[Code of Federal Regulations]
[Title 49, Volume 5, Parts 400 to 999]
[Revised as of October 1, 1998]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR821]

[Page 1077-1082] 
                        TITLE 49--TRANSPORTATION
                              SAFETY BOARD
Subpart B--General Rules Applicable to Petitions for Review, Appeals to the Board, and Appeals From Initial Decisions

Sec. 821.6  Appearances and rights of witnesses.

    (a) Any party to a proceeding may appear and be heard in person or 
by attorney or other representative designated by him. No register of 
persons who may practice before the Board is maintained, and no 
application for admission to practice is required. Upon hearing, and for 
good cause shown, the Board may suspend or bar any person from 
practicing before it.
    (b) Any person appearing in person in any proceeding governed by 
this part, may be accompanied, represented, and advised by counsel and 
may be examined by his own counsel or representative.
    (c) Any person who submits data or evidence in a proceeding governed 
by this part, may by timely request procure a copy of any document 
submitted by him, or a copy of any transcript made of his testimony on 
payment of reasonable costs. Original documents or data or evidence may 
be retained by a party upon permission of the law judge or the Board, 
upon substitution of a copy therefor.
    (d) Any party to a proceeding who is represented by an attorney 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.

[40 FR 30243, July 17, 1975, as amended at 49 FR 28249, July 11, 1984; 
59 FR 59046, Nov. 15, 1994]

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 

[[Page 1078]]

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.
    (c) Form. Petitions for review or appeals to the Board and appeals 
from initial decisions may be in the form of a letter to the Board 
signed by the petitioner or the party appealing and shall be typewritten 
or in legible handwriting.
    (d) Contents. Each document shall contain a concise and complete 
statement of the facts relied upon and the relief sought.
    (e) Subscription. The original of every document filed shall be 
signed by the person filing it or his duly authorized representative.
    (f) Designation of person to receive service. The initial document 
filed shall state on the first page the name and post office address of 
the person or persons who may be served with documents in the 
    (g) Motions, requests, and documents. All motions, requests, and 
documents in connection with petitions for review and appeals to the 
Board shall be filed with the chief law judge, until such time as he 
assigns a law judge to preside over the proceeding.

[40 FR 30243, July 17, 1975, as amended at 49 FR 28249, July 11, 1984; 
56 FR 56172, Nov. 1, 1991; 59 FR 59046, Nov. 15, 1994]

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______.

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 
    (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 

[[Page 1079]]

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).

[59 FR 59047, Nov. 15, 1994]

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.

[59 FR 59047, Nov. 15, 1994]

Sec. 821.10  Computation of time.

    In computing any period of time prescribed or allowed by this part, 
by notice or order of the Board or a law judge, or by any applicable 
statute, the date of the act, event, or default after which the 
designated period of time begins to run is not to be included in the 
computation. The last day of the period so computed is to be included 
unless it is a Saturday, Sunday, or legal holiday for the Board, in 
which event the period runs until the end of the next day which is 
neither a Saturday, Sunday, nor a legal holiday. Saturdays, Sundays, and 
legal holidays for the Board shall be computed in the calculation of 
time in all emergency cases under subpart I of this part and shall be 
counted in the computation of time in all nonemergency cases where the 
period of time involves 7 days or more.

[56 FR 56172, Nov. 1, 1991]

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.

[59 FR 59047, Nov. 15, 1994]

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.

[[Page 1080]]

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.

[59 FR 59047, Nov. 15, 1994]

Sec. 821.13  Waivers.

    Waivers of any rights provided by statute or regulation shall either 
be in writing, or by stipulation made at a hearing and entered into the 
record, and shall set forth their precise terms and conditions.

Sec. 821.14  Motions.

    (a) General. An application to the Board or to a law judge for an 
order or ruling not otherwise 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.
    (b) Form and contents. Unless made during a hearing, motions shall 
be made in writing, shall state with particularity the grounds for the 
relief sought, and the relief sought, and shall be accompanied by 
affidavits or other evidence relied upon. Motions introduced during 
hearings may be made orally on the record, unless the law judge directs 
    (c) Answers to motions. Except when a motion is made during a 
hearing, any party may file an answer in support of or in opposition to 
a motion, accompanied by such affidavits or other evidence as he desires 
to rely upon, provided that the answer is filed with 15 days after the 
motion has been served upon him, or such other period as the Board or a 
law judge may fix. Where a motion is made during a hearing, the answer 
and the ruling thereon may be made at the hearing, or orally or in 
writing within such time as the law judge may fix.
    (d) Oral argument; briefs. No oral argument will be heard on motions 
unless the Board or the law judge directs otherwise. Written memoranda 
or briefs may be filed with motions or answers to motions, stating the 
points and authorities relied upon in support of the positions taken.
    (e) Disposition of motions. Except as provided in paragraph (c) of 
this section for rulings on motions made at a hearing, the law judge 
shall pass upon all motions properly addressed to him, unless he finds 
that a prompt decision by the Board is essential to the proper conduct 
of the proceeding, in which case he may refer such motion to the Board 
for decision.
    (f) Effect of pendency of motions. Except as provided in 
Secs. 821.17(a) and 821.18, the filing or pendency of a motion shall not 
automatically alter or extend the time fixed in this part (or any 
extension granted thereunder) to take action by the parties.

[40 FR 30243, July 17, 1975, as amended at 54 FR 12203, Mar. 24, 1989; 
59 FR 59047, Nov. 15, 1994]

Sec. 821.15  Motion to disqualify a Board Member.

