRE.\2\
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\2\ See, e.g., 46 CFR 502.156 (Federal Maritime Commission
rules); 49 CFR 386.56 (Federal Motor Carrier Safety Administration
rules).
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1. Comments Received
The NTSB received five comments addressing this change. The
comments from AOPA, Dixon and Snow, and the FAA suggest the NTSB amend
the final sentence of the paragraph, to remove or change the reference
to the APA. The FAA’s comment asserts the statement concerning the APA
is inconsistent with the FRE, because the FRE requires the exclusion of
hearsay evidence unless an exception applies to permit the evidence.
Both the FAA and the comment from Dixon and Snow recommend the NTSB
strike the phrase concerning the APA, and expressly state in the text
of the rule that hearsay is inadmissible, unless a hearsay exception
under the FRE applies.
The FAA also suggests the NTSB clarify whether the FRE will apply
only to proceedings conducted under subparts C, D, and F of part 821,
or whether the rules will apply to all proceedings (in particular,
subpart I, governing emergency cases).
As stated above, AOPA’s comment asserts the NTSB erred in making
the FRE “subordinate” to the APA’s rule on evidence; AOPA contends
the result of this statement concerning the APA is the NTSB’s practices
in admitting evidence will not significantly change. AOPA points out
the APA provides, “[a]ny oral or documentary evidence may be received,
but the agency as a matter of policy shall provide for the exclusion of
irrelevant, immaterial, or unduly repetitious evidence.” 5 U.S.C.
556(d) Section 821.38, however, states such evidence shall be
admissible. AOPA contends this distinction amounts to a conflict
between the rules.
The comment from GeoVelo recommends the NTSB repeal Sec.  821.21
because it is now “surplus.” Section 821.21, titled “Official
notice,” states that 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 must be given to all parties, who may file a petition
disputing that fact within 10 days.
In particular, GeoVelo states that Rule 201 of the Federal Rules of
Evidence (FRE 201) already addresses this circumstance. FRE 201,
titled, “Judicial notice of adjudicative facts,” includes the
following language:

(b) Kinds of Facts That May Be Judicially Noticed. The court may
judicially notice a fact that is not subject to reasonable dispute
because it:
(1) is generally known within the trial court’s territorial
jurisdiction; or
(2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.
(c) Taking Notice. The court:
(1) may take judicial notice on its own; or
(2) must take judicial notice if a party requests it and the court
is supplied with the necessary information.

The comment from Hays Hettinger disagrees with the language in the
Pilot’s Bill of Rights requiring application of the FRE to NTSB
proceedings. The commenter cites authority indicating the FRE should
not apply to administrative adjudications. Nevertheless, the commenter
agrees with the NTSB’s approach in applying the FRE to all proceedings,
by enacting the change to Sec.  821.38.
2. The NTSB’s Response to Comments Concerning the FRE
The NTSB carefully has considered all comments regarding the
application of the FRE. In the interest of ensuring the public fully
understands the NTSB’s intent to apply the FRE, and to confirm the
NTSB’s compliance with the statutory language, the NTSB herein changes
the final sentence of Sec.  821.38 to state as follows: “To the extent
practicable, the Federal Rules of Evidence will be applied in these
proceedings.” The NTSB is hopeful this language will assist in
avoiding conflicts between the APA and the statutory requirement to
apply the FRE. The NTSB is aware the APA allows administrative law
judges considerable discretion in overseeing the admission of evidence
at hearings, and permits hearsay evidence. However, the FRE clearly
excludes such evidence, unless an exception applies. In the interest of
ensuring all parties are aware the NTSB will apply the FRE in all
cases, the NTSB is removing the reference to the APA, which it had
included in the interim final rule.
The NTSB declines to include any specific language in its rules
concerning hearsay. The NTSB believes referencing specific portions of
the FRE is unnecessary, and could cause confusion if the NTSB included
indications that some, but not all, of the FRE would apply. The FRE
already contain detailed provisions concerning the exclusion of hearsay
evidence; \3\ therefore, the NTSB believes discussing hearsay evidence
in its rules is repetitious.
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\3\ See Fed. R. Evid. 801-807.
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Furthermore, the NTSB declines to reference the subparts of the
NTSB rules to which the FRE will apply. Section

[[Page 57531]]

821.38 is codified within subpart F of the NTSB Rules of Practice,
which addresses administrative hearings. The subpart does not contain
any language indicating its sections will only apply to certain types
of cases. Therefore, the NTSB has always applied the provisions within
subpart F to all types of hearings over which the NTSB presides. The
NTSB does not now believe a need exists to identify that Sec.  821.38
applies to certain types of cases; the NTSB’s intent is to apply the
section to all cases in which the NTSB holds a hearing.
The NTSB appreciates the suggestion concerning judicial notice of
documents; however, the NTSB does not believe Sec.  821.21 conflicts
with FRE 201. The NTSB’s administrative law judges, in their
discretion, take judicial notice of certain documents and other
evidence, and their act of doing so does not contravene any portion of
FRE 201.

