Aviation Rules of Practice; General Revisions

SUMMARY: The NTSB is adopting numerous revisions to its rules of

practice governing air safety enforcement and related cases. These

revisions are intended to improve the efficiency and fairness of these

rules of practice.

EFFECTIVE DATE: The new rules are effective on January 17, 1995.

FOR FURTHER INFORMATION CONTACT: Jane F. Mackall, (202) 382-6540.

SUPPLEMENTARY INFORMATION: By notice (NPR) in the Federal Register

published October 20, 1993 (58 FR 54102), the NTSB proposed to revise

its rules, at 49 CFR Part 821, that govern practice and procedure in

aviation safety enforcement and related cases. The NPR identified a

number of rules that we believed should be revised, and we invited

users of our rules to recommend other rule changes they considered

necessary or desirable. We received six comments and two replies.1

What follows is a rule-by-rule discussion of the changes we are

adopting here.2

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\1\Comments were filed by the Aircraft Owners and Pilots

Association (AOPA), the Experimental Aircraft Association (EAA), the

Federal Aviation Administration (FAA), attorney Mark T. McDermott,

the National Transportation Safety Board Bar Association (NTSB Bar),

and North American Aviation Properties, Inc. (NAAP). Replies were

filed by the FAA and NAAP.

\2\Where the parties had no comments and we have no further

changes, the proposed rule is adopted without discussion. There are

also minor editorial changes that we have not discussed. Changes

proposed by the parties but not adopted here have been considered

nevertheless.

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1. Although we proposed no change to Sec. 821.1, which contains

definitions used in the rules of practice, the FAA proposes that we

expand the definition of ``initial decision'' to include orders on

motions that have the effect of terminating the proceeding, such as

motions for summary judgment. We will adopt that suggestion.

2. We proposed adding a new Sec. 821.3 in which the letter prefixes

of our docket-numbering system are explained. The NTSB Bar comments

that the current numbering system is self-explanatory, and sees no need

for the proposed addition. In contrast, NAAP thinks this change is

useful, especially for pro se participants in Board proceedings. We can

see only benefits, and adopt the proposal, as corrected by the

FAA.3 We have considered the FAA's other proposed additions, but

do not believe them necessary to this relatively simple rule, nor do we

see a need to include the FAA case number on our documents. We have,

however, updated the statutory citations to reflect the new

codification completed in Pub. L. 103-272.

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\3\The FAA notes that ``CD'' stands for certificate denial, not

certificates of denial.

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3. We proposed to revise Sec. 821.6(d) to require notices of

appearance from parties' representatives as well as their attorneys.

NAAP contends that pro se participants should be discouraged and

objects to provisions allowing the participation of non-attorney

representatives. We recognize disadvantages in pro se participation

and, in our information provided respondents on their filing of a

notice of appeal, we invite early retention of counsel. We will not,

however, go further, as we do not intend to place greater burdens on

respondents by requiring them to hire and pay counsel. Neither the

Board's enabling statute nor the Administrative Procedure Act, 5 U.S.C.

500 et seq., requires representation only by attorneys. NAAP's citation

to the FA Act, Sec. 1001, relating to the precursor Civil Aeronautics

Board, does not govern.

4. Our current rules contain many different copy requirements that

often are not followed by the parties. In subparagraph Sec. 821.7(b),

we proposed to reduce the number to an original and 1 copy, except

where otherwise provided in the rules. We attempted throughout to

minimize the number of copies required of the parties. We sought

comment especially on whether there should be one uniform copy

requirement of an original and 4 copies. In this rule, we also proposed

to permit filing and service of pleadings via facsimile transmission.

Most parties that commented on the copy requirement prefer a

uniform requirement of an original and 1 copy. We will adopt one rule

for all documents, but must require more than 1 copy, as that is not

always adequate for our use (for example, we need more than 1 copy of

briefs). At a time when the government is increasingly assessing fees

for services, it would be inappropriate for the Board to subsidize

parties' copying expenses. An original and 3 copies will be required.

Our proposal to allow filing by facsimile produced more questions

and complications than expected. Accordingly, we will continue current

practice and not adopt the proposal. Faxes may continue to be used as a

convenience, for example when immediate receipt by the Board is

required, but will not substitute for any filing or copy requirement of

these rules. Thus, the document that is faxed must also be sent to the

Board via an authorized service method, with the confirmation copy to

be noted as such (to minimize confusion). This is normal business

practice, and will not create a problem for the Board provided parties

properly indicate confirmation copies.

As recommended, we have added addresses and details the parties

suggested. We will defer, pending technology improvements, the proposal

that we accept two-sided copies.

5. The most significant changes proposed to Sec. 821.8 related to

our use of certified mail in serving our decisions and our addition of

a sample certificate of service. As to service by others, we have

adopted the suggested changes to the sample certificate. As to our

service via certified mail, we will adopt the proposed change. That is,

we will discontinue serving the FAA via certified mail. We are aware of

no receipt problem, having had no difficulty receiving first class mail

sent us by the FAA. We are not persuaded by the FAA's equal treatment

argument. Certified mail for respondents is appropriate, in light of

the nature of the proceedings and their effect on them.

It was suggested that the Board place the service date on the front

of every document it serves. We agree, and will do so. We do not agree,

however, with the suggestion that, prior to the appearance of an

attorney or other representative, service be made not only on the

carrier's designated agent (see Sec. 821.8(d)), but also on the

carrier's chief executive. The purpose of the agent here is to receive

service; it is reasonable to expect the agent will promptly advise its

principal.

6. Our proposal, in Sec. 821.9, to liberalize the filing of amicus

curiae briefs was well received. We do not, however, see the need to

adopt the FAA's suggestion that the standard for filing be the same as

for intervention generally. The rule is intended to be more flexible:

amicus briefs are encouraged, but may be disallowed if too late.

