PART 821--RULES OF PRACTICE IN AIR SAFETY PROCEEDINGS
Subpart A--General Provisions
Sec.
821.1 Definitions.
821.2 Applicability and description of part.
Subpart B--General Rules Applicable to Petitions for Review, Appeals to the
Board, and Appeals from Initial Decisions
821.6 Appearances and rights of witnesses.
821.7 Filing of documents with the Board.
821.8 Service of documents.
821.9 Intervention.
821.10 Computation of time.
821.11 Extension of time.
821.12 Amendment and withdrawal of pleadings.
821.13 Waivers.
821.14 Motions.
821.15 Motion to disqualify a Board Member.
821.16 Appeals from law judge's interlocutory rulings and motions.
821.17 Motions to dismiss and for judgment on the pleadings.
821.18 Motion for more definite statement.
821.19 Depositions and other discovery.
821.20 Subpoenas, witness fees, and appearances of Board Members, officers,
or employees.
821.21 Official notice.
Subpart C--Special Rules Applicable to Proceedings Under Section 602(b) of
the Act
821.24 Initiation of proceedings.
821.25 Burden of proof.
821.26 Motion to dismiss petition for review for lack of standing.
Subpart D--Special Rules Applicable to Proceedings Under Section 609 of the
Act
821.30 Initiation of proceedings.
821.31 Complaint procedure.
821.32 Burden of proof.
821.33 Motion to dismiss stale complaint.
Subpart E--Law Judges
821.35 Assignment, duties, and powers.
Subpart F--Hearings
821.37 Notice of hearing.
821.38 Evidence.
821.39 Argument and submissions.
821.40 Record.
821.41 Certification to the Board.
Subpart G--Initial Decision
821.42 Initial decision by law judge.
821.43 Effect of law judge's initial decision, and filing an appeal
therefrom.
Subpart H--Appeals from Initial Decisions
821.47 Notice of appeal.
821.48 Briefs and oral argument.
821.49 Issues on appeal.
821.50 Petitions for rehearing, reargument, reconsideration, or modification
of an order of the Board.
Subpart I--Rules Applicable to Emergency Proceedings
821.54 General.
821.55 Appeal, complaint, answer to the complaint, and motions.
821.56 Hearing and initial decision.
821.57 Procedure on appeal.
Subpart J--Ex Parte Communications
821.60 Definitions.
821.61 Prohibited ex parte communications.
821.62 Procedures for handling ex parte communication.
821.63 Requirement to show cause and imposition of sanction.
Subpart K--Judicial Review of Board Orders
821.64 Judicial review.
Authority: Title VI, Federal Aviation Act of 1958, as amended (49 U.S.C.
App. 1421 et seq.); Independent Safety Board Act of 1974, Pub. L. 93-633, 88
Stat. 2166 (49 U.S.C. App. 1901, et seq.), and FAA Civil Penalty
Administrative Assessment Act of 1992, Pub. L. 102-345 (49 U.S.C. App. 1471),
unless otherwise noted.
Source: 40 FR 30243, July 17, 1975, unless otherwise noted.
Subpart A--General Provisions
Sec. 821.1 Definitions.
As used in this part:
"Act" means the Federal Aviation Act of 1958, as amended (49 U.S.C. 1301 et
seq.);
"Administrator" means the Administrator of the Federal Aviation
Administration (FAA);
"Airman certificate" means any certificate issued by the FAA to an airman
and shall include medical certificates required for an airman;
"Appeal from an initial decision" means a request to the Board to review a
law judge's decision;
"Appeal to the Board" means a request to the Board for the review by a law
judge of an order of the Administrator;
"Board" means the National Transportation Safety Board;
"Certificate" means any certificate issued by the Administrator under Title
VI of the Act;
"Chief Law Judge" means the administrative law judge in charge of the
Office of Administrative Law Judges;
"Complaint" means an order of the Administrator from which an appeal to the
Board has been taken pursuant to sections 501(e)(2), 609, 611(c), or 901 of
the Act.
"Emergency order" means an order of the Administrator issued pursuant to
section 609 of the Act, which recites that an emergency exists and that
safety in air commerce or air transportation and the public interest require
the immediate effectiveness of such order;
"Flight engineer" means a person who holds a flight engineer certificate
issued under part 63 of title 14 of the Code of Federal Regulations.
"Initial decision" means the law judge's decision on the issue remaining
for disposition at the close of a hearing before him and/or an order granting
a motion to dismiss in lieu of an answer, as provided in Sec. 821.17, and
terminating the proceeding, except that "initial decision" does not include
cases where the record is certified to the Board, with or without a
recommended decision, or orders partly granting a motion to dismiss and
requiring an answer to any remaining allegation, or rulings by the law judge
on interlocutory matters appealed to the Board under Sec. 821.16;
"Law judge" means the administrative law judge assigned to hear and preside
over the respective proceedings;
"Mechanic" means a person who holds a mechanic certificate issued under
part 65 of title 14 of the Code of Federal Regulations.
"Order" means the document (sometimes also called a complaint) in which the
Administrator seeks to impose a civil penalty or amend, modify, suspend or
revoke a certificate.
"Petition for review" means a petition filed pursuant to section 602(b) of
the Act for review of the Administrator's denial of an application for
issuance or renewal of an airman certificate;
"Petitioner" means a person who has filed a petition for review;
"Pilot" means a person who holds a pilot certificate issued under part 61
of title 14 of the Code of Federal Regulations.
"Repairman" means a person who holds a repairman certificate issued under
part 65 of Title 14 of the Code of Federal Regulations.
"Respondent" means the holder of a certificate who has appealed to the
Board from an order of the Administrator imposing a civil penalty or
amending, modifying, suspending, or revoking a certificate.
Terms defined in the Act are used as so defined.
[40 FR 30243, July 17, 1975, as amended at 58 FR 11380, Feb. 25, 1993]
SUMMARY: The NTSB is adopting interim rules to implement the FAA Civil
Penalty Administrative Assessment Act of 1992, signed into law on August 26,
1992. This law transfers adjudication of appeals of civil penalties assessed
by the Federal Aviation Administrator against pilots, flight engineers,
mechanics, and repairmen from the FAA to the NTSB. In light of the immediate
effectiveness of the law, the NTSB is adopting interim rules without notice
and comment. Comments are invited and will be considered in the formulation
of final rules.
