In an Advance Notice of Proposed Rulemaking published today, the National Transportation Safety Board is requesting comments regarding amendments to its rules of procedure for the NTSB’s review of FAA certificate actions, as well as rules of procedure concerning applications for fees and expenses under the Equal Access to Justice Act (EAJA).
With respect to its rules of procedure, the Board is requesting comments on the following:
- Standard for NTSB Review of FAA Emergency Determinations. Whether the Board should alter the standard of review for emergency determinations by removing the language of Section 821.54(e) that provides that the administrative law judge reviewing an FAA emergency determination should assume that the acts and omissions alleged in the FAA’s emergency order are true. The Board would also like comments on other aspects of the emergency review process, such as whether a hearing should occur to allow parties to provide evidence concerning whether the case should be treated as an emergency and whether parties should have an opportunity for another level of appeal to challenge the emergency status determination.
- Discovery and Exchanges of Information by the Parties. Whether the Board should amend its rules governing the discovery process and exchanges of information. For example, such changes could require administrative law judges to issue pre-hearing orders or they could impose specific sanctions for a party’s failure to provide information requested in discovery. In addition to these issues, the Board would also like to receive general concerns regarding pre-hearing exchanges of information by the parties.
- Electronic Filing of Documents. The Board intends to create an electronic filing system for cases involving certificate actions at some point in the future and would like ideas and suggestions on how this might be implemented and how parties acting pro se might avail themselves of the electronic filing process.
With respect to EAJA rules and procedures, the Board plans to update Section 826.40, as well as any other sections within Part 826 that may also be inaccurate. The Board would like comments regarding its proposed amendment and any other proposed amendments to Part 826. Comments should specify the section needing amendment, and provide clear recommendations of the proposed changes along with supporting data and rationale.
However, since 5.U.S.C. 504 governs the applicability of EAJA, the Board warns that it will not attempt to expand this applicability in amending Part 826 nor will it adopt suggestions that are contrary to the Federal Courts of Appeals’ interpretations of EAJA. The Board also proclaims that it “does not intend to enact proposed provisions that it believes would not be helpful, would impose an undue burden on the FAA or the EAJA applicant, or would be contrary to any law, regulation, or executive order.”
Comments are due on or before February 22, 2011. Additionally, if you have questions or would like additional information regarding the proposed amendments, you may contact the NTSB’s general counsel, Gary Halbert, at (202) 314-6080.
This is a great opportunity to try and level the playing field, although realistically I don’t know that it will ever be “level.” However, the proposed amendments will certainly be favorable for certificate holders. Additionally, this is a chance to suggest amendments to other rules that would make the process easier and more fair for certificate holders. I encourage all attorneys practicing before the Board and anyone else with an interest in a fair appeal process for certificate actions to submit their comments and suggested amendments by the due date.