EAA and NAAP, in connection with their discussion of amicus briefs,

recommend that the Board hear oral argument more often, and object to

current rule Sec. 821.48(g), which provides that it will not normally

be held. We are not inclined to change our rules or practice in this

regard. The Aviation Safety Enforcement docket lends itself to review

on a written record. On appeal, the issues are clearly set forth, and

may be fully argued in writing. Nevertheless, where we believe oral

argument, with discussion and questioning, would be useful, we will not

hesitate to schedule it. Accordingly, the rule is adopted as proposed.

7. In our NPR, we invited suggestions for rule changes other than

those we proposed. The NTSB Bar proposed to permit parties to stipulate

to extensions of time ``or other appropriate relief'' and to provide

that extensions of time or other relief will be granted where there has

been ``excusable neglect'' and no prejudice results. We decline to

adopt this proposed change. The Board must be able to control its

proceedings and liberally grants extensions. We will, however, codify

our existing practice by adding a provision to Sec. 821.11 allowing

oral requests for extension of time.

8. Our first proposed change to Sec. 821.12, adding a reference to

compliance with statutory requirements in making amendments to a

complaint, engendered considerable discussion. Mark McDermott comments

that the FAA is making too many last-minute amendments, and suggests

that the Board should prohibit amendments in emergency cases. NAAP

believes that our proposed reference is too narrow. It proposes, and

argues that the law requires, that the Administrator be required to

reissue any amended order, and that amendment at the hearing not be

permitted. The FAA responds that a rule requiring amendments to be

consistent with informal conference requirements is not necessary, but

if one is adopted, our proposal should be modified because the statute

can be met by other means. It recommends we include language directly

from (former) 49 U.S.C. App. 1429(a). The FAA continues that amendments

to complaints should be allowed by the law judge when respondent will

not be unduly prejudiced and that technical amendments should be

permitted at any time. It notes that parties are already able to object

to amendments that do not comply with Oceanair of Florida v. Nat.

Transp. Safety Bd., 888 F.2d 767 (11th Cir. 1989).

We are not convinced that our current practice does not adequately

balance the interests and rights of the parties. The law judge has

discretion to allow amendment of the complaint, and does so only after

full consideration of the positions of the parties and a finding that

amendment will not prejudice respondent, or prohibit a fair hearing.

Commentors have pointed to no particular case where they believe these

concerns were not properly balanced, and the number of amendments, per

se, does not control any conclusion in this regard.

Accordingly, we will not amend the rule to restrict complaint

amendments but will continue to handle the question case by case. There

were no comments on our proposal to permit withdrawal of some pleadings

without our permission, and we will adopt that language as drafted.

9. We offered no proposed change to Sec. 821.13, which governs the

manner in which a party may waive rights (for example, the statutory

right in an emergency case that a decision be issued in 60 days). The

FAA proposes that we allow oral waivers, especially oral waiver of

expedited review in emergencies, as the FAA believes this is common

practice. We agree, however, with NAAP, which replies that waivers need

to be on the record, and this is what the rule currently requires. To

the extent it is not being done (and we are not aware of a serious

problem in this regard), the potential for later disputes increases,

and we encourage all parties to ensure that waivers are memorialized in

the record in some fashion.

10. In light of the parties' suggestions that we specify in the

rules to what office documents should be sent, we will amend

Sec. 821.14 to include a reference to the Office of General Counsel,

rather than the current broad reference to the Board.

11. The rule changes proposed to Sec. 821.19 involve discovery and

the preservation of evidence. Mark McDermott suggests that we should

only require that discovery documents be filed with the law judges when

there is a dispute. The FAA agrees, arguing that review of this

material can prejudice the law judge due to prehearing familiarity with

a document that is subsequently excluded. NAAP disagrees, and believes

that law judges should have prehearing familiarity with the issues and

have the skills to disregard excluded evidence.

We have found that both discovery requests and responses are useful

in reaching an informed decision, and we see no justifiable concern

that our law judges are unable to ignore information they may have read

that is later excluded from the record. Advance information about the

case, as can come from familiarity with the discovery materials,

promotes efficient processing and allows the law judge to be as

prepared as the parties when the hearing starts.

The parties also commented extensively on their perceptions of

inequities in the discovery process. Mr. McDermott, for example, seeks

a rule specifically to authorize protective orders in the case of FAA

harassment through excessive discovery. EAA questions whether our

proposed change to subparagraph (d) is strong enough. It and NAAP

support a more explicit rule authorizing sanctions for failure to

comply with discovery. NAAP also seeks a rule that precludes the FAA

from using discovery as a substitute for a prior investigation,4

and believes that the proposed subparagraph (d) does not do enough to

prevent destruction of relevant evidence, namely air traffic control

tapes.

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\4\NAAP cites Administrator v. Smith, 4 NTSB 978, 979 note 6

(1983), in support, but we do not read that case so broadly as to

warrant an absolute rule. The decision demonstrates, to the

contrary, that the circumstances of each case must be considered in

determining the appropriate sanction.

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The FAA, in turn, believes that expansive discovery should be

curtailed, and replies to NAAP that subparagraph (d) is not necessary

in light of Administrator v. Ryan, NTSB Order EA-3238 (1990) (when

evidence has been requested in a timely fashion, it is incumbent on the

Administrator to ensure its safekeeping). If we adopt this proposal,

the FAA argues, its language should be more specific and separate the

failure to preserve from the failure to produce. The FAA also suggests

numerous interpretive difficulties with the wording of this proposed

rule.

The parties' disagreement regarding evidence production, and ATC

tapes in particular, stems from the FAA's practice of reusing tapes in

15-day cycles if no request to preserve the tape has been made. We have

accepted this practice as a reasonable accommodation of the interests

of both the FAA and airmen. We have no authority to force FAA to amend

its practice, nor are we convinced by the arguments made here that the

FAA's failure to preserve a tape should in every case result in an

adverse conclusion regarding its contents.5

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\5\In connection with review of our discovery rules, we have

considered the recent amendment to the Federal Rules.

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Beyond that, and as a general rule, we believe that the proposed

rule is flexible, merely reflects our current precedent and practice,

and will allow our law judges, as appropriate, ample authority to

compel discovery, to curtail its abuse, and to fashion appropriate

remedies in the event it is demonstrated that either party unreasonably

has failed to respond completely or has improperly failed to preserve

timely requested evidence.

