49 CFR Part 821 — Rules of Practice in Air Safety Proceedings

PART 821—RULES OF PRACTICE IN AIR SAFETY PROCEEDINGS Authority: 49 U.S.C. 1101-1155, 44701-44723, 46301, Pub. L. 112-153, unless otherwise noted. Source: 68 FR 22625, Apr. 29, 2003, unless otherwise noted. Subpart A—General Provisions § 821.1 Definitions. (a) As used in this part: Administrator Airman certificate Appeal from an initial decision Appeal to the Board Appealable order Appealable order Board Case Manager Certificate Chief Law Judge Complaint Emergency order Flight engineer Initial decision Law judge Mechanic Order Petition for review Petitioner Pilot Repairman Respondent (b) Terms defined in 49 U.S.C. Chapters 11, 447 and 463 are used as so defined. § 821.2 Applicability and description of part. The provisions of this part govern all air safety proceedings, including proceedings before a law judge on petition for review of the denial of any airman certificate (including a medical certificate), or on appeal from any order of the Administrator amending, modifying, suspending or revoking a certificate. The provisions of this part also govern all proceedings on appeal from an order of the Administrator imposing a civil penalty on a flight engineer, mechanic, pilot or repairman, or a person acting in such capacity. All proceedings on appeal to the Board from any initial decision or order of a law judge are also governed by this part. § 821.3 Description of docket numbering system. In addition to sequential numbering of cases as received, each case formally handled by the Board will receive a letter prefix. These letter prefixes reflect the case type: “SE” for safety enforcement (certificate suspension/revocation) cases; “SM” (safety medical) for cases involving denials of medical certification; “CD” for cases involving non-medical certificate denials; “SR” for cases involving safety registration issues under 49 U.S.C. 44101 et seq.; Subpart B—General Rules Applicable to Petitions for Review, Appeals to the Board, and Appeals From Law Judges Initial Decisions and Appealable Orders § 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. [78 FR 57534, Sept. 19, 2013] § 821.6 Appearances and rights of witnesses. (a) Any party to a proceeding may appear and be heard in person, or by an attorney or other representative designated by that party. Upon hearing, and for good cause shown, the Board may suspend or bar any person from practicing before it. (b) Any person appearing in any proceeding governed by this part may be accompanied, represented and advised, and may be examined by, his or her own counsel or representative. (c) Any person who submits data or evidence in a proceeding governed by this part may, by timely request, procure a copy of any document submitted by him or her, or a copy of any transcript made of his or her testimony, on payment of reasonable costs. Original documents, data or evidence may be retained by a party upon permission of the law judge or the Board, upon substitution of a copy thereof. (d) Any party to a proceeding who is represented by an attorney or representative shall, in a separate written document, notify the Board of the name, address and telephone number of that attorney or representative. In the event of a change in representation or a withdrawal of representation, the party shall immediately, in a separate written document, notify the Board (in the manner provided in § 821.7) and the other parties to the proceeding (pursuant to § 821.8), before the new attorney or representative may participate in the proceeding in any way. Parties, and their attorneys and representatives, must notify the Board immediately of any changes in their contact information. [68 FR 22625, Apr. 29, 2003, as amended at 77 FR 63251, Oct. 16, 2012] § 821.7 Filing of documents with the Board. (a) Filing address, method and date of filing. (2) Subsequent to the filing of a notice of appeal with the Office of Administrative Law Judges from a law judge's initial decision or appealable order, the issuance of a decision permitting an interlocutory appeal, or the expiration of the period within which an appeal from the law judge's initial decision or appealable order may be filed, all documents are to be filed with the Office of General Counsel, National Transportation Safety Board, 490 L'Enfant Plaza East SW., Washington, DC 20594. Paragraph (a)(3) of this section provides the acceptable methods for filing documents under this provision. (3) Documents shall be filed: By personal delivery, by U.S. Postal Service first-class mail, by overnight delivery service, by facsimile or by electronic mail as specified on the “Administrative Law Judges” Web page on the NTSB's public Web site. Documents filed by electronic mail must be signed and transmitted as specified on the “Administrative Law Judges” Web page on the NTSB's public Web site. (4) Documents shall be deemed filed on the date of personal delivery; on the send date shown on the facsimile or the item of electronic mail; and, for mail delivery service, on the mailing date shown on the certificate of service, on the date shown