    A motion requesting a Board Member to disqualify himself shall be 
filed with the Board, supported by an affidavit setting forth grounds 
for disqualification. In nonemergency proceedings, where an appeal from 
an initial decision is filed, such motion shall be filed on or before 
the date on which the reply brief is due, pursuant to Sec. 821.48(d). In 
emergency proceedings, where a notice of appeal has been filed, such 
motion shall be filed on or before the date the reply brief is due, 
pursuant to Sec. 821.57(b). Failure to file a timely motion shall be 
deemed a waiver of any claim of disqualification. Application for leave 
to file an untimely motion may be made, accompanied by an affidavit 
setting forth in detail why the facts relied upon as grounds for 
disqualification were not known and could

[[Page 1081]]

not have been discovered with reasonable diligence within the prescribed 

Sec. 821.16  Appeals from law judge's interlocutory rulings and motions.

    Rulings of law judges on motions may not be appealed to the Board 
prior to its consideration of the entire proceeding, except in 
extraordinary circumstances and with the consent of the law judge who 
made the ruling. An appeal shall be disallowed unless the law judge 
finds, either on the record or in writing, that to allow such an appeal 
is necessary to prevent substantial detriment to the public interest or 
undue prejudice to any party. If an appeal is allowed, any party may 
file a brief with the Board within such time as the law judge directs. 
No oral argument will be heard unless the Board directs otherwise. The 
rulings of the law judge on motion may be reviewed by the Board in 
connection with its appellate action in the proceeding, irrespective of 
the filing of an appeal from the motion or any action taken thereon.

Sec. 821.17  Motion to dismiss and for judgment on the pleadings.

    (a) General. A motion to dismiss may be filed within the time 
limitation for filing an answer, except as otherwise provided in 
paragraph (d) of this section. If the motion is not granted in its 
entirety, the answer shall be filed within 10 days of service of the law 
judge's order on the motion.
    (b) Judgment on the pleadings. A party may file a motion for 
judgment on the pleadings where no answer has been filed or where there 
are no issues to be resolved.
    (c) Appeal of dismissal orders and grants of motions for judgment on 
the pleadings. When a law judge grants a motion for judgment on the 
pleadings or a motion to dismiss in lieu of an answer and terminates the 
proceeding without a hearing, an appeal of such order to the Board may 
be filed pursuant to the provisions of Sec. 821.47. When a law judge 
grants a motion to dismiss in part, Sec. 821.16 is applicable.
    (d) Motions to dismiss for lack of jurisdiction. A motion to dismiss 
on the ground that the Board lacks jurisdiction may be made at any time.

[49 FR 28249, July 11, 1984]

Sec. 821.18  Motion for more definite statement.

    (a) A party, in lieu of an answer, may file a motion requesting that 
the allegations in the complaint or the petition be made more definite 
and certain. The motion shall point out the defects complained of and 
the details desired. If the motion is granted and the law judge's order 
is not complied with within 15 days after notice, the law judge shall 
strike the allegation or allegations in any complaint or petition to 
which the motion is directed. If the motion is denied, the moving party 
shall file an answer within 10 days after the denial.
    (b) A party may file a motion to clarify an answer in the event that 
it fails to respond clearly either to the complaint or to the petition 
for review. Such a motion may be granted at the discretion of the law 

[49 FR 28249, July 11, 1984]

Sec. 821.19  Depositions and other discovery.

    (a) Initiation of discovery. After a petition for review or a 
complaint is filed, any party may take the testimony of any person, 
including a party, by deposition, upon oral examination or written 
questions, without seeking prior Board approval. Reasonable notice shall 
be given in writing to the other parties of record stating the name of 
the witness and the time and place of the taking of the deposition. A 
copy of any notice of deposition shall be served on the Office of 
Administrative Law Judges. In other respects, the taking of any 
deposition shall be in compliance with the provisions of section 1004 of 
the Act.
    (b) Exchange of information by parties. At any time before hearing, 
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

[[Page 1082]]

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.
    (c) Use of the Federal Rules of Civil Procedure. Those portions of 
the Federal Rules of Civil Procedure that pertain to depositions and 
discovery may be used as a general guide for discovery practice in 
proceedings before the Board where appropriate. The Federal Rules and 
the case law that construes them shall be considered by the Board and 
its law judges as instructive rather than controlling.
    (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.

[49 FR 28250, July 11, 1984, as amended at 59 FR 59047, Nov. 15, 1994]

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

    (a) Subpoenas. Subpoenas requiring the attendance of witnesses or 
the production of documentary or tangible evidence for the purpose of 
taking depositions or at a hearing may be issued by the chief law judge 
prior to the assignment of a law judge, or by the law judge to whom the 
case is assigned, upon application by any party. The application shall 
show the general relevance and reasonable scope of the evidence sought. 
Any person upon whom a subpoena is served may, within 7 days after 
service but in any event prior to the return date thereof, file with the 
chief law judge or the law judge, as the case may be, a motion to quash 
or modify the subpoena, and such filing shall stay the subpoena pending 
final action by the chief law judge or the law judge on the motion.
    (b) Witness fees. Witnesses shall be entitled to the same fees and 
mileage as are paid to witnesses in the courts of the United States. The 
fees shall be paid by the party at whose instance the witness is 
subpoenaed or appears. The Board may decline to process a proceeding 
further should a party fail to compensate a witness pursuant to this 
    (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.

[40 FR 30243, July 17, 1975, as amended at 59 FR 59048, Nov. 15, 1994]

Sec. 821.21  Official notice.

    Where the law judge or the Board intends to take official notice of 
a material fact not appearing in the evidence in the record, notice 
shall be given to all parties, who may within 10 days file a petition 
challenging such fact. Upon the filing of such petition, the party or 
parties shall be given reasonable opportunity to controvert the fact.