12. In Sec. 821.20(c), we proposed changes that would codify case

law on witness fees and apply to Board employee witnesses in

enforcement cases the same rules we apply to the testimony of our

employees in accident-related civil proceedings. We received only one

comment, suggesting that this rule be expanded to FAA employees as

well, thus potentially limiting the testimony of FAA personnel who

assisted the Board in its investigation. This is relevant in cases

where an investigation of an accident or incident is followed by an FAA

enforcement action. The FAA opposes this proposal, stating it would

raise questions about the FAA's ability or willingness to assist the

Board in its investigations.

We are well aware of NAAP's concerns, but are not convinced that

the rule it proposes should be adopted. Our declination here, however,

should not be interpreted as lack of interest in the issue. To the

contrary, we specifically reserve the point, and intend to study it in

the future and continue to discuss with the FAA the proper relationship

between the two functions.

13. We proposed minor changes to Sec. 821.24(d), dealing with

medical proceedings, to reflect the special issuance process. Mr.

McDermott proposes to make the exchange of medical information a mutual

obligation instead of putting restrictions on new evidence only on

petitioner, as the rule does. He believes that the FAA should be

precluded from using medical evidence not provided petitioner at least

30 days before the hearing. FAA responds that, as a practical matter,

all medical evidence is in respondent's hands.

Our change in (e) was intended simply to address the situation

where, prior to hearing, but unknown to the FAA, a petitioner undergoes

new testing or evaluation. If this occurs, the FAA is denied the

opportunity to review, in advance of the hearing, medical conclusions

that may be different from the medical information (typically obtained

from petitioner or from his physicians, with his consent) on which the

FAA's denial of certification was based. If the FAA is surprised at the

hearing by new evidence, it must have the opportunity for its experts

to review the information.6 In contrast, from a petitioner's

standpoint, whatever medical data the FAA has received is either

familiar to petitioner, having come from his own doctors, or is

discoverable by him prior to the hearing. While we therefore will not

make this change proposed by Mr. McDermott, we will add a clarifying

sentence to subparagraph (d) explicitly indicating our lack of

jurisdiction to review or order special issuances.

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\6\Potentially, that review could lead to a change in the FAA's

position and issuance of a certificate.

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14. Section 821.31(a), dealing with filing of the complaint, had

produced some confusion in the past due to use of the phrase ``filed

upon the Administrator'' (see Administrator v. Simonton, NTSB Order EA-

3734 (1992)), and we proposed to change the phrase to ``received by the

Administrator.'' This produced similar concerns. AOPA and Mr. McDermott

think this makes the rule more confusing, and suggest that we count

from a service date, as we use service dates for other purposes and

this will help the infrequent user of the rules.

We agree. The rule will provide that the complaint must be filed

within 10 days of service of the notice of appeal on the Administrator.

This will also respond to the FAA's concern that the current 5 days is

too short.7

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\7\We are not convinced, however, that the FAA needs 20 days for

this filing.

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15. Although we proposed no change, a number of parties commented

on our stale complaint rule, Sec. 821.33. The NTSB Bar, in cases where

6 months has passed before a Notice of Proposed Certificate Action has

been issued, wants the FAA's complaint to contain a certification that

good cause existed for the delay, and where lack of qualification is

alleged, the certification would state that this allegation was made in

good faith and was warranted under the facts and the law. The FAA

opposes these suggestions, citing our earlier rejection of a

certification requirement (Regulatory Docket No. 5, 11/29/88).

The comments of Mark McDermott and the FAA reflect some confusion

in the meaning and implementing of subparagraph (b) of the stale

complaint rule (i.e., where lack of qualification is alleged, law judge

first determines whether it is presented and, if an issue of

qualification is raised, the law judge is to proceed to a hearing on

that issue only). The FAA disagrees, however, with Mr. McDermott's

comment that failure to establish lack of qualifications requires

dismissal of stale allegations, noting that it still has the

opportunity to justify the delay or show public interest in proceeding

despite the delay.

We recognize that subparagraph (b) of the stale complaint rule has

caused some interpretive difficulty in the past, but the problem has

not been insurmountable and does not require immediate amendment.

Because issues regarding this rule are raised in connection with our

proposed (and interim) civil penalty rules, we will defer any rule

changes here.

16. In response to our proposed change to subparagraph (a) of

Sec. 821.37, dealing with the selection of the place for hearing, the

FAA agrees that foreign hearings should be rare if we have authority to

hold them, but believes we do not. In support, it argues that Sec. 5(1)

of the Department of Transportation Act of 1966, Pub. L. 89-670,

authorized Civil Aeronautics Board hearings only in the U.S. Although

the Independent Safety Board Act of 1974 has no similar language, the

FAA argues, we should not assume change was intended.

Our enabling statute does not prohibit foreign hearings, as

Congress easily could have done given the prior language. Accordingly,

we are not convinced, based on the FAA's argument, that we should

change the rule here. Although we will adopt the rule as proposed, any

party is free to argue this point further in a particular case.

17. We proposed to change the evidence rule found in Sec. 821.38 to

codify our recent ruling in Administrator v. Repacholi, NTSB Order No.

EA-3888 (1993), permitting hearsay in Board proceedings, with its

trustworthiness going to the weight and credibility accorded it. Those

commentors in opposition (Mark McDermott and AOPA) have not convinced

us that our judges are not equipped fairly to measure trustworthiness

and credibility of all forms of hearsay, just as they otherwise weigh

credibility, and we believe NAAP's changes create unreasonable hurdles

to the use of such evidence--even greater hurdles than now exist.

The parties uniformly had difficulty with our proposal in

subparagraph (c) to assume the authenticity of evidence absent an

objection. It appears that implementation problems would outweigh any

benefit such a rule might have in our proceedings and, therefore, we

will not adopt it. Nevertheless, we encourage parties to use requests

to admit as well as stipulations to establish the authenticity of

documents in advance of a hearing. In response to the FAA's comment

that subparagraph (b) does not properly reflect the Administrative

Procedure Act, we will amend that provision, and we will modify the

offer of proof language to make it permissive, rather than mandatory.