DATES: The interim rules are effective on February 25, 1993.
The provisions of this part govern all air safety proceedings, including
proceedings involving airman medical certification, before a law judge on
petition for review of the denial of any airman certificate or on an appeal
from any order of the Administrator amending, modifying, suspending or
revoking any certificate. The provisions of this part also govern all
proceedings on appeal from an order of the Administrator imposing a civil
penalty on a flight engineer, mechanic, pilot, or repairman, where the
underlying violation occurred on or after August 26, 1992, and all
proceedings on appeal to the Board from any order or decision of a law judge.
SUMMARY: The NTSB is adopting interim rules to implement the FAA Civil
Penalty Administrative Assessment Act of 1992, signed into law on August 26,
1992. This law transfers adjudication of appeals of civil penalties assessed
by the Federal Aviation Administrator against pilots, flight engineers,
mechanics, and repairmen from the FAA to the NTSB. In light of the immediate
effectiveness of the law, the NTSB is adopting interim rules without notice
and comment. Comments are invited and will be considered in the formulation
of final rules.
DATES: The interim rules are effective on February 25, 1993.
Subpart B--General Rules Applicable to Petitions for Review, Appeals to the
Board, and Appeals From Initial Decisions
Sec. 821.6 Appearances and rights of witnesses.
(a) Any party to a proceeding may appear and be heard in person or by
attorney or other representative designated by him. No register of persons
who may practice before the Board is maintained, and no application for
admission to practice is required. Upon hearing, and for good cause shown,
the Board may suspend or bar any person from practicing before it.
(b) Any person appearing in person in any proceeding governed by this part,
may be accompanied, represented, and advised by counsel and may be examined
by his own counsel or representative.
(c) Any person who submits data or evidence in a proceeding governed by
this part, may by timely request procure a copy of any document submitted by
him, or a copy of any transcript made of his testimony on payment of
reasonable costs. Original documents or data or evidence may be retained by a
party upon permission of the law judge or the Board, upon substitution of a
copy therefor.
(d) Any party to a proceeding who is represented by an attorney shall
notify the Board of the name and address of that attorney. In the event of a
change in counsel of record, a party shall notify the Board, in the manner
provided in Sec. 821.7(a), and the other parties to the proceeding, prior to
participating in any way, including the filing of doucments, in any
proceeding.
[40 FR 30243, July 17, 1975, as amended at 49 FR 28249, July 11, 1984]
Sec. 821.7 Filing of documents with the Board.
(a) Filing address, date and method of filing. Generally, documents are to
be filed with the Office of Administrative Law Judges. However, subsequent to
the filing of a notice of appeal from a law judge's final decision or order
(written or oral), all documents should be submitted to the Office of General
Counsel. The documents should be directed to the proper office at the
National Transportation Safety Board, Washington, DC 20594. Filing of any
document shall be by personal delivery or by mail (including United States
Government franked envelope). Such documents shall be deemed filed on the
date of personal delivery, on the mailing date shown on the certificate of
service, on the date shown on the postmark if there is no certificate of
service, or on the mailing date shown by other evidence if there is no
certificate of service and no postmark.
(b) Number of copies. Unless otherwise specified, an executed original and
three true copies of each document shall be filed with the appropriate office
of the Board. Copies need not be signed, but the name of the person signing
the original shall be shown.
(c) Form. Petitions for review or appeals to the Board and appeals from
initial decisions may be in the form of a letter to the Board signed by the
petitioner or the party appealing and shall be typewritten or in legible
handwriting.
(d) Contents. Each document shall contain a concise and complete statement
of the facts relied upon and the relief sought.
(e) Subscription. The original of every document filed shall be signed by
the person filing it or his duly authorized representative.
(f) Designation of person to receive service. The initial document filed
shall state on the first page the name and post office address of the person
or persons who may be served with documents in the proceeding.
(g) Motions, requests, and documents. All motions, requests, and documents
in connection with petitions for review and appeals to the Board shall be
filed with the chief law judge, until such time as he assigns a law judge to
preside over the proceeding.
[40 FR 30243, July 17, 1975, as amended at 49 FR 28249, July 11, 1984; 56
FR 56172, Nov. 1, 1991]
SUMMARY: This change of addressee and correction to the rules of practice
in air safety proceedings in Part 821 are being made, one, to reflect a
change in the NTSB Office to which certain documents are directed and
second, to correct an error which resulted in the omission of a clause in
Sec. 821.10 as published in the Code of Federal Regulations. The change in
the NTSB Office is intended solely to streamline the flow of documents
within the NTSB itself.
(a) Service by the Board. The Board will serve orders, notices of hearing,
and written initial decisions upon all parties to the proceeding by certified
mail. Other documents will be served by certified mail or by regular mail
(including U.S. Government franked envelope).
(b) Service by others. Copies of all documents filed with the Board must be
served upon all parties to the proceeding by the person filing them.
(c) Service by others. Service may be made by personal delivery, by
certified mail, or by regular mail (including U.S. Government franked
envelope).
(d) Who may be served. Service upon a party or person may be made upon a
person designated in accordance with Sec. 821.7(f) to receive service. If no
such person is designated, service may be made upon the party himself, if he
is an individual, or upon an officer of a corporation or association, a
member of a partnership, or an agent of an air carrier designated under
section 1005(b) of the Act.
(e) Where service may be made. Service by regular or certified mail shall
be made at the address of the person designated in accordance with Sec.
821.7(f) to receive service, or, if no such person is designated, at the
usual residence or principal place of business of the party, or, if not
known, at the address last furnished by him to the Federal Aviation
Administration, except that an agent designated by an air carrier under
section 1005(b) of the Act shall be served only at his office or usual place
of residence. Service by mail on the Administrator shall be made at the
office of his designee to receive service, or if none, at the Federal
Aviation Administration, Office of the Chief Counsel, Washington, DC 20591.
