Comment from Hays Hettinger, Carstens & Cahoon, LLP

The Interim Final Rule , I believe, is an excellent first step in implementing the PBR. The statutory mandate to apply the FRCP and FRE to all NTSB proceedings under 49 CFR Part 821, subparts C, D and F is difficult for the reasons the Administrative Conference of the US outlined at 51 FR 25642, July 16, 1986. Further, requiring the Board to apply these rules "to the extent practicable" in administrative hearings is problematic-see Standards of Evidence in Administrative Proceedings , Kuehnle, 49 N.Y.L.Sch. L. Rev 829 {2005}. But I think you have begun the process correctly, with , of course, case law to follow. Particularly, this Rule precludes the application of FRCP that are obviously inapplicable, and requires the application of the FRE unless they are inconsistent with the APA, e.g. the Board believes ALJs must now exclude hearsay evidence unless an exception to the hearsay rule applies. I submit this is a correct but cautionary approach and aids the judges and counsel in dealing with these significant admentments.