18. The NTSB Bar has proposed that, in Sec. 821.42 (initial

decisions by law judges), we require the law judge include in his

opinion whether the Administrator was substantially justified so that a

later EAJA\8\ case may be expedited. The FAA responds, and we agree,

that this is premature and wasteful (e.g., qualification for fee

recovery not having been determined) and inconsistent with the separate

statutory EAJA scheme that requires a final Board order on the merits.

The practice of the same law judge hearing any EAJA application

promotes the efficient administration the commentor seeks.

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\8\Equal Access to Justice Act.

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19. Although there were only supporting comments to our proposed

change in Sec. 821.47, we are adding a discussion here of when the law

judge loses jurisdiction, with further action being by the Board

itself. The addition in part reflects current law (see Administrator v.

Doll, NTSB Order EA-3439 (1991) at footnote 9), and is being added in

light of frequent questions in this regard. The new portion of the rule

provides a method for handling requests to a law judge that he

reconsider his own decision. For obvious reasons, the new procedure

will not apply in emergency cases.

20. In response to our proposed revisions to Sec. 821.48(e), NAAP

suggests that we remove the sentence in subparagraph (g) regarding oral

argument. As discussed in connection with Sec. 821.9, we decline to

make this change, and in light of our conclusions regarding a uniform

copy requirement, we will delete subparagraph (f). Although NAAP also

proposes a shorter version of (e), we believe our proposed language is

more appropriate to assist the many pro se participants in our

proceedings.

21. We proposed to revise Secs. 821.49 and 821.57(c) to indicate

that, if the Board raises a new issue it finds necessary to resolve the

proceeding, it will afford the parties the opportunity to submit

argument if it believes that such an opportunity is necessary or

appropriate. We received a number of comments in opposition to this

change, but believe they stem from misunderstanding of our practice and

our intent.

We have used this approach on many occasions, with no complaint

from any party. Compare, e.g., Administrator v. Nyren, NTSB Order EA-

3930 (1993) (Board reopened for further argument on effect of the FAA

Civil Penalty Administrative Assessment Act of 1992 on the shared

expense rule) and Administrator v. Miller, NTSB Order EA-3581 (1992)

(Board redefined issue before it and dismissed complaint on finding

that Administrator's interpretation of his rule was not reasonable);

Administrator v. Shuster, NTSB Order EA-3613 (1992) (Board dismissed

certain charges based on its interpretation of medical application);

and Administrator v. Frohmuth and Dworak, NTSB Order EA-3816 (1993)

(Board dismissed complaints based on a new, expanded formulation of

case law excusing altitude deviations caused by pilot mistake).

Furthermore, Board action is subject to review on petition for

reconsideration. On further review, we have conformed the language in

Sec. 821.57 with the language in Sec. 821.49.

22. The parties offered no comment regarding our proposed change to

Sec. 821.50, but NAAP proposes that we amend subparagraph (f) to

indicate that the filing of a petition under this section will always

stay the effective date of the order. We decline to make this change.

As we recently noted in Administrator v. Frost, NTSB Order EA-3989

(1993), we agree with this sentiment as a general rule. Nevertheless,

NAAP has not convinced us that we do not and should not retain the

flexibility (whether specifically expressed in our rules or not) to

order otherwise should extraordinary circumstances warrant.

23. In addition to our wording change to Sec. 821.54 to reflect

proceedings under Section 609(c)(3) of the Federal Aviation Act where

the Administrator issues ``immediately effective'' orders, see

Administrator v. Zacher, NTSB Order EA-3972 (1993), the FAA recommends,

and we agree, that the title of Subpart I should be changed to ``Rules

Applicable to Emergency Proceedings and other Immediately Effective

Orders.''

As to the substance of that rule, the parties urge a stricter

construction in various ways. The NTSB Bar and EAA ask us to add a

requirement to subparagraph (a) that the FAA justify the emergency, and

the NTSB Bar urges that the issue of whether a case is an emergency be

subject to our review separately from the merits of the case. Mr.

McDermott recommends that the statute be strictly construed in favor of

respondents and that the Board streamline its process to shorten its

timetable in these cases.

We believe that use of emergency authority should be extraordinary,

for example when there is an immediate and exceptional aviation safety

risk. Nevertheless, nothing raised by the parties here has convinced us

we have erred, as a legal matter, in our long-established precedent\9\

holding that we do not have jurisdiction to review the Administrator's

use of his emergency power. Parties may seek review of those decisions

in the courts.

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\9\See, e.g., Administrator v. Anderson, 5 NTSB 564, 565 (1985).

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We also agree, not only with emergency cases but with all cases on

our docket, that affected individuals deserve timely and prompt

decisionmaking. Toward that end, we have made clearing our case backlog

a priority.

24. We proposed to add a new subparagraph (f) to Sec. 821.55 to

leave no doubt that discovery was available in emergency proceedings.

In response to EAA's and NAAP's concern that authority to sanction

noncompliance with discovery be clear, we note that our proposal makes

Sec. 821.19 applicable to emergency cases. As the FAA suggests, we have

added references to ``immediately effective orders,'' and we have

deleted references to Sec. 821.56 and Sec. 821.57, replacing them with

a general reference to ``this subpart.''

Despite the FAA's concern that subparagraph (e) is confusing, we

have not had that experience. We note that this rule is intended to

preclude separate filings that would complicate or prevent compliance

with the statutory deadline. The substance of objections (such as

jurisdictional ones that would otherwise be raised in a motion to

dismiss) is to be raised in the answer, or in otherwise permitted

pleadings.

On further review, we are amending subparagraph (b) on our own

motion to require either that the appeal attach a copy of the

Administrator's order or that it indicate whether it is an emergency.

This will greatly assist us in efficiently processing emergency cases.

25. In response to the comments, we will modify Sec. 821.56(a),

Notice of hearing, to clarify its applicability to immediately

effective orders. We are not convinced that NAAP's change, to retain

the current timetable that the hearing be set no later than 25 days

after the Board's receipt of the complaint should be made, as our

change to refer to the service date is intended to help avoid

processing delays and to allow parties to calculate key dates.