on the postmark if there is no certificate of service, or on the mailing date shown by other evidence if there is no certificate of service and no postmark. Where the document bears a postmark that cannot reasonably be reconciled with the mailing date shown on the certificate of service, the document will be deemed filed on the date of the postmark. (b) Number of copies. (c) Form. (2) Documents filed with the Board consisting of more than one page may be affixed only in the upper left-hand corner by staple or clip, and shall not be bound or hole-punched. Any document failing to comply with this requirement is subject to being returned to the filing party. (d) Content. (e) Subscription. (f) Designation of person to receive service. (g) To whom directed. [68 FR 22625, Apr. 29, 2003, as amended at 77 FR 63251, Oct. 16, 2012] § 821.8 Service of documents. (a) Who must be served. i.e., I hereby certify that I have this day served the foregoing [specify document] on the following party's counsel or designated representatives [or party, if without counsel or representative], at the address indicated, by [specify the method of service (e.g., first-class mail, electronic mail, personal service, etc.)] [List names and addresses of all persons served] Dated at ______this____ day of__________ 20__ (Signature)__________ For (on behalf of)__________ (2) Service shall be made on the person designated in accordance with § 821.7(f) to receive service. If no such person has been designated, service shall be made directly on the party. (b) Method of Service. (2) Notices of hearing, written initial decisions, law judges' appealable orders and Board orders on appeal shall be served by the Board on parties other than the Administrator by certified mail. Such documents may be served on the Administrator by first-class mail or facsimile. The Board may serve all other documents on the parties by first-class mail or facsimile. (c) Where service shall be made. (d) Presumption of service. (1) When receipt has been acknowledged by a person who customarily or in the ordinary course of business receives mail at the residence or principal place of business of the party or of the person designated under § 821.7(f); (2) When a properly addressed envelope, sent to the most current address in the official record, by regular, registered or certified mail, has been returned as unclaimed or refused; or (3) When a document is transmitted by facsimile or electronic mail and there is evidence to confirm its successful transmission to the intended recipient. (e) Date of service. [68 FR 22625, Apr. 29, 2003, as amended at 77 FR 63252, Oct. 16, 2012] § 821.9 Intervention and amicus appearance. (a) Intervention. (b) Amicus curiae briefs. § 821.10 Computation of time. In computing any period of time prescribed or allowed by this part, by notice or order of a law judge or the Board, or by any applicable statute, the date of the act, event or default after which the designated period of time begins to run is not to be included in the computation. The last day of the period so computed is to be included unless it is a Saturday, Sunday or legal holiday for the Board, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday. In all cases, Saturdays, Sundays and legal holidays for the Board shall be included in the computation of time, except they shall not be included in computations of time respecting petitions for review of determinations as to the existence of emergencies under § 821.54. § 821.11 Extensions of time. (a) On written request filed with the Board and served on all other parties, or oral request with any extension granted confirmed in writing and served on all other parties by the requestor, and for good cause shown, the law judge or the Board may grant an extension of time to file any document; however, no extension of time will be granted for the filing of a document to which a statutory time limit applies. (b) Extensions of time to file petitions for reconsideration shall not be granted upon a showing of good cause, but only in extraordinary circumstances. (c) The General Counsel is authorized to grant unopposed extensions of time on timely oral request without a showing of good cause in cases on appeal to the Board from a law judge's initial decision or appealable order. Written confirmation of such a grant of extension of time must promptly be sent by the requesting party to the Board and served on all other parties to the proceeding. § 821.12 Amendment and withdrawal of pleadings. (a) Amendment. (b) Withdrawal. [68 FR 22625, Apr. 29, 2003, as amended at 77 FR 63252, Oct. 16, 2012] § 821.13 Waivers. Waivers of any rights provided by statute or regulation shall either be in writing or by stipulation made at the hearing and entered into the record, and shall set forth the precise terms and conditions of the waiver. § 821.14 Motions. (a) General. (b) Form and content. (c) Replies to motions. (d) Oral argument; briefs. (e) Effect of pendency of motions. § 821.15 Motion to disqualify a Board Member. A motion requesting that a Board Member disqualify himself or herself from