Personal service may be made on any of the persons described in paragraph (d)
of this section wherever they may be found, except that an agent designated
by an air carrier under section 1005(b) of the Act may be served only at his
office or usual place of residence.
(f) Certificate of service. A certificate of service shall accompany all
documents when they are tendered for filing and shall consist of a
certificate of mailing executed by the person mailing the document.
(g) Presumption of service. There shall be a presumption of lawful service
in the following instances:
(1) Where acknowledgement of receipt is made by a person who customarily
receives mail or receives it in the ordinary course of business at either the
residence or principal place of business of a person designated in accordance
with Sec. 821.7(f) to receive service; or
(2) Where there is no designee, acknowledgment of receipt at the residence
or principal place of business of the party himself, by a person who
customarily receives mail or receives it in the ordinary course of business;
or
(3) Where a properly addressed envelope, indicating that it had been sent
by regular, registered, or certified mail, has been returned marked
"undelivered," "unclaimed," or "refused."
(h) Date of service. Whenever proof of service by mail is made, the date of
service shall be the mailing date shown on the certificate of service, the
mailing date shown by the postmark if there is no certificate of service, or
the mailing date as shown by other evidence if there is no certificate of
service and no postmark. Where personal delivery is made, the date of service
shall be the date of personal delivery.
[40 FR 30243, July 17, 1975, as amended at 49 FR 28249, July 11, 1984]
Sec. 821.9 Intervention.
Any person may move for leave to intervene in a proceeding and may become a
party thereto, if the law judge finds that such person may be bound by any
order to be entered in the proceeding, or that such person has a property,
financial, or other legitimate interest which may not be adequately
represented by existing parties, and that such intervention will not unduly
broaden the issues or delay the proceedings. Except for good cause shown, no
motion for leave to intervene will be entertained if filed less than 10 days
prior to hearing. The extent to which an intervenor may participate in the
proceedings is within the discretion of the law judge.
[49 FR 28249, July 11, 1984]
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 a legal holiday.
Saturdays, Sundays, and legal holidays for the Board shall be computed in the
calculation of time in all emergency cases under subpart I of this part and
shall be counted in the computation of time in all nonemergency cases where
the period of time involves 7 days or more.
SUMMARY: This change of addressee and correction to the rules of practice
in air safety proceedings in Part 821 are being made, one, to reflect a
change in the NTSB Office to which certain documents are directed and
second, to correct an error which resulted in the omission of a clause in
Sec. 821.10 as published in the Code of Federal Regulations. The change in
the NTSB Office is intended solely to streamline the flow of documents
within the NTSB itself.
Upon written request filed with the Board and served upon all parties, and
for good cause shown, the chief law judge, the law judge, or the Board, may
grant an extension of time to file any document except a petition for
reconsideration. Extensions of time to file petitions for reconsideration
will be granted only in extraordinary circumstances.
Sec. 821.12 Amendment and withdrawal of pleadings.
(a) Amendment. At any time more than 15 days prior to the time of hearing,
a party may amend his pleadings by filing the amended pleading with the Board
and serving copies on the other parties. After that time, amendment shall be
allowed only at the discretion of the law judge. Where amendment to an
answerable pleading has been allowed, the law judge shall allow the adverse
party a reasonable opportunity to answer.
(b) Withdrawal. A party may withdraw his pleadings only upon approval of
the law judge or the Board.
Sec. 821.13 Waivers.
Waivers of any rights provided by statute or regulation shall either be in
writing, or by stipulation made at a hearing and entered into the record, and
shall set forth their precise terms and conditions.
Sec. 821.14 Motions.
(a) General. An application to the Board or to a law judge for an order or
ruling not otherwise specifically provided for in this part shall be by
motion. Prior to the assignment of a law judge, all motions shall be
addressed to the chief law judge. Thereafter, and prior to the expiration of
the period within which an appeal from the law judge's initial decision may
be filed, or the certification of the record to the Board, all motions shall
be addressed to the law judge. At all other times, motions shall be addressed
to the Board. All motions not specifically provided for in any other section
of this part shall be made at an appropriate time, depending upon the nature
thereof and the relief requested.
(b) Form and contents. Unless made during a hearing, motions shall be made
in writing, shall state with particularity the grounds for the relief sought,
and the relief sought, and shall be accompanied by affidavits or other
evidence relied upon. Motions introduced during hearings may be made orally
on the record, unless the law judge directs otherwise.
(c) Answers to motions. Except when a motion is made during a hearing, any
party may file an answer in support of or in opposition to a motion,
accompanied by such affidavits or other evidence as he desires to rely upon,
provided that the answer is filed with 15 days after the motion has been
served upon him, or such other period as the Board or a law judge may fix.
Where a motion is made during a hearing, the answer and the ruling thereon
may be made at the hearing, or orally or in writing within such time as the
law judge may fix.
(d) Oral argument; briefs. No oral argument will be heard on motions unless
the Board or the law judge directs otherwise. Written memoranda or briefs may
be filed with motions or answers to motions, stating the points and
authorities relied upon in support of the positions taken.
(e) Disposition of motions. Except as provided in paragraph (c) of this
section for rulings on motions made at a hearing, the law judge shall pass
upon all motions properly addressed to him, unless he finds that a prompt
decision by the Board is essential to the proper conduct of the proceeding,
in which case he may refer such motion to the Board for decision.
(f) Effect of pendency of motions. Except as provided in Secs. 821.17(a)
and 821.18, the filing or pendency of a motion shall not automatically alter
or extend the time fixed in this part (or any extension granted thereunder)
to take action by the parties.
[40 FR 30243, July 17, 1975, as amended at 54 FR 12203, Mar. 24, 1989]
Sec. 821.15 Motion to disqualify a Board Member.
A motion requesting a Board Member to disqualify himself shall be filed
with the Board, supported by an affidavit setting forth grounds for
disqualification. In nonemergency proceedings, where an appeal from an
initial decision is filed, such motion shall be filed on or before the date
on which the reply brief is due, pursuant to Sec. 821.48(d). In emergency
proceedings, where a notice of appeal has been filed, such motion shall be
filed on or before the date the reply brief is due, pursuant to Sec.