C. Disclosure of the EIR

In the interim final rule, the NTSB included a requirement
concerning the FAA’s disclosure of its EIR, within Sec.  821.19(d). The
paragraph stated a respondent could move to dismiss the FAA’s complaint
when the FAA failed to provide the releasable portion of its EIR “with
its required notification to the respondent.” The paragraph included a
description of what the NTSB would consider to be the releasable
portion of the EIR; this description excluded several items, such as
any information that prohibited from disclosure by law, is privileged,
internal, would disclose the identity of a confidential source, not
relevant, or sensitive security information.
The NTSB explained in the preamble of the interim final rule that
this requirement was based on section 2(b) of the Pilot’s Bill of
Rights, which requires the FAA provide “timely, written notification”
to certificate holders who are the subject of an FAA enforcement action
regarding the “nature of the investigation.” In the notification, the
FAA must indicate the certificate holder need not respond to an FAA
letter of investigation and will not be adversely affected if he or she
elects not to respond. The statute requires the Administrator of the
FAA to make available the releasable portions of the EIR to each
affected certificate holder and provide certain air traffic data. The
statute further provides that the Administrator may delay this
notification if the FAA determines the notification would threaten the
integrity of the investigation.
1. Correspondence and Comments Received
On October 26, 2012, the FAA sent the NTSB’s General Counsel a
letter stating this requirement was contrary to the language of the
Pilot’s Bill of Rights. The FAA stated the Pilot’s Bill of Rights does
not require the FAA to release the EIR to a certificate holder at the
time it transmits its letter of investigation, wherein the FAA
typically informs the certificate holder that the FAA is investigating
a potential violation. The FAA’s letter further stated the NTSB
misunderstood an FAA Order (“FAA Compliance and Enforcement Program,”
available at http://www.faa.gov/documentLibrary/media/Order/2150.3%20B%20W-Chg%204.pdf), describing the FAA’s enforcement process
and general procedural matters. The FAA also emphasized the statute
only required the FAA to “make [the EIR] available” to certificate
holders, rather than automatically disclose it. The FAA requested the
NTSB immediately clarify the rule. The NTSB placed this letter in the
docket for this rulemaking. The NTSB General Counsel requested via a
telephone call that FAA counsel provide more information concerning the
FAA’s letter; the NTSB summarized this conversation in a memorandum,
which it also placed in the rulemaking docket.\4\ Following the
conversation, the NTSB General Counsel sent a letter to the FAA
indicating the NTSB believed the FAA’s concern originated only in a
sentence in the preamble of the interim final rule, in which the NTSB
stated it understood the FAA intended to release the EIR in conjunction
with its transmission of the letter of investigation in each case. The
language of Sec.  821.19(d), however, only indicated the FAA needed to
“provide the releasable portion of its EIR with its required
notification to the respondent.” The NTSB derived this language from
section 2(b) of the Pilot’s Bill of Rights. The FAA subsequently sent
another letter to the NTSB General Counsel, again reiterating its
concern that the rule would require the FAA to provide the EIR at the
same time it issued its letter of investigation.
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\4\ The NTSB also contacted counsel for AOPA, to offer the
opportunity for AOPA to provide an opinion concerning the timing of
the release of the EIR. A copy of a summary of the conversation with
AOPA counsel is also in the docket for this rulemaking.
—————————————————————————