participating in a proceeding under this part shall be filed in writing with the Board. § 821.16 Interlocutory appeals from law judges' rulings on motions. Rulings of law judges on motions which are not dispositive of the proceeding as a whole may not be appealed to the Board prior to its consideration of the entire proceeding, except in extraordinary circumstances and with the consent of the law judge who made the ruling. Interlocutory appeals shall be disallowed unless the law judge finds, either orally on the record or in writing, that to allow such an appeal is necessary to prevent substantial detriment to the public interest or undue prejudice to a party. If an interlocutory appeal is allowed, any party may file a brief with the Board within such time as the law judge directs. No oral argument will be heard unless the Board directs otherwise. § 821.17 Motions to dismiss, for judgment on the pleadings and for summary judgment. (a) Motions to dismiss petition for review or complaint. (b) Motions to dismiss for lack of jurisdiction. (c) Motions for judgment on the pleadings. (d) Motions for summary judgment. (e) Appeals of dismissal, judgment on the pleadings and summary judgment orders. § 821.18 Motion for a more definite statement. (a) A party may, in lieu of an answer, file a motion requesting that the petitioner's statement of reasons and supporting facts in a petition for review or the Administrator's allegations of fact in a complaint be made more definite and certain. The motion shall cite the defects complained of and the details sought. If the motion is granted and the law judge's order is not complied with within 15 days after service thereof, the law judge shall strike the portion or portions of the petition for review or complaint to which the motion is directed. If the motion is denied, the moving party shall file an answer within 10 days after service of the law judge's order on the motion. (b) A party may file a motion to clarify an answer in the event that the answer fails to respond clearly to the petition for review or the complaint. § 821.19 Depositions and other discovery. (a) Depositions. (b) Exchange of information by the parties. (c) Failure to provide or preserve evidence. (d) Failure to provide copy of releasable portion of Enforcement Investigative Report (EIR). (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. [77 FR 63245, Oct. 16, 2012, as amended at 78 FR 57534, Sept. 19, 2013; 79 FR 41650, July 17, 2014] § 821.20 Subpoenas, witness fees, and appearances of Board Members, officers and employees. (a) Subpoenas. (b) Witness fees. (c) Board Members, officers and employees. § 821.21 Official notice. Where a law judge or the Board intends to take official notice of a material fact not appearing in the evidence in the record, notice shall be given to all parties, who may within 10 days file a petition disputing that fact. Subpart C—Special Rules Applicable to Proceedings Under 49 U.S.C. 44703 § 821.24 Initiation of proceeding. (a) Petition for review. (b) Form and content of petition. (c) Answer to petition. (d) Stay of proceeding pending request for special issuance (restricted) medical certificate. (e) New evidence. § 821.25 Burden of proof. In proceedings under 49 U.S.C. 44703, the burden of proof shall be upon the petitioner. § 821.26 Motion to dismiss petition for review for lack of standing. Upon motion by the Administrator within the time limit for filing an answer, a petition for review shall be dismissed for lack of standing in either of the following instances: (a) If the petition seeks the issuance of the same type of certificate that was under an order of suspension on the date of the denial; or (b) If the petition seeks the issuance of the same type of certificate that had been revoked within one year of the date of the denial, unless the order revoking such certificate provides otherwise. Subpart D—Special Rules Applicable to Proceedings Under 49 U.S.C. 44709 § 821.30 Initiation of proceeding. (a) Appeal. (b) Form and content of appeal. (c) Effect of filing timely appeal with the Board. § 821.31 Complaint procedure. (a) Filing, time of filing and service on respondent. (b) Answer to complaint. § 821.32 Burden of proof. In proceedings under 49 U.S.C. 44709, the burden of proof shall be upon the Administrator. § 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 the respondent as to reasons for proposed action under 49 U.S.C. 44709(c), the respondent may move to dismiss such allegations as stale pursuant to the following provisions: (a) In those cases where the complaint does not allege lack of qualification of the respondent: (1) The Administrator shall be required to show, by reply filed within 15 days after the date of service of the respondent's motion, that good cause existed for the delay in providing such advice, or that the imposition of a sanction is warranted in the public interest, notwithstanding the delay or the reasons therefor. (2) If the Administrator does not establish good cause for the delay, or for the imposition of a sanction in the public interest notwithstanding the delay, the