821.57(b). Failure to file a timely motion shall be deemed a waiver of any
claim of disqualification. Application for leave to file an untimely motion
may be made, accompanied by an affidavit setting forth in detail why the
facts relied upon as grounds for disqualification were not known and could
not have been discovered with reasonable diligence within the prescribed
time.
Sec. 821.16 Appeals from law judge's interlocutory rulings and motions.
Rulings of law judges on motions may not be appealed to the Board prior to
its consideration of the entire proceeding, except in extraordinary
circumstances and with the consent of the law judge who made the ruling. An
appeal shall be disallowed unless the law judge finds, either on the record
or in writing, that to allow such an appeal is necessary to prevent
substantial detriment to the public interest or undue prejudice to any party.
If an appeal is allowed, any party may file a brief with the Board within
such time as the law judge directs. No oral argument will be heard unless the
Board directs otherwise. The rulings of the law judge on motion may be
reviewed by the Board in connection with its appellate action in the
proceeding, irrespective of the filing of an appeal from the motion or any
action taken thereon.
Sec. 821.17 Motion to dismiss and for judgment on the pleadings.
(a) General. A motion to dismiss may be filed within the time limitation
for filing an answer, except as otherwise provided in paragraph (d) of this
section. If the motion is not granted in its entirety, the answer shall be
filed within 10 days of service of the law judge's order on the motion.
(b) Judgment on the pleadings. A party may file a motion for judgment on
the pleadings where no answer has been filed or where there are no issues to
be resolved.
(c) Appeal of dismissal orders and grants of motions for judgment on the
pleadings. When a law judge grants a motion for judgment on the pleadings or
a motion to dismiss in lieu of an answer and terminates the proceeding
without a hearing, an appeal of such order to the Board may be filed pursuant
to the provisions of Sec. 821.47. When a law judge grants a motion to dimiss
in part, Sec. 821.16 is applicable.
(d) Motions to dismiss for lack of jurisdiction. A motion to dismiss on the
ground that the Board lacks jurisdiction may be made at any time.
[49 FR 28249, July 11, 1984]
Sec. 821.18 Motion for more definite statement.
(a) A party, in lieu of an answer, may file a motion requesting that the
allegations in the complaint or the petition be made more definite and
certain. The motion shall point out the defects complained of and the details
desired. If the motion is granted and the law judge's order is not complied
with within 15 days after notice, the law judge shall strike the allegation
or allegations in any complaint or petition to which the motion is directed.
If the motion is denied, the moving party shall file an answer within 10 days
after the denial.
(b) A party may file a motion to clarify an answer in the event that it
fails to respond clearly either to the complaint or to the petition for
review. Such a motion may be granted at the discretion of the law judge.
[49 FR 28249, July 11, 1984]
Sec. 821.19 Depositions and other discovery.
(a) Initiation of discovery. After a petition for review or a complaint is
filed, any party may take the testimony of any person, including a party, by
deposition, upon oral examination or written questions, without seeking prior
Board approval. Reasonable notice shall be given in writing to the other
parties of record stating the name of the witness and the time and place of
the taking of the deposition. A copy of any notice of deposition shall be
served on the Office of Administrative Law Judges. In other respects, the
taking of any deposition shall be in compliance with the provisions of
section 1004 of the Act.
(b) Exchange of information by parties. At any time before hearing, after
the assignment of a proceeding to a law judge has been made in accordance
with Sec. 821.35(a), at the instance of either party, the parties or their
representatives may exchange information, such as witness lists, exhibit
lists, curricula vitae and bibliographies of expert witnesses, and other
data. In the event of a dispute, the law judge may issue an order directing
compliance with any ruling he has made in respect to discovery. A party may
also serve written interrogatories on the opposing party. A copy of any such
interrogatories shall be served on the law judge assigned to the proceeding.
(c) Use of the Federal Rules of Civil Procedure. Those portions of the
Federal Rules of Civil Procedure that pertain to depositions and discovery
may be used as a general guide for discovery practice in proceedings before
the Board where appropriate. The Federal Rules and the case law that
construes them shall be considered by the Board and its law judges as
instructive rather than controlling.
[49 FR 28250, July 11, 1984]
Sec. 821.20 Subpoenas, witness fees, and appearances of Board Members,
officers, or employees.
(a) Subpoenas. Subpoenas requiring the attendance of witnesses or the
production of documentary or tangible evidence for the purpose of taking
depositions or at a hearing may be issued by the chief law judge prior to the
assignment of a law judge, or by the law judge to whom the case is assigned,
upon application by any party. The application shall show the general
relevance and reasonable scope of the evidence sought. Any person upon whom a
subpoena is served may, within 7 days after service but in any event prior to
the return date thereof, file with the chief law judge or the law judge, as
the case may be, a motion to quash or modify the subpoena, and such filing
shall stay the subpoena pending final action by the chief law judge or the
law judge on the motion.
(b) Witness fees. Witnesses shall be entitled to the same fees and mileage
as are paid to witnesses in the courts of the United States. The fees shall
be paid by the party at whose instance the witness is subpoenaed or appears.
(c) Board Members, officers, or employees. The provisions of paragraph (a)
of this section are not applicable to Board Members, officers, or employees,
or to the production of documents in their custody. Applications for the
attendance of such persons or the production of such documents at a hearing
or deposition shall be addressed to the chief law judge or the law judge, as
the case may be, in writing, and shall set forth the need of the moving party
for such evidence and its relevancy to the issues in the proceeding.
Sec. 821.21 Official notice.
Where the law judge or the Board intends to take official notice of a
material fact not appearing in the evidence in the record, notice shall be
given to all parties, who may within 10 days file a petition challenging such
fact. Upon the filing of such petition, the party or parties shall be given
reasonable opportunity to controvert the fact.
Subpart C--Special Rules Applicable to Proceedings Under Section 602(b) of
the Act
Sec. 821.24 Initiation of proceedings.