The NTSB received six comments–including the FAA’s comment, which
the FAA submitted in addition to its letters–discussing the language
the NTSB set forth in Sec.  821.19(d). The Aviation Law Firm suggests
the NTSB require disclosure of the EIR contemporaneously with either
the FAA’s Notice of Proposed Certificate Action (NOPCA) or, in
emergency cases, with the emergency order. The firm states requiring
issuance of the EIR with the FAA’s complaint would be “ineffective”
and would increase delay. The firm also recommends the NTSB add a
statement in Sec.  821.19(d) indicating dismissals for failure to
release the EIR in a timely manner would occur with prejudice.
AOPA’s comment identifies two issues concerning the language of
Sec.  821.19(d): the releasable portions (and exclusions listed in
Sec.  821.19(d)(2)(i)-(vi) of the rule) and the timing of the required
release of the EIR. Concerning the releasable portions, AOPA states it
is “extreme” that the rule allows the FAA to determine
“unilaterally” the information it may withhold without oversight from
an administrative law judge. AOPA suggests the term “releasable
portions of the EIR” in the Pilot’s Bill of Rights suffices, and the
interim rule “now [limits] what we have always experienced to be
available to respondents when asking for `the releasable portions of
the EIR.’ ” AOPA contends a better overall rule would be to “allow
the law judge to rule on all of the other requested information, if an
FAA claim is disputed by respondent.” Concerning the timing of the
FAA’s provision of the EIR, AOPA urges the NTSB to keep the language in
the interim rule as-is for the near future, to determine how it works
in practice. AOPA states the NTSB’s interpretation in requiring the EIR
at the time the FAA provides its “timely, written notification” is
consistent with Congressional intent to provide respondents with the
information at the earliest possible time. AOPA also asserts this
practice will benefit the FAA by allowing the agency to work with
certificate holders more effectively in discussing the charges at
issue.
Some comments focus on the sanction of dismissal on motion the NTSB
set forth in Sec.  821.19(d). Aerolaw Offices suggests the NTSB
“strengthen” Sec.  821.19(d) to provide for sanctions (dismissal or
otherwise) for FAA’s partial failure to release the EIR. The firm
states that, as written, the rule only assumes total failure, but it
should set forth consequences for partial failures to release the EIR.
Aerolaw Offices also emphasizes this rule is important because critical
information may be lost if FAA does not provide the EIR in a timely
manner. Similarly, the comment from GeoVelo recommends the NTSB provide
all dismissals for failure to release the EIR occur with prejudice.

[[Page 57532]]