26. In response to concerns raised by commentors regarding our

proposal changing the time periods for filing appeal briefs and

replies, we will amend the rule to allow 7 days for reply briefs, thus

providing both sides equal time. We have also added, in response to the

concern of the FAA that in a particular case there may be no overnight

or facsimile service available, an amendment allowing use of other

transmission services if approved by the Board.

27. EAA and Mark McDermott object to our proposal at Sec. 821.63,

extending sanctions for ex parte communications to include sanctioning

counsel. On the other hand, NAAP supports sanctioning counsel rather

than the existing rule that would sanction the client. We will adopt

the rule as proposed. Contrary to the concerns expressed, the Board is

well able to distinguish between vigorous advocacy and unlawful

attempts to influence the decisionmaker. Counsel must be aware of and

respect the difference, and it may not be appropriate in a particular

case that the penalty for breach of the ex parte rules be assessed

against the client.

28. We proposed to amend Sec. 821.64 to require that petitions for

stay pending judicial review be filed before the effective date of the

order. AOPA is concerned that this change was proposed for the Board's

convenience, and argues that there may be reasons for seeking a stay

after the order is effective, such as late retention of counsel. Our

proposal stemmed from our concern that we might be without authority to

stay an order when a respondent is already in default or that, as a

matter of policy, we should not stay an order under such circumstances

(e.g., in default by not surrendering the certificate by the ordered

date). We continue to believe that 30 days (the effective date of our

order on appeal) is sufficient time to file a petition for stay. In

response to AOPA's concern about time to hire counsel, we note that the

petition may be pro se, and need not be extensive. Our precedent

regarding the granting or denying of stays pending judicial review is

clear. See Administrator v. Reinhold, NTSB Order EA-4224 (1994).

In light of our experience under the FAA Civil Penalty

Administrative Assessment Act of 1992, we will add a new sentence to

subparagraph (a) of Sec. 821.64 explaining procedures applicable where

the FAA appeals our order.

29. Finally, we will amend the authority references at the start of

the rules and statutory references throughout the rules to reflect the

new codification enacted in Pub.L. 103-272.

As required by the Regulatory Flexibility Act, we certify that the

amended rules will not have a substantial impact on a significant

number of small entities. The rules are not major rules for the

purposes of Executive Order 12291. We also conclude that this action

will not significantly affect either the quality of the human

environment or the conservation of energy resources, nor will this

action impose any information collection requirements requiring

approval under the Paperwork Reduction Act.

List of Subjects in 49 CFR Part 821

Administrative practice and procedure, Airmen, Aviation safety.

Accordingly, 49 CFR Part 821 is amended as set forth below.

PART 821--RULES OF PRACTICE IN AIR SAFETY PROCEEDINGS

1. The authority citation for Part 821 is revised to read as

follows:

Authority: Title VI, Federal Aviation Act of 1958, as amended

(49 U.S.C. 40101 et seq.); Independent Safety Board Act of 1974,

Pub.L. 93-633, 88 Stat. 2166 (49 U.S.C. 1101 et seq.), and FAA Civil

Penalty Administrative Assessment Act of 1992, Pub.L. 102-345 (49

U.S.C. 46301), unless otherwise noted.

2. Section 821.1 is amended by revising the definition of ``initial

decision'' to read as follows:

Sec. 821.1 Definitions.

* * * * *

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 that has the effect of terminating the proceeding, such as one

granting a motion to dismiss in lieu of an answer, as provided in

Sec. 821.17, and one granting a motion for summary judgment. Initial

decision does not include cases where the record is certified to the

Board, with or without a recommended decision, orders partly granting a

motion to dismiss and requiring an answer to any remaining allegations,

or rulings by the law judge on interlocutory matters appealed to the

Board under Sec. 821.16;

* * * * *

3. A new Sec. 821.3 is added to subpart A to read as follows:

Sec. 821.3 Description of docket numbering system.

In addition to sequential numbering of cases as received, each case

formally handled by the Board receives a letter prefix. These letter

prefixes reflect the case type: ``SE'' for the safety enforcement

(suspension/revocation) docket; ``SM'' (safety medical) for an

enforcement case involving a medical application; ``SR'' for a case

involving safety registration issues under 49 U.S.C. 44101 et seq.;

``CD'' for certificate denial (see 49 U.S.C. 44703); a new ``CP'' for

cases in which the Administrator seeks a civil penalty; and ``EAJA''

for applications seeking Equal Access to Justice Act awards.

4. Section 821.6 is amended by revising paragraph (d) to read as

follows:

Sec. 821.6 Appearances and rights of witnesses.

* * * * *

(d) Any party to a proceeding who is represented by an attorney or

party representative shall notify the Board of the name and address of

that attorney or representative. In the event of a change in attorney

or representative 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 the attorney or representative participating in

any way, including the filing of documents, in any proceeding.

5. Section 821.7 is amended by revising paragraphs (a) and (b) to

read as follows:

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, National

Transportation Safety Board, 490 L'Enfant Plaza East, S.W., Washington,

DC 20594-2000, and addressed to the assigned law judge, if any.

Subsequent to the filing of a notice of appeal from a law judge's

initial decision or order terminating the proceeding (written or oral),

or a decision permitting an interlocutory appeal, all documents should

be directed to the Office of General Counsel, also at the above

address. Filing of any document shall be by personal delivery, by U.S.

Postal Service first class mail, or by overnight mail delivery service.

Except as provided in Sec. 821.57, facsimile filing is permitted as a

convenience to the parties only. It does not substitute for filing

requirements in this part, and any fax transmission to the Board must

be followed, no later than the following busniess day, by a

confirmation copy, clearly marked as such, sent by a method of service

authorized in this paragraph. Unless otherwise shown to be inaccurate,

documents shall be deemed filed on the date of personal delivery, on

the send date shown on the facsimile (provided a confirmation copy is

properly served), 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.