(a) Petition for review. Where the Administrator has denied an application
for the issuance or renewal of an airman certificate, the applicant may file
with the Board a petition for review of the Administrator's action. Such
petition shall be filed within 60 days from the time of service on the
petitioner of the Administrator's action. The petition shall contain a short,
plain statement of the facts on which petitioner's case rests and a statement
of the action requested. The petition may be filed in the form of a letter to
the Board signed by the aggrieved party.
(b) Filing petition with the Board. The petition for review shall be filed
with the Board and the date of filing shall be determined in the same manner
as prescribed by Sec. 821.7(a) for other documents.
(c) Answer to petition. The Administrator shall file an answer to the
petition for review within 20 days of service upon him by the petitioner of
the petition for review. Failure to deny the truth of any allegation or
allegations of the petition may be deemed an admission of the truth of the
allegation or allegations not answered.
(d) Stay of proceeding pending petition for exemption. Where the petitioner
has filed with the Administrator a petition for exemption under the
provisions of the Federal Aviation Regulations, he may request that the Board
hold his petition in abeyance pending final action on his petition for
exemption, or for 180 days from the date of issuance of the Administrator's
denial, whichever occurs first. In the event that a petitioner fails to
request a hearing during the 180-day period extending from the date of
issuance of the Administrator's denial, he is returned to the status of an
applicant for airman medical certification and must follow the procedures set
forth in 14 CFR Part 67. Pending a stay of proceedings, further pleadings are
stayed.
(e) New evidence. In the event that a petitioner has undergone medical
testing or medical evaluation, in addition to the testing and evaluation that
has already been submitted to the Administrator, and wishes to introduce the
results of that further medical testing or medical evaluation into the
record, petitioner may do so provided that the new medical evidence is served
upon the Administrator at least 30 days prior to the date of hearing.
[40 FR 30243, July 17, 1975, as amended at 43 FR 60473, Dec. 28, 1978; 49 FR
28250, July 11, 1984]
Sec. 821.25 Burden of proof.
In proceedings under section 602(b) of the Act, the burden of proof shall
be upon the petitioner.
Sec. 821.26 Motion to dismiss petition for review for lack of standing.
Upon motion by the Administrator within the time limitation for filing an
answer, a petition for review shall be dismissed for lack of standing in
either of the following instances:
(a) If the petitioner's certificate at the time of the denial or renewal
thereof was under an order of suspension; or
(b) If the petitioner's certificate had been revoked within one year of the
date of the denial or renewal thereof, unless the order revoking such
certificate provided otherwise.
Subpart D--Special Rules Applicable to Proceedings Under Section 609 of the
Act
Sec. 821.30 Initiation of proceedings.
(a) Appeal. A certificate holder may file with the Board an appeal from any
order of the Administrator amending, modifying, suspending or revoking a
certificate. A flight engineer, mechanic, pilot, or repairman may file with
the Board an appeal from any order of the Administrator imposing a civil
penalty. Such appeals shall be filed with the Board within 20 days from the
time of service of the order, along with proof of service on the
Administrator.
(b) Contents. Each appeal shall contain a concise but complete statement of
the facts relied on and the relief sought. It shall identify the
Administrator's order and any certificate affected and shall recite the
Administrator's action from which the appeal is sought. It shall also contain
proof of service on the Administrator.
(c) Effect of timely appeal with the Board. Timely filing with the Board of
an appeal from an order of the Administrator shall postpone the effective
date of the order until final disposition of the appeal by the law judge or
the Board, except in emergency proceedings.
SUMMARY: The NTSB is adopting interim rules to implement the FAA Civil
Penalty Administrative Assessment Act of 1992, signed into law on August 26,
1992. This law transfers adjudication of appeals of civil penalties assessed
by the Federal Aviation Administrator against pilots, flight engineers,
mechanics, and repairmen from the FAA to the NTSB. In light of the immediate
effectiveness of the law, the NTSB is adopting interim rules without notice
and comment. Comments are invited and will be considered in the formulation
of final rules.
DATES: The interim rules are effective on February 25, 1993.
(a) Filing, time of filing, and service upon respondent. The order of the
Administrator from which an appeal has been taken shall serve as the
complaint. The complaint shall be filed by the Administrator with the Board
within 5 days after the notice of appeal has been filed upon the
Administrator. The complaint shall be accompanied by the Administrator's
proof of service upon respondent.
(b) Contents of complaint. If the Administrator claims that respondent
lacks qualification as an airman, the order filed as the complaint, or an
accompanying statement shall recite on which of the facts pleaded this
contention is based.
(c) Answer to complaint. The respondent shall file an answer to the
complaint within 20 days of service of the complaint upon him by the
Administrator. Failure to deny the truth of any allegation or allegations in
the complaint may be deemed an admission of the truth of the allegation or
allegations not answered. Respondent's answer shall also include any
affirmative defense that respondent intends to raise at the hearing. A
respondent may amend his answer to include any affirmative defense in
accordance with the requirements of Sec. 821.12(a). In the discretion of the
law judge, any affirmative defense not so pleaded may be deemed waived.
[40 FR 30243, July 17, 1975, as amended at 49 FR 28250, July 11, 1984]
Sec. 821.32 Burden of proof.
In proceedings under section 609 of the Act, the burden of proof shall be
upon the Administrator.
Sec. 821.33 Motion to dismiss stale complaint.
Where the complaint states allegations of offenses which occurred more than
6 months prior to the Administrator's advising respondent as to reasons for
proposed action under section 609 of the Act, respondent may move to dismiss
such allegations pursuant to the following provisions:
(a) In those cases where a complaint does not allege lack of qualification
of the certificate holder:
(1) The Administrator shall be required to show by answer filed within 15
days of service of the motion that good cause existed for the delay, or that
the imposition of a sanction is warranted in the public interest,
notwithstanding the delay or the reasons therefor.
(2) If the Administrator does not establish good cause for the delay or for
imposition of a sanction notwithstanding the delay, the law judge shall
dismiss the stale allegations and proceed to adjudicate only the remaining
portion, if any, of the complaint.