law judge shall dismiss the stale allegations and proceed to adjudicate the remaining portion of the complaint, if any. (b) In those cases where the complaint alleges lack of qualification of the respondent, the law judge shall first determine whether an issue of lack of qualification would be presented if all of the allegations, stale and timely, are assumed to be true. If so, the law judge shall deny the respondent's motion. If not, the law judge shall proceed as in paragraph (a) of this section. Subpart E—Law Judges § 821.35 Assignment, duties and powers. (a) Assignment of law judge and duration of assignment. (b) Powers of law judge. (1) To give notice of, and to hold, prehearing conferences and hearings, and to consolidate proceedings which involve a common question of law or fact; (2) To hold conferences, before or during the hearing, for the settlement or simplification of issues; (3) To issue subpoenas, and to take depositions or cause depositions to be taken; (4) To dispose of procedural requests or similar matters; (5) To rule on motions; (6) To regulate the conduct of hearings; (7) To administer oaths and affirmations; (8) To examine witnesses; (9) To receive evidence and rule upon objections and offers of proof; and (10) To issue initial decisions and dispositional orders. (c) Disqualification. [68 FR 22625, Apr. 29, 2003, as amended at 77 FR 63252, Oct. 16, 2012] Subpart F—Hearing § 821.37 Notice of hearing. (a) Time and location of hearing. (b) Hearing in several sessions. § 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. [78 FR 57534, Sept. 19, 2013] § 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 proposed rulings. Prior to the issuance of the initial decision, the parties shall be afforded a reasonable opportunity to submit for consideration proposed findings and conclusions, and supporting reasons therefor. § 821.40 Record. The transcript of testimony and exhibits, together with all papers, requests and rulings filed in the proceeding before the law judge, shall constitute the exclusive record of the proceeding. Copies of the transcript may be obtained by any party upon payment of the reasonable cost thereof. A copy of the transcript may be examined at the National Transportation Safety Board, Office of Administrative Law Judges, Public Docket Section. Subpart G—Initial Decision § 821.42 Initial decision by law judge. (a) Written or oral decision. (b) Content. (c) Furnishing parties with, and issuance date of, oral decision. § 821.43 Effect of law judge's initial decision or appealable order and appeal therefrom. If no appeal from the law judge's initial decision or appealable order is timely filed, the initial decision or order shall become final with respect to the parties, but shall not be binding precedent for the Board. The filing of a timely notice of appeal with the Board shall stay the effectiveness of the law judge's initial decision or order, unless the basis for the decision or order is that the Board lacks jurisdiction. Subpart H—Appeal From Initial Decision § 821.47 Notice of appeal. (a) Time within which to file notice of appeal. (b) Request for reconsideration of law judge's initial decision or order. § 821.48 Briefs and oral argument. (a) Appeal brief. (b) Form and content of appeal brief. 1/2 (2) The appeal brief shall enumerate the appealing party's objections to the law judge's initial decision or appealable order, and shall state the reasons for such objections, including any legal precedent relied upon in support thereof. (3) Any error contained in the initial decision which is not objected to in the appeal brief may be deemed waived. (c) Reply brief. (d) Other filings. (e) Oral argument. § 821.49 Issues on appeal. (a) On appeal, the Board will consider only the following issues: (1) Are the findings of fact each supported by a preponderance of reliable, probative and substantial evidence? (2) Are conclusions made in accordance with law, precedent and policy? (3) Are the questions on appeal substantial? (4) Have any prejudicial errors occurred? (b) If the Board determines that the law judge erred in any respect, or that his or her initial decision or order should be changed, the Board may make any necessary findings and may issue an order in lieu of the law judge's initial decision or order, or may remand the proceeding for any such purpose as the Board may deem necessary. § 821.50 Petition for rehearing, reargument, reconsideration or modification of an order of the Board. (a) General. (b) Timing and service. (c) Content. (d) Repetitious petitions. (e) Reply to petition. (f) Stay of effective date of Board's order. [68 FR 22625, Apr. 29, 2003, as amended at 77 FR 63252, Oct. 16, 2012] Subpart I—Special Rules Applicable to Proceedings Involving Emergency and Other Immediately Effective Orders § 821.52 General. (a) Applicability. (b) Effective date of emergency. (c) Computation of time. (d) Waiver. (e) Acceptable methods of filing and service. All documents submitted by a party in a proceeding governed by this subpart must be filed with the Board by overnight delivery, facsimile or electronic