(b) Number of copies. An executed original and 3 copies of each

document shall be filed with the Board. Copies need not be signed, but

the name of the person signing the original shall be shown.

* * * * *

6. Section 821.8 is revised to read as follows:

Sec. 821.8 Service of documents.

(a) Who must be served. (1) Copies of all documents filed with the

Board must be served on all parties to the proceeding by the person

filing them. A certificate of service shall accompany all documents

when they are tendered for filing and shall certify concurrent service

on the Board and the parties. Certificates of service shall be in

substantially the following form:

I hereby certify that I have this day served the foregoing

document(s) on the following parties' counsel or designated

representatives [or on the party, if without counsel or

representative] at the address indicated by [specify the method of

service: first class mail, personal service, etc.] [indicate names

and addresses here]

Dated at ________________, this ______ day of ______, 19______.

(Signature)______________

For (on behalf of)______________''

(2) Service shall be made on the person designated in accordance

with Sec. 821.7(f) to receive service. If no such person has been

designated, service shall be made on the party.

(b) Method of service. Except as set forth in paragraph (c) and (d)

of this section and as required by Sec. 821.57(b), the method of

service is the same as that set forth in Sec. 821.7(a) for filing of

documents. The Board will serve orders, notices of hearing, and written

initial decisions on attorneys or representatives designated under

Sec. 821.7(f) or, if no attorney or representative, on the party

itself, and will do so by certified mail, except that service on the

Administrator will be by first-class mail.

(c) Where service shall be made. Except for personal service,

addresses for service of documents shall be those in the official

record or, if none in the case of the Federal Aviation Administration,

the Office of the Chief Counsel, Washington, DC 20591. In the case of

an agent designated by an air carrier under section 1005(b) of the Act,

service of any sort may be accomplished only at the agent's office or

usual place of residence.

(d) Presumption of service. There shall be a presumption of lawful

service:

(1) When acknowledgement of receipt is 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 Sec. 821.7(f); or

(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 undelivered, unclaimed, or refused.

(e) Date of service. The date of service shall be determined in the

same manner as the filing date is determined under Sec. 821.7(a).

7. Section 821.9 is revised to read as follows:

Sec. 821.9 Intervention and amicus appearance.

(a) Intervention. Any person may move for leave to intervene in a

proceeding and may become a party thereto, if it is found 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 that will 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 law judge's discretion, and depends on the

above criteria.

(b) Amicus curiae briefs. A brief of amicus curiae in matters on

appeal from initial decisions may be filed if accompanied by written

consent of all the parties, or if, in the opinion of the Board's

General Counsel, the brief will not unduly broaden the matters at issue

or unduly prejudice any party to the litigation. A brief may be

conditionally filed with motion for leave. The motion shall identify

the interest of the movant and shall state the reasons why a brief of

amicus curiae is desirable. Such brief and motion shall be filed within

the time allowed the party whose position as to affirmance or reversal

the brief would support, unless cause for late filing is shown, in

which event the General Counsel may provide an opportunity for response

as a condition of acceptance.

8. Section 821.11 is revised to read as follows:

Sec. 821.11 Extension of time.

(a) Upon written request filed with the Board and served on all

parties, or by oral request with any extension granted confirmed in

writing and served on all parties, and for good cause shown, the chief

judge, the law judge, or the Board may grant an extension of time to

file any document except a petition for reconsideration.

(b) The Board's General Counsel is authorized to grant unopposed

extensions on timely oral request without a showing of good cause in

cases appealed to the Board from a decision of a law judge. Written

confirmation of such a grant must promptly be sent by the requesting

party to the Board and served on other parties.

(c) Extensions of time to file petitions for reconsideration will

be granted only in extraordinary circumstances.

9. Section 821.12 is revised to read as follows:

Sec. 821.12 Amendment and withdrawal of pleadings.

(a) Amendment. At any time more than 15 days prior to the 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. In

the case of amendment to an answerable pleading, the law judge shall

allow the adverse party a reasonable time to object or answer.

Amendments to complaints shall be consistent with the requirements of

49 U.S.C. 44709(c) and 44710(c).

(b) Withdrawal. Except in the case of withdrawal of an appeal to

the Board, withdrawal of a petition for review, withdrawal of a

complaint, or withdrawal of an appeal from an initial decision, a party

may withdraw pleadings only on approval of a law judge or the Board.

9. Section 821.14 is amended by revising paragraph (a) to read as

follows:

Sec. 821.14 Motions.

(a) General. An application to the Board or to a law judge for an

order or ruling not otherwise 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, Office of General

Counsel. All motions not specifically provided for in any other section

of this part shall be made at an appropriate time, depending on the

nature thereof and the relief requested.

* * * * *

10. Section 821.19 is amended by revising paragraph (b) and adding

a new paragraph (d) to read as follows:

Sec. 821.19 Depositions and other discovery.

* * * * *

(b) Exchange of information by parties. At any time before hearing,

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, either the assigned law judge or another law

judge delegated this responsibility (if a law judge has not yet been

assigned) may issue an order directing compliance with any ruling made

with respect to discovery. Any party may also use written

interrogatories, requests to admit, or other discovery tools. Copies of

discovery requests and responses shall be served on the law judge

assigned to the proceeding.

* * * * *

(d) Failure to provide or preserve evidence. The failure of any

party to comply with an order of an administrative law judge compelling

discovery or to cooperate in a timely request for the preservation of

evidence may result in a negative inference against that party with

respect to the matter sought and not provided or preserved, a

preclusion order, or dismissal.

11. Section 821.20 is amended by revising paragraphs (b) and (c) to

read as follows:

Sec. 821.20 Subpoenas, witness fees, and appearances of Board Members,

officers, or employees.

* * * * *

(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. The Board may decline to process a proceeding

further should a party fail to compensate a witness pursuant to this

paragraph.

(c) Board Members, officers, or employees. In order to encourage a

free flow of information to the Board's accident investigators, the

Board disfavors the use of its personnel in enforcement proceedings.