(3) If the law judge wishes some clarification as to the Administrator's
factual assertions of good cause, he shall obtain this from the Administrator
in writing, with due service made upon the respondent, and proceed to an
informal determination of the good cause issue without a hearing. A hearing
to develop facts as to good cause shall be held only where the respondent
raises an issue of fact in respect of the Administrator's good cause issue
allegations.
(b) In those cases where the complaint alleges lack of qualification of the
certificate holder:
(1) The law judge shall first determine whether an issue of lack of
qualification would be presented if any or all of the allegations, stale and
timely, are assumed to be true. If not, the law judge shall proceed as in
paragraph (a) of this section.
(2) If the law judge deems that an issue of lack of qualification would be
presented by any or all of the allegations, if true, he shall proceed to a
hearing on the lack of qualification issue only, and he shall so inform the
parties. The respondent shall be put on notice that he is to defend against
lack of qualification and not merely against a proposed remedial sanction.
[40 FR 30243, July 17, 1975, as amended at 54 FR 12203, Mar. 24, 1989]
Subpart E--Law Judges
Sec. 821.35 Assignment, duties, and powers.
(a) Assignment of law judge and duration of assignment. The chief law judge
shall assign a law judge to preside over the proceeding. Until such
assignment, motions, requests, and documents shall be addressed to the chief
law judge. Thereafter, all such motions, requests, and documents shall be
addressed to the law judge assigned. The authority of the law judge shall
terminate upon certification of the record to the Board, or upon expiration
of the period within which appeals from initial decisions may be filed, or
upon the law judge's withdrawal from the proceeding upon considering himself
disqualified.
(b) Powers of law judges. Law judges shall have the following powers:
(1) To give notice of and to hold prehearing conferences and hearings and
to consolidate proceedings which involve a common question of law or fact;
(2) To administer oaths and affirmations;
(3) To examine witnesses;
(4) To issue subpoenas and to take or cause depositions to be taken;
(5) To receive evidence and rule upon objections and offers of proof;
(6) To rule upon motions in assigned cases;
(7) To regulate the conduct of the hearing;
(8) To hold conferences, before or during the hearing for the settlement or
simplification of issues;
(9) To dispose of procedural requests or similar matters; and
(10) To make initial decisions, and, if so directed by the Board, to
certify records with or without recommended decisions.
(c) Disqualification of a law judge. A law judge shall withdraw from the
proceedings if at any time he deems himself disqualified. If, prior to the
initial decision, there is filed an affidavit of personal bias or
disqualifications, with substantiating facts, and the law judge does not
withdraw, the Board will determine the matter as a part of the record and
decision in the proceeding, if an appeal from the law judge's initial
decision is filed. The Board will not otherwise consider any claim of bias or
disqualification as to the law judge's assignment to conduct the hearing. The
Board, in its discretion, may order a hearing on a charge of bias or
disqualification.
Subpart F--Hearings
Sec. 821.37 Notice of hearing.
(a) Notice. The chief law judge or the law judge to whom the case is
assigned shall set the date, time, and place for the hearing at a reasonable
date, time and place, and shall give the parties adequate notice at least 30
days in advance thereof, and of the nature of the hearing. In the event that
the parties stipulate to an earlier hearing date, and the law judge to whom
the case is assigned agrees, to a date less than 30 days in advance of the
date upon which notice of hearing is given, a hearing date less than 30 days
after the date of notice may be set by the law judge. Due regard shall be
given to the convenience of the parties with respect to the place of the
hearing. The location of the majority of the witnesses and the suitability of
a site served by a scheduled air carrier are factors to be considered in
setting the place for the hearing. Due regard shall be given to any need for
discovery in setting the hearing date.
(b) Hearings in several sessions. Where appropriate, the law judge may
determine that a hearing will be held in one or more sessions at the same or
different places.
[40 FR 30243, July 17, 1975, as amended at 49 FR 28250, July 11, 1984]
Sec. 821.38 Evidence.
Every party shall have the right to present his case or defense by oral or
documentary evidence, to submit evidence in rebuttal, and to conduct such
cross-examination as may be required for a full and true disclosure of the
facts.
Sec. 821.39 Argument and submissions.
At the hearing, the law judge shall give the parties adequate opportunity
for the presentation of arguments in support of, or in opposition to,
motions, objections, and rulings. Prior to the initial decision, the parties
shall be afforded a reasonable opportunity to submit for consideration
proposed findings and conclusions and supporting reasons therefor.
Sec. 821.40 Record.
The transcript of testimony and exhibits, together with all papers,
requests, and rulings filed in the proceeding shall constitute the exclusive
record of the proceeding. The record shall also include any proceeding upon
an affidavit of personal bias or disqualification of a law judge. Copies of
the transcript may be obtained by any party upon payment of the reasonable
cost thereof. A copy may be examined at the National Transportation Safety
Board Public Reference Room No. 806D, at 800 Independence Avenue, SW.,
Washington, DC 20594.
Sec. 821.41 Certification to the Board.
At any time prior to the close of the hearing, the Board may direct the law
judge to certify any question or the entire record in the proceeding to the
Board for decision, except an interlocutory ruling. In cases where the record
is certified to the Board, the law judge shall not render an initial decision
but shall only recommend to the Board a decision as provided in 5 U.S.C. 557
(Administrative Procedure).
Subpart G--Initial Decision
Sec. 821.42 Initial decision by law judge.
(a) Written or oral decision. The law judge may render his initial decision
orally at the close of the hearing, or he may render such decision in writing
at a later date, except as provided in Sec. 821.56(b).
(b) Contents. The initial decision shall include a statement of findings
and conclusions, and the grounds therefor, upon all material issues of fact,
credibility of witnesses, law, or discretion presented on the record, the
appropriate order, and the reasons therefor.
(c) Service of written decision and extension of time for appeal. If the
initial decision is in writing, it shall be served upon the parties. At any
time before the date for filing an appeal from the initial decision has
passed, the law judge or the Board may, for good cause shown, extend the time
within which to file an appeal from the initial decision, and the law judge
may also reopen the case for good cause upon notice to the parties.