The comments from GeoVelo and Dixon and Snow also address the
preservation of evidence and the exemptions from disclosure listed in
Sec.  821.19(d). GeoVelo suggests the NTSB require the FAA immediately
to preserve all relevant information and notify all contractors once
FAA determines an EIR “is warranted.” GeoVelo further urges the NTSB
to require the FAA to include information about the time, manner and
which agency official made the notification to the contractor(s) in its
EIR notice to the certificate holder; in this regard, GeoVelo states
the NTSB should expand Sec.  821.19 to apply to more information than
EIRs, to include “all material evidence in its possession which may
serve to exonerate the airman as charged.” Similarly, Dixon and Snow
requests the NTSB remove from the list of exemptions “(ii) Information
that is an internal memorandum, note or writing prepared by a person
employed by the FAA or another government agency” because nothing
stops the FAA from asserting every document is an “internal
memorandum,” and because the “intent of discovery is to find out not
only the evidence obtained by the FAA but the process by which it was
obtained.” In this regard, Dixon and Snow contends exemption (ii)
within paragraph (d)(2) of Sec.  821.19 is an overly-broad exclusion.
Finally, following the letters from the FAA described above, the
FAA also submitted a comment, which again addresses the NTSB’s addition
of Sec.  821.19(d). Rather than focusing on the timing of the
disclosure, as its letters discussed, the FAA’s comment focuses on its
assertion that the NTSB does not have jurisdiction to enforce the EIR
availability requirement the Pilot’s Bill of Rights set forth.
Specifically, in its comment, the FAA states section 2(b)(2)(E) of the
Pilot’s Bill of Rights “is addressed solely to the FAA” to provide
timely, written notification that the EIR will be available. The FAA
states it has added a sentence in the new letters of investigation it
now issues, advising the certificate holder that the EIR will be
available. The FAA contends Sec.  821.19(d), as currently written,
undermines the authority of the FAA to investigate violations, and is
contrary to the “expressed intent of Congress.” The FAA states the
Pilot’s Bill of Rights only requires the NTSB to “figure out the
extent to which it is practicable to apply the [FRCP] and [FRE] in any
proceeding under . . . subpart[s] C, D, and F.” The FAA asserts the
FRCP do not discuss pre-complaint discovery; therefore, the FAA
recommends the NTSB remove Sec.  821.19(d).
2. Response to Comments
The NTSB carefully has considered all discussion within the
comments concerning Sec.  821.19(d). In particular, the NTSB recognizes
Congress determined certificate holders must obtain access to the EIR
in a timely fashion, in order to understand the FAA’s cases and prepare
their defenses. The NTSB, however, notes the plain language of the
Pilot’s Bill of Rights does not state the NTSB must provide an
enforcement mechanism for release of the EIR. In addition, the NTSB is
reluctant to insert itself in matters relating to obligations imposed
on the FAA prior to the time the NTSB obtains jurisdiction in these
cases. The NTSB always has interpreted its authority to oversee and
decide airman appeals commences once the appeal is filed. The Pilot’s
Bill of Rights did not change the NTSB’s authority in this regard.
As a result, the NTSB herein updates the language of Sec.
821.19(d) to provide for relief on motion if the FAA does not provide a
copy of the EIR in conjunction with its issuance of the complaint. The
new text will read as set forth in the regulatory text of this rule.
Specifically, it provides the respondent may move to dismiss the
complaint when the respondent requests the EIR, but the Administrator
fails to provide its releasable portions by the time the Administrator
serves the complaint on the respondent.
The NTSB also has updated Sec.  821.19(d)(2)(ii), to clarify it
will consider the FAA’s work product exempt from disclosure when it
reflects the internal deliberative process undertaken in the
enforcement investigation. In this regard, the NTSB administrative law
judges will apply the work product doctrine as described in FRCP
26(b)(3). As practitioners know, the work product doctrine generally
applies to documents created in anticipation of litigation. The NTSB
expects the FAA to apply the work product exemption to the portions of
the EIR that reflect the internal deliberations relevant to the
enforcement investigation; the NTSB anticipates documents that fall
within the work product exemption would reflect internal deliberations.
The NTSB recognizes some comments urged the NTSB to remove
exemption (ii). However, the NTSB believes it only fair to allow the
FAA to protect its internal deliberations, as respondents’ attorneys
consider their documents containing work product and internal
deliberations to be exempt from disclosure. The basis for the work
product doctrine–to promote the adversary process by insulating an
attorney’s litigation preparation from discovery–also applies to FAA
certificate enforcement actions.
As summarized above, AOPA’s comment included the suggestion that
the NTSB merely rely on the phrase “releasable portions of the EIR,”
from the Pilot’s Bill of Rights, in lieu of listing any exemptions.
AOPA suggests the NTSB simply allow its administrative law judges to
make releasability determinations on any disputed portions of the EIR.
The NTSB declines to adopt such general language for Sec.  821.19(d).
Without some guidance, parties would not know what portions of the EIR
are releasable, as neither the Pilot’s Bill of Rights, nor any
supporting information from Congress, provides such information. As a
result, parties would not be able to anticipate the disclosure
requirement, and NTSB administrative law judges would be placed in the
position of having to resolve disputes concerning the releasable
portions in a piecemeal manner.
The NTSB also recognizes some commenters suggest the NTSB
strengthen the sanction it set forth in Sec.  821.19(d); in particular,
Aerolaw Offices recommends the NTSB provide for consequences for the
FAA’s “partial” failure to release the EIR. The NTSB believes its
administrative law judges are best equipped to address any such
“partial” failures. Also with regard to sanction, the Aviation Law
Firm suggests the NTSB provide for dismissal with prejudice when the
FAA fails to release the EIR as required. Again, the NTSB declines to
adopt a generally applicable rule concerning whether a dismissal will
occur with or without prejudice; instead, the NTSB believes its
administrative law judges are best suited to make such a determination.
3. Section 821.55(d)
The updated language of Sec.  821.19(d) clearly applies to non-
emergency cases. In an NPRM published elsewhere in today’s issue of the
Federal Register, the NTSB proposes incorporating a similar requirement
at paragraph (d) of Sec.  821.55, regarding the release of the EIR in
emergency cases proceeding under subpart I of the NTSB’s rules.

D. Judicial Review of Board Orders

The NTSB received two comments discussing its change to Sec.
821.64, which provides “[j]udicial 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

[[Page 57533]]