mail, and simultaneously served on all other parties by the same means. If filing by electronic mail, parties must adhere to the requirements in § 821.7(a)(3). [68 FR 22625, Apr. 29, 2003, as amended at 77 FR 63252, Oct. 16, 2012] § 821.53 Appeal. (a) Time within which to file appeal. (b) Form and content of appeal. § 821.54 Petition for review of Administrator's determination of emergency. (a) Time within which to file petition. (b) Form, content and service of petition. (c) Reply to petition. (d) Hearing. (e) Disposition. (f) Effect of law judge's ruling. [68 FR 22625, Apr. 29, 2003, as amended at 77 FR 63252, Oct. 16, 2012; 79 FR 41650, July 17, 2014] § 821.55 Complaint, answer to complaint, motions and discovery. (a) Complaint. (b) Answer to complaint. (c) Motion to dismiss and motion for more definite statement. (d) Discovery. [68 FR 22625, Apr. 29, 2003, as amended at 77 FR 63253, Oct. 16, 2012] § 821.56 Hearing and initial decision or appealable order of law judge. (a) Notice of hearing. (b) Conduct of hearing. (c) Initial decision and effect of initial decision or appealable order. § 821.57 Procedure on appeal. (a) Time within which to file notice of appeal. (b) Briefs and oral argument. (c) Issues on appeal. (d) Petition for rehearing, reargument, reconsideration or modification of order. (1) Set forth the new matter; (2) Contain affidavits of prospective witnesses, authenticated documents, or both, or an explanation of why such substantiation is unavailable; and (3) Contain a statement explaining why such new matter could not have been discovered in the exercise of due diligence prior to the date on which the evidentiary record closed. [68 FR 22625, Apr. 29, 2003, as amended at 77 FR 63253, Oct. 16, 2012] Subpart J—Ex Parte Communications Authority: Sec. 4, Pub. L. 94-409, 5 U.S.C. 556(d) and 557; 49 U.S.C. 1101-1155, 44701-44723, 46301. § 821.60 Definitions. As used in this subpart: Board decisional employee Ex parte communication § 821.61 Prohibited ex parte communications. (a) The prohibitions of this section shall apply from the time a petition for review or an appeal is filed unless the person responsible for the communication has knowledge that a petition for review or an appeal will be filed, in which case the prohibitions shall apply at the time of the acquisition of such knowledge. Such prohibitions shall continue until the time of the Board's final disposition of the petition, appeal and any ancillary matters, such as the adjudication of a claim for fees and expenses under the Equal Access to Justice Act. (b) Except to the extent required for the disposition of ex parte matters as authorized by law: (1) No interested person outside the Board shall make or knowingly cause to be made to any Board decisional employee an ex parte communication relevant to the merits of the proceeding; (2) No Board decisional employee shall make or knowingly cause to be made to any interested person outside the Board an ex parte communication relevant to the merits of the proceeding. Ex parte communications solely relating to matters of Board procedure or practice are not prohibited by this section. § 821.62 Procedures for handling ex parte communications. A Board decisional employee who receives, makes or knowingly causes to be made a communication prohibited by § 821.61 shall place in the public record of the proceeding: (a) All such written communications; (b) Memoranda stating the substance of all such oral communications; and (c) All written responses, and memoranda stating the substance of all oral responses, to the communications described in paragraphs (a) and (b) of this section. § 821.63 Requirement to show cause and imposition of sanction. (a) Upon receipt of a communication made or knowingly caused to be made by a party in violation of § 821.61, the presiding law judge (or the chief law judge, if the proceeding has not been assigned to a law judge) or the Board may, to the extent consistent with the interests of justice and the policy of the underlying statutes it administers, require the party to show cause why its claim or interest in the proceeding should not be dismissed, denied, disregarded or otherwise adversely affected on account of such violation. (b) The Board may, to the extent consistent with the interest of justice and the policy of the underlying statutes it administers, consider a violation of § 821.61 sufficient grounds for a decision adverse to a party who has knowingly committed or knowingly caused such a violation to occur. Alternatively, the Board may impose a sanction on the party's attorney or representative, including suspending or barring the attorney or representative from practicing before it, where such action would be appropriate and penalizing the party represented would not be in the interest of justice. Subpart K—Judicial Review of Board Orders § 821.64 Judicial review. (a) General. i.e., (b) Stay pending judicial review. [68 FR 22625, Apr. 29, 2003, as amended at 77 FR 63245, Oct. 16, 2012; 77 FR 63253, Oct. 16, 2012; 78 FR 57534, Sept. 19, 2013]

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