(d) Furnishing copy of oral decision and issuance date. If the initial
decision is rendered orally, a copy thereof, excerpted from the transcript of
the record, shall be furnished the parties by the Office of Administrative
Law Judges. Irrespective of the date of mailing of such copy, the issuance
date of the decision shall be the actual date of the rendering of the oral
decision.
Sec. 821.43 Effect of law judge's initial decision, and filing an appeal
therefrom.
If an appeal from the initial decision is not timely filed with the Board
by either party, or the Board on its own initiative does not decide within 20
days after the issuance of the initial decision to review it, the initial
decision shall become final. However, the initial decision shall not be
deemed to be a precedent binding on the Board. The timely review by the Board
or the filing of such an appeal or motion shall stay the order in the initial
decision.
Subpart H--Appeals from Initial Decisions
Sec. 821.47 Notice of appeal.
A party may appeal from a law judge's order or from the initial decision by
filing with the Board and serving upon the other parties (pursuant to Sec.
821.8) a notice of appeal within 10 days after an oral initial decision has
been rendered or a written decision or an order has been served.
Sec. 821.48 Briefs and oral argument.
(a) Appeal briefs. Each appeal must be perfected within 50 days after an
oral initial decision has been rendered, or 30 days after service of a
written initial decision, by filing with the Board and serving on the other
party a brief in support of the appeal. Appeals may be dismissed by the Board
on its own initiative or on motion of the other party, in cases where a party
who has filed a notice of appeal fails to perfect his appeal by filing a
timely brief.
(b) Contents of appeal brief. Each appeal brief shall set forth in detail
the objections to the initial decision, and shall state whether such
objections are related to alleged errors in the law judge's findings of fact
and conclusions or alleged errors in his order. It shall also state the
reasons for such objections and the relief requested.
(c) Waiver of objections on appeal. Any error contained in the initial
decision which is not objected to may be deemed to have been waived. Where
any objection is based upon evidence of record, such objection need not be
considered by the Board unless specific record citations to the pertinent
evidence are furnished in the appeal brief.
(d) Reply brief. A brief in reply to the appeal brief may be filed by the
other party within 30 days after the appeal brief has been served upon him. A
copy of the reply brief shall be served upon the party who has appealed from
the initial decision. Where the reply brief relies upon evidence of record,
specific record citations to the pertinent evidence shall be furnished in the
reply brief.
(e) Other briefs. No further briefs may be filed, except upon specific
leave of the Board upon a showing of good cause therefor.
(f) Number of copies. Five copies of briefs shall be filed with the Board.
(g) Oral argument. Oral argument before the Board will normally not be held
in proceedings under this part. However, when need therefor appears, the
Board may permit oral argument, either on its own initiative or on motion of
a party.
[40 FR 30248, July 17, 1975, as amended at 49 FR 28250, July 11, 1984]
Sec. 821.49 Issues on appeal.
On appeal, the Board will consider only the following issues:
(a) Are the findings of fact each supported by a preponderance of reliable,
probative, and substantial evidence?
(b) Are conclusions made in accordance with precedent and policy?
(c) Are the questions on appeal substantial?
(d) Have any prejudicial errors occurred?
If the Board determines that the law judge erred in any respect or that his
order in his initial decision should be changed, the Board may make any
necessary findings and may issue an order in lieu of the law judge's order,
or may remand the case for such purposes as the Board may deem necessary. The
Board on its own initiative may raise any issue, the resolution of which it
deems important to a proper disposition of the proceedings, in which event a
reasonable opportunity shall be afforded to the parties to submit argument
thereon.
Sec. 821.50 Petitions for rehearing, reargument, reconsideration, or
modification of an order of the Board.
(a) General. Any party to a proceeding may petition for rehearing,
reargument, reconsideration, or modification of a Board order on appeal from
an initial decision. Initial decisions which have become final because they
were not appealed from shall not be deemed orders for this purpose.
(b) Form and number of copies. The petition shall be in writing. Five
copies shall be filed with the Board and a copy shall be served upon each of
the parties within 30 days after service of the Board's order on appeal from
the initial decision.
(c) Contents. The petition shall state briefly and specifically the matters
of record alleged to have been erroneously decided, the ground or grounds
relied upon, and the relief sought. If the petition is based, in whole or in
part, on allegations as to the consequences that would result from the order
of the Board, the basis of such allegations shall be set forth. If the
petition is based, in whole or in part, upon new matter, it shall set forth
such new matter and shall contain affidavits of prospective witnesses,
authenticated documents, or both, or an explanation why such substantiation
is unavailable, and shall explain why such new matter could not have been
discovered by the exercise of due diligence prior to the date of the hearing.
(d) Grounds for dismissal. Repetitious petitions will not be entertained by
the Board and will be summarily dismissed.
(e) Reply to petition. Within 15 days after the service of the petition
upon an adverse party, he may reply thereto by filing a copy of the reply
with the Board, with proof of service upon the petitioner.
(f) Stay of effective date of order. The filing of a petition under this
section shall operate to stay the effective date of the Board order, unless
otherwise ordered by the Board.
[40 FR 30243, July 17, 1975, as amended at 54 FR 12203, Mar. 24, 1989]
Subpart I--Rules Applicable to Emergency Proceedings
Sec. 821.54 General.
(a) Applicability. These rules shall apply to any order issued by the
Administrator as an emergency order, or any order issued by the Administrator
not designated as an emergency order, which is later amended to be an
emergency order, as provided in section 609 of the Act, in cases where the
respondent appeals or has appealed to the Board therefrom.
(b) Effective date of emergency. The procedure set forth herein shall apply
as of the date when the Administrator's written advice of the emergency
character of his order has been received by the Office of Administrative Law
Judges or by the Board.
(c) Computation of time. Time shall be computed in accordance with Sec.
821.10, including the provision that Saturdays, Sundays, and legal holidays
of the Board shall always be counted in the computation.
Sec. 821.55 Appeal, complaint, answer to the complaint, and motions.