with the appropriate United States Court of Appeals or United States
District Court. . .” The sole change the interim final rule included
was the addition of “United States District Court.” This addition is
the result of subsection 3(d)(1) of the Pilot’s Bill of Rights, which
provides for judicial review in either a Federal district court or a
Federal court of appeals. Previously, only a United States Court of
Appeals had jurisdiction to review a final action by the Board.
Smith Amundsen Aerospace submitted a comment that includes a
discussion of the NTSB’s change to Sec.  821.64. The firm suggests the
NTSB review the section “to recognize that review at the District
Court level affords the respondent a [de novo] trial on the merits,
whereas an appeal to the appropriate Court of Appeals (from either the
District Court, or directly from the Board’s decision) should be
confined to the record compiled (by the District Court or Board,
respectively).” The NTSB does not believe it prudent to change its
regulation to inform a reviewing court what type of review the court
has. The court overseeing review of an NTSB decision will review the
language of the Pilot’s Bill of Rights to determine the appropriate
type of review.
The FAA’s comment also addresses the NTSB’s addition to Sec.
821.64. The FAA states the option to appeal a Board order to Federal
District Court is only available in certain cases. The FAA notes Sec.
821.64(a) “does not accurately describe the subset of NTSB final
orders subject . . . to appeal to [District Court],” nor does it cite
statutory authority. The FAA suggests Sec.  821.64(a) add a reference
to 49 U.S.C. 44703, and clarify judicial review is only available in
the cases described in section 2(d)(1) of the Pilot’s Bill of Rights.
Otherwise, the FAA asserts judicial review is only available in a
Federal Court of Appeals under 49 U.S.C. 1153 and 46110. The NTSB has
determined it will include a reference in Sec.  821.64 to the Pilot’s
Bill of Rights, and believes this inclusion will suffice to inform
parties of their appeal rights. The NTSB declines to include any
specific information concerning courts’ jurisdiction or review
authority. In this regard, the NTSB would expect the parties to make
jurisdictional arguments before the reviewing court.

E. Disclosure of Air Traffic Data

The NTSB received two comments in response to the interim final
rule requesting the NTSB implement a rule to enforce the FAA’s
requirement to release air traffic data. Section 2(b)(4) of the Pilot’s
Bill of Rights requires the FAA to provide an airman with “timely
access to any air traffic data in the possession of the Federal
Aviation Administration that would facilitate the individual’s ability
to productively participate in a proceeding relating to an
investigation described in such paragraph.” The FAA’s implementation
of this requirement includes instructions on how an airman may submit a
request for such data, which, due to its nature and volume, is on a
rapid destruction schedule. Certificate holders must request the data
as soon as possible, as the data may exist in contractor records and
may be destroyed if the certificate holder waits too long to make the
request.
AOPA’s comment includes the general suggestion that the NTSB
require in Sec.  821.19 the FAA to disclose air traffic data in
accordance with the Pilot’s Bill of Rights. GeoVelo’s comment states
FRCP 26(a) requires the FAA to disclose such data. GeoVelo states the
FAA must do more than simply post a Web site address at which a pilot
may request preservation of the data. GeoVelo suggests the FAA may
“run out the clock” to arrange for disposal of the data before the
certificate holder can obtain it. As a result, GeoVelo also suggests
the NTSB modify Sec.  821.19(d) to require the FAA to provide the data
as soon as the FAA decides “an EIR is warranted.”
The NTSB declines to implement any requirement concerning air
traffic data. Given the NTSB’s determination that its jurisdiction over
an FAA certificate enforcement case on appeal does not commence until
the certificate holder files an appeal, the NTSB cannot enforce a
requirement that the FAA release air traffic data as soon as it begins
its investigation into an alleged violation. The Pilot’s Bill of Rights
does not include any changes in the NTSB’s authority to enable the NTSB
to oversee any pre-appeal matters. Neither of the comments the NTSB
received on the issue of air traffic data addresses this jurisdictional
issue.

F. Emergency Review Determinations

Finally, the NTSB recognizes three of the comments it received in
response to the interim final rule once again request the NTSB amend
Sec.  821.54(e) of its rules. This section sets forth the standard of
review of the FAA’s decision to pursue a case as an emergency.
The NTSB received two duplicative comments from National Air
Transportation Association (NATA) and National Business Aviation
Association (NBAA). These comments contain the same text as those
comments NATA and NBAA submitted in response to the NTSB’s ANPRM and
NPRM concerning changes to parts 821 and 826. GeoVelo’s comment raised
the same argument concerning an airman’s ability to challenge the facts
on which the FAA’s emergency action is based.
The NTSB responded to the issues raised in these comments in its
NPRM and Final Rule on that subject.\5\ This interim final rule did not
consider or implement changes to Sec.  821.54(e). As a result, the NTSB
refers commenters to its previous responses, and declines to address
again the arguments raised in the comments concerning Sec.  821.54(e).
—————————————————————————

\5\ 77 FR 6761, 6765-6766 (Feb. 9, 2012); 77 FR 63247-63248
(Oct. 16, 2012).
—————————————————————————

