November 19, 2012
The National Transportation Safety Board (NTSB) denied the request of several general aviation groups to abandon its practice of assuming that FAA’s allegations are true for initial emergency enforcement appeals. But the safety board is moving forward with new protections mandated by Sen. Jim Inhofe’s (R-Okla.) Pilot’s Bill of Rights.
The agency has released two separate rulemakings – a final rule that took effect late last week to enable electronic filing for certain documents and make certain other changes in the FAA enforcement appeals process; and an interim final rule that puts into place requirements in the Pilot’s Bill of Rights that was enacted into law Aug. 3. NTSB is accepting comments on the interim final rule through Dec. 17.
When proposed in February, the rule permitting electronic filing had drawn appeals from the general aviation community for the NTSB to drop its automatic assumption of the truth of the allegations in an enforcement action in certain appeals cases (those focusing on whether FAA properly used emergency procedures to revoke a certificate).
NTSB concedes that the groups feel that an assumption of truth of the allegations is fundamentally unfair. But in the final rule, NTSB reiterates its belief that the challenge of an emergency determination “should not be an opportunity to contest the factual allegations underlying the certificate action.”
NTSB’s truth standard is simply a result of time constraints, the agency says. “If the NTSB held a hearing for every petition challenging the emergency status of a case, it could not fulfill its obligation to rule on the merits of the case within the statutorily required 60-day time frame,” the agency says. “The NTSB currently does not have the resources to hold hearings on petitions contesting emergency determinations, given the expedited time frame.” The agency says it may be willing to revisit the issue in the future.
The National Business Aviation Association (NBAA) – among the groups pushing for the change in the assumption of truth – expressed disappointed that the NTSB chose to retain what the association calls “a practice of biased review.”
“NBAA and its members have seen examples of perceived ‘misuse’ of this government-benefitting provision that provides practically no opportunity for a certificate holder to present additional information that may materially alter whether an emergency safety issue does or does not, in fact, exist,” says Doug Carr, NBAA vice president, safety, security, operations & regulation. “Many of NBAA’s members are small businesses without the resources necessary to sustain a lengthy emergency shutdown while the courts determine the factual elements of the case.”
The new rule also does not including NTSB’s original proposal to require FAA to provide a copy of the releasable portions of its enforcement investigation report (EIR) by the date of an emergency order. NTSB eliminated that section in the final rule since the recently enacted Pilot’s Bill of Right made the same mandate, but includes the EIR requirements in the interim final rule.
While NTSB did not reverse course on the truth assumption, its other rule, the interim final rule, expands pilots’ access to information in enforcement cases. Under the rule, says Aircraft Owners and Pilots Association Counsel Kathleen Yodice, an enforcement case could be dropped “if the FAA fails to comply with provisions requirement that the FAA give an airman access to certain data during an investigation.”