(a) Time within which to appeal. Within 10 days after the service of the
Administrator's emergency order on the certificate holder, he may file an
appeal therefrom to the Board.
(b) Form and content of appeal. The appeal may be in the form of a letter
to the Board signed by the aggrieved party. It shall identify the
Administrator's order and the certificate affected, shall recite the
Administrator's action from which the appeal is taken, and shall identify the
issues of fact or law on which the appeal is based and the relief sought.
(c) Complaint. Within 3 days after receipt of the appeal by the Board, the
Administrator shall file with the Board his emergency order as his complaint
and serve a copy upon the respondent.
(d) Answer to the complaint. Within 5 days after service of the complaint
upon respondent, he shall file his answer thereto. Failure to deny any
allegation or allegations of the complaint may be deemed an admission of the
allegation or allegations not answered.
(e) 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.
Sec. 821.56 Hearing and initial decision.
(a) Notice of hearing. Immediately upon notification by the Administrator
to the Board that an emergency exists, the date and place for hearing shall
be set upon notice to the parties. The hearing shall be set for a date no
later than 7 days after the issuance of the notice of hearing.
(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. Within 5 days after the filing of the notice
of appeal, the appellant shall file a brief with the Board and serve a copy
upon the other parties. Within 10 days after service of the appeal brief, a
reply brief may be filed with the Board in which case a copy shall be served
upon the other parties. The briefs shall comply with the requirements of Sec.
821.48 (b), (c), (d), (e), (f), and (g), covering contents, waiver of
objections on appeal, reply brief, other briefs, number of copies, and oral
argument. Appeals may be dismissed by the Board on its own initiative or on
motion of the other party, in cases where a party who has filed a notice of
appeal fails to perfect his appeal by filing a timely brief. When a request
for oral argument is granted, the Board will give 3 days' notice of such oral
argument.
(c) Issues on appeal. The provisions of Sec. 821.49 shall apply to issues
on appeal. However, the Board may on its own initiative raise any issue, the
resolution of which it deems important to a proper disposition of the
proceeding. In such case, not more than 2 days shall be afforded to the
parties to submit argument thereon.
(d) Petitions for reconsideration, rehearing, reargument, or modification
of order. The only petitions for reconsideration, rehearing, reargument, 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.
[40 FR 30243, July 17, 1975, as amended at 49 FR 28250, July 11, 1984]
Subpart J--Ex Parte Communications
Authority: Sec. 4, Government in the Sunshine Act, Pub. L. 94-409, amending
5 U.S.C. 556(d) and 5 U.S.C. 557; Title VI, Federal Aviation Act of 1958, as
amended, 49 U.S.C. 1421 et seq.; Independent Safety Board Act of 1974, Pub.
L. 93-633, 88 Stat. 2166 (49 U.S.C. 1901 et seq.).
As used in this subpart:
"Board decisional employee" means a Board Member, administrative law judge,
or other employee who is or who may reasonably be expected to be involved in
the decisional process of the proceeding;
"Ex parte communication" means an oral or written communication not on the
public record with respect to which reasonable prior notice to all parties is
not given, but it shall not include requests for status reports on any matter
or proceeding covered by this part.
Sec. 821.61 Prohibited ex parte communications.
(a) The prohibitions of this section shall apply from the time a proceeding
is noticed for hearing unless the person responsible for the communication
has knowledge that it will be noticed, in which case the prohibitions shall
apply at the time of the acquisition of such knowledge.
(b) Except to the extent required for the disposition of ex parte matters
as authorized by law:
(1) No interested person outside the Board shall make or knowingly cause to
be made to any Board employee an ex parte communication relevant to the
merits of the proceeding;
(2) No Board employee shall make or knowingly cause to be made to any
interested person outside the Board an ex parte communication relevant to the
merits of the proceeding.
Ex parte communications regarding solely matters of board procedure or
practice are not prohibited by this section.
Sec. 821.62 Procedures for handling ex parte communication.
A Board employee who receives or who makes or knowingly causes to be made a
communication prohibited by Sec. 821.61 shall place on the public record of
the proceeding:
(a) All such written communications;
(b) Memoranda stating the substance of all such oral communications; and
(c) All written responses, and memoranda stating the substance of all oral
responses, to the materials described in paragraphs (a) and (b) of this
section.
Sec. 821.63 Requirement to show cause and imposition of sanction.
(a) Upon receipt of a communication knowingly made or knowingly caused to
be made by a party in violation of Sec. 821.61, the Board, administrative law
judge, or other employee presiding at the hearing may, to the extent
consistent with the interests of justice and the policy of the underlying
statutes, require the party to show cause why his or her claim or interest in
the proceeding should not be dismissed, denied, disregarded, or otherwise
adversely affected on account of such violation.
(b) The Board may, to the extent consistent with the interests of justice
and the policy of the underlying statutes administered by the Board, consider
a violation of this subpart sufficient grounds for a decision adverse to a
party who has knowingly committed such violation or knowingly caused such
violation to occur.
Subpart K--Judicial Review of Board Orders
Sec. 821.64 Judicial review.
Judicial review of a final order of the Board may be sought as provided in
section 1006 of the Act (49 U.S.C. App. 1486) and section 304(d) of the
Independent Safety Board Act of 1974 (49 U.S.C. 1903(d)) by the filing of a
petition for review within 60 days of the date the Board Order is served,
subject to the restrictions contained in section 609(a) of the Act, and new
Sec. 901(a)(3)(D)(v) enacted in the FAA Civil Penalty Administrative
Assessment Act of 1992.
SUMMARY: The NTSB is adopting interim rules to implement the FAA Civil
Penalty Administrative Assessment Act of 1992, signed into law on August 26,
1992. This law transfers adjudication of appeals of civil penalties assessed
by the Federal Aviation Administrator against pilots, flight engineers,
mechanics, and repairmen from the FAA to the NTSB. In light of the immediate
effectiveness of the law, the NTSB is adopting interim rules without notice
and comment. Comments are invited and will be considered in the formulation
of final rules.
DATES: The interim rules are effective on February 25, 1993.