Therefore, the provisions of paragraph (a) of this section are not

applicable to Board Members, officers, or employees, or the production

of documents in their custody. Applications for the attendance of such

persons or the production of such documents at hearing shall be

addressed to the chief law judge or the assigned law judge, as the case

may be, in writing, and shall set forth the need of the moving party

for such testimony, and a showing that such testimony is not now, or

was not otherwise, reasonably available from other sources. The law

judge shall not permit such testimony or documentary evidence to

include any opinion testimony, or any account of statements of a

respondent, made during the Board's investigation of any accident.

12. Section 821.24 is amended by revising paragraphs (a), (d) and

(e) to read as follows:

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 within 60 days from the time the Administrator's

action was served on petitioner. The petition shall contain a short

statement of the facts on which petitioner's case depends and a

statement of the requested action, and may be in letter form.

* * * * *

(d) Stay of proceeding pending request for special issuance

(restricted certificate). The Board lacks authority to review special

issuances, or to direct that they be issued. Where a request for

special issuance (restricted certificate) has been filed with the

Administrator pursuant to the Federal Aviation Regulations, the Board

will hold a petition for review in abeyance pending final action by the

Administrator or for 180 days from the date of the Administrator's

initial certificate denial, whichever occurs first.

(e) New evidence. If petitioner has undergone medical testing or

evaluation in addition to that already submitted or known to the

Administrator, and wishes to introduce the results into the record, the

new medical evidence must be served on the Administrator at least 30

days before the hearing. Absent good cause, failure timely to serve any

new evidence will result in its exclusion from the record. The

Administrator may amend his answer within 10 days from the date the new

evidence is served to respond to such new evidence.

13. Section 821.30 is amended by revising paragraph (a) to read as

follows:

Sec. 821.30 Initiation of proceedings.

(a) Appeal. A certificate holder may file with the Board an appeal

from an order of the Administrator amending, modifying, suspending, or

revoking a certificate. The appeal shall be filed with the Board within

20 days from the time of service of the order and be accompanied with

proof of service on the Administrator.

* * * * *

14. Section 821.31 is amended by revising paragraph (a) to read as

follows:

Sec. 821.31 Complaint procedure.

(a) Filing, time of filing, and service on 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 10 days after the service date of the notice of

appeal.

* * * * *

15. Section 821.35 is amended by revising paragraph (a) to read as

follows:

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 Docket Section, Office of Administrative Law Judges,

for handling by the chief law judge, who may handle these matters

personally or who may delegate all or any of them to other law judges

for decision. After assignment, all motions, requests, and documents

shall be addressed to that law judge. The authority of the assigned 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.

* * * * *

16. Section 821.37 is amended by revising paragraph (a) to read as

follows:

Sec. 821.37 Notice of hearing.

(a) Notice. The chief law judge (or his law judge delegate) or the

law judge to whom the case is assigned shall set a reasonable date,

time and place for the hearing. The notice of the hearing shall be

served at least 30 days in advance thereof, and shall include notice of

the nature of the hearing. The law judge may set the hearing fewer than

30 days after the notice of hearing is served if the parties agree to

an earlier hearing date. In setting the hearing date, due regard shall

be given to any need for discovery. In setting the place of the

hearing, due regard shall be given to the convenience of the parties

and to conservation of Board funds. The location of the witnesses and

the suitability of a site served by a scheduled air carrier are added

factors to be considered in setting the hearing location, as is Board

policy that foreign-held hearings are appropriate only in the most

extraordinary circumstances.

* * * * *

17. Section 821.38 is revised to read as follows:

Sec. 821.38 Evidence.

(a) Every party shall have the right to present a case-in-chief 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. Hearsay evidence (including

hearsay within hearsay where there are acceptable circumstantial

indicia of trustworthiness) is admissible.

(b) All material and relevant evidence should be admitted, but a

law judge may exclude unduly repetitious evidence pursuant to

Sec. 556(d) of the Administrative Procedure Act. Any evidence that is

offered and excluded may be described (via an ``offer of proof''), and

that description should be made a part of the record.

18. Section 821.42 is amended by removing paragraph (c) and

redesignating paragraph (d) as (c).

19. Section 821.43 is revised to read as follows:

Sec. 821.43 Effect of law judge's initial decision and filing of an

appeal therefrom.

If an appeal from the initial decision is not timely filed with the

Board by a party, the initial decision shall become final but shall not

be precedent binding on the Board. The filing of a timely appeal shall

stay the initial decision.

20. Section 821.47 is revised to read as follows:

Sec. 821.47 Notice of appeal.

(a) A party may appeal from a law judge's order or from the initial

decision by filing with the Board and serving on 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 a

final or appealable (see Sec. 821.16) order has been served. At any

time before the date for filing an appeal from an initial decision or

order has passed, the law judge or the Board may, for good cause shown,

extend the time within which to file an appeal, and the law judge may

also reopen the case for good cause on notice to the parties.

(b) A law judge may not reconsider his initial decision once the

time for appealing to the Board from the initial decision has expired

or once an appeal with the Board has been filed. However, a timely

request for reconsideration by the law judge of his decision, filed

before an appeal to the Board has been taken, will stay the deadline

for appealing to the Board until 10 days after the date the law judge

serves his decision on the request. For the purpose of this section, a

request for reconsideration submitted on the same date as a notice of

appeal will be deemed to have been filed first.

21. Section 821.48 is amended by revising paragraph (e) to read as

follows and by removing paragraph (f), and redesignating paragraph (g)

as (f):

Sec. 821.48 Briefs and oral argument.

* * * * *

(e) Other briefs. Subsequent to brief filing, parties may file

citations to supplemental authorities. This procedure may be used only

for identifying new, relevant decisions, not to correct omissions in

briefing or to respond to a reply. No argument may be included in such

filings. Parties shall submit, with any decision, a reference to the

page of the brief to which the decision pertains. Any response shall be

filed within 10 days and shall be similarly limited.

* * * * *

22. Section 821.49 is revised to read as follows:

Sec. 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 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. If necessary or appropriate, a

reasonable opportunity shall be afforded the parties to comment.