III. Regulatory Analysis

This rule is not a “significant regulatory action” under section
3(f) of Executive Order 12866, Regulatory Planning and Review, and does
not require an assessment of the potential costs and benefits under
section 6(a)(3) of that Order. As such, the Office of Management and
Budget has not reviewed this rule under Executive Order 12866.
Likewise, this rule does not require an analysis under the Unfunded
Mandates Reform Act, 2 U.S.C. 1501-1571, or the National Environmental
Policy Act, 42 U.S.C. 4321-4347.
In addition, the NTSB has considered whether this rule would have a
significant economic impact on a substantial number of small entities,
under the Regulatory Flexibility Act (5 U.S.C. 601-612). The NTSB
certifies under 5 U.S.C. 605(b) that this rule would not have a
significant economic impact on a substantial number of small entities.
Moreover, in accordance with 5 U.S.C. 605(b), the NTSB will submit this
certification to the Chief Counsel for Advocacy at the Small Business
Administration.
The NTSB does not anticipate this rule will have a substantial,
direct effect on state or local governments or will preempt state law;
as such, this rule does not have implications for federalism under
Executive Order 13132, Federalism. This rule also complies with all
applicable standards in sections 3(a) and 3(b)(2) of Executive Order
12988, Civil Justice Reform, to minimize litigation, eliminate
ambiguity, and reduce burden. In addition, the NTSB has evaluated this
rule under: Executive Order 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights; Executive
Order 13045, Protection of Children from Environmental Health Risks and
Safety

[[Page 57534]]

Risks; Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments; Executive Order 13211, Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use; and the National Technology Transfer and Advancement Act, 15
U.S.C. 272 note. The NTSB has concluded that this rule does not
contravene any of the requirements set forth in these Executive Orders
or statutes, nor does this rule prompt further consideration with
regard to such requirements.

List of Subjects for 49 CFR Part 821

Administrative practice and procedure, Airmen, Aviation safety.

For the reasons discussed in the preamble, the NTSB amends 49 CFR
part 821 as follows:

PART 821–RULES OF PRACTICE IN AIR SAFETY PROCEEDINGS

0
1. The authority citation for 49 CFR part 821 continues to read as
follows:

Authority: 49 U.S.C. 1101-1155, 44701-44723, 46301, Pub. L. 112-
153, unless otherwise noted.

0
2. Revise Sec.  821.5 to read as follows:

Sec.  821.5  Procedural rules.

In proceedings under subparts C, D, F, and I, for situations not
covered by a specific Board rule, the Federal Rules of Civil Procedure
will be followed to the extent practicable.

0
3. In Sec.  821.19, revise paragraph (d) to read as follows:

Sec.  821.19  Depositions and other discovery.

* * * * *
(d) Failure to provide copy of releasable portion of Enforcement
Investigative Report (EIR). (1) Except as provided in Sec.  821.55 with
respect to emergency proceedings, where the respondent requests the EIR
and the Administrator fails to provide the releasable portion of the
EIR to the respondent by the time it serves the complaint on the
respondent, the respondent may move to dismiss the complaint or for
other relief and, unless the Administrator establishes good cause for
that failure, the law judge shall order such relief as he or she deems
appropriate, after considering the parties’ arguments.
(2) The releasable portion of the EIR shall include all information
in the EIR, except for the following:
(i) Information that is privileged;
(ii) Information that constitutes work product or reflects internal
deliberative process;
(iii) Information that would disclose the identity of a
confidential source;
(iv) Information of which applicable law prohibits disclosure;
(v) Information about which the law judge grants leave to withhold
as not relevant to the subject matter of the proceeding or otherwise,
for good cause shown; or
(vi) Sensitive security information, as defined at 49 U.S.C. 40119
and 49 CFR 15.5.
(3) Nothing in this section shall be interpreted as preventing the
Administrator from releasing to the respondent information in addition
to that which is contained in the releasable portion of the EIR.

0
4. Revise Sec.  821.38 to read as follows:

Sec.  821.38  Evidence.

In any proceeding under the rules in this part, all evidence which
is relevant, material, reliable and probative, and not unduly
repetitious or cumulative, shall be admissible. All other evidence
shall be excluded. The Federal Rules of Evidence will be applied in
these proceedings to the extent practicable.

0
5. In Sec.  821.64, revise paragraph (a) to read as follows:

Sec.  821.64  Judicial review.

(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
or United States District Court, pursuant to the provisions of Pub. L.
112-53, 126 Stat. 1159 (August 3, 2012), 49 U.S.C. 44703 note. Such
petition is due 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.
* * * * *