23. Section 821.50 is amended by revising paragraphs (a) and (b) to

read as follows:

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. Any such petitions shall be served on all

other parties to the proceeding within 30 days after service of the

Board's order on appeal from the initial decision. Initial decisions

that have become final because they were not appealed may not be the

subject of petitions under this section.

(b) Timing and service. The petition shall be filed with the Board

and served on the parties within 30 days after service of the Board's

order on appeal from the initial decision.

* * * * *

24. The heading of Subpart I is revised to read:

Subpart I--Rules Applicable to Emergency Proceedings and Other

Immediately Effective Orders

25. Section 821.54 is amended by revising paragraph (a) to read as

follows:

Sec. 821.54 General.

(a) Applicability. This subpart shall apply to any order issued by

the Administrator under section 609 of the Act: as an emergency order;

as an order not designated as an emergency order, but later amended to

be an emergency order; and any order designated as immediately

effective or effective immediately.

* * * * *

26. Section 821.55 is amended by revising paragraphs (a), (b), and

(c) and adding a new paragraph (f) to read as follows:

Sec. 821.55 Appeal, complaint, answer to the complaint, and motions.

(a) Time within which to appeal. The certificate holder may appeal

within 10 days after the service of the Administrator's emergency or

other immediately effective order. The certificate holder shall serve a

copy of his appeal on the Administrator.

(b) Form and content of appeal. The appeal may be in letter form.

It shall identify the Administrator's order and the certificate

affected, shall recite the Administrator's action, and shall identify

the issues of fact or law on which the appeal is based, and the relief

sought. The appeal shall either attach a copy of the Administrator's

order or shall clearly indicate that an emergency or other immediately

effective order is being appealed.

(c) Complaint. Within 3 days after receipt of the appeal, the

Administrator shall file with the Board an original and 3 copies of his

emergency or other immediately effective order as his complaint, and

serve a copy on the respondent.

* * * * *

(f) Discovery. Discovery is authorized in emergency or other

immediately effective proceedings and, given the short time available,

parties are directed to cooperate to ensure timely completion prior to

the hearing. Discovery requests shall be served as soon as possible

after initiation of the proceeding. Motions to compel production shall

be expeditiously filed, and will be promptly decided. Time limits for

compliance with discovery requests shall accommodate and not conflict

with the schedule set forth in this subpart. The provisions at

Sec. 821.19 shall apply, modified as necessary to reflect applicable

deadlines.

27. Section 821.56 is amended by revising paragraph (a) to read as

follows:

Sec. 821.56 Hearing and initial decision.

(a) Notice of hearing. Immediately upon notification by the

Administrator to the Board, and in no case later than 5 days after

receiving notice from the Administrator that an emergency exists or

that safety in air commerce or air transportation requires the

immediate effectiveness of an order, the Board shall set, and notify

the parties of, the date and place for hearing. The hearing shall be

set for a date no later than 25 days after service of the complaint. To

the extent not inconsistent with this section, the provisions of

Sec. 821.37(a) also apply.

* * * * *

28. Section 821.57 is amended by revising paragraphs (b) and (c) to

read as follows:

Sec. 821.57 Procedure on appeal.

* * * * *

(b) Briefs and oral argument. Unless otherwise authorized by the

Board, all briefs in emergency cases shall be served via overnight

delivery or facsimile confirmed by first class mail. Within 5 days

after the filing of the notice of appeal, the appellant shall file a

brief with the Board and serve a copy on the other parties. Within 7

days after service of the appeal brief, a reply brief may be filed,

with copies served (as provided above) on other parties. The briefs

shall comply with the requirements of Sec. 821.48 (b) through (g).

Appeals may be dismissed by the Board on its own initiative or on

motion of a party, notably in cases where a party fails to perfect the

notice of appeal by filing a timely brief. When a request for oral

argument is granted, the Board will give notice of such argument.

(c) Issues on appeal. The provisions of Sec. 821.49 shall apply to

issues on appeal. However, the Board may upon its own initiative raise

any issue, the resolution of which it deems important to a proper

disposition of the proceeding. If necessary or appropriate, the parties

shall be afforded a reasonable opportunity to comment.

* * * * *

29. Section 821.63 is amended by revising paragraph (b) to read as

follows:

Sec. 821.63 Requirements to show cause and imposition of sanction.

* * * * *

(b) The Board may, to the extent consistent with the interests of

justice and the policy of the underlying statutes it administers,

consider a violation of this subpart sufficient grounds for a decision

adverse to a party who has knowingly committed or knowingly caused a

violation to occur. Alternatively, the Board may impose sanction,

including suspension of the privilege of practice before the Board, on

the party's attorney or representative, where an infraction has been

committed by that attorney or representative and penalizing the party

represented is not in the interest of justice.

30. Section 821.64 is revised 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 section 1006 of the Act (49 U.S.C. 46110) and

section 304(d) of the Independent Safety Board Act of 1974 (49 U.S.C.

1153) by filing a petition for review with the appropriate United

States court of appeals within 60 days of the date of entry (service

date) of the Board's order. Under the Federal Aviation Act, as amended,

any party may appeal the Board's decision. The Board itself does not

typically participate in the judicial review of its action. In matters

appealed by the FAA, respondents should anticipate the need to make

their own defense.

(b) Stay pending judicial review. No petition for stay pending

judicial review will be entertained if it is received by the Board

after the effective date of the Board's order. If a stay action is to

be timely, any petition must be filed sufficiently in advance of the

effective date of the Board's order to allow for the possibility of a

reply and to allow for Board review.

Issued in Washington, DC on this 8th day of November, 1994.

John K. Lauber,

Member.

Member VOGT Filed the Following Concurring Statement

I continue to believe, for the reasons expressed in my

concurrence in Administrator v. Heimerl & Forrest, NTSB Order EA-

4134 (April 12, 1994), that the Board's service rule at

Sec. 821.8(e) should be amended to eliminate reliance on the date of

the certificate of service when calculating the date of service.

[FR Doc. 94-28074 Filed 11-14-94; 8:45 am]

BILLING CODE 7533-01-P