New NTSB NPRM

TMetzinger

TMetzinger

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NTSB PRESS RELEASE
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National Transportation Safety Board
Washington, DC 20594

FOR IMMEDIATE RELEASE: December 22, 2010
SB-10-49

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NTSB REQUESTING COMMENTS ON PROPOSED PROCEDURAL RULES
FOR AVIATION CERTIFICATE ENFORCEMENT CASES

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The NTSB has issued an Advance Notice of Proposed Rulemaking
(ANPRM) seeking comments from the public regarding
amendments to its procedural rules dealing with review of
Federal Aviation Administration (FAA) certificate actions
and its rules concerning applications for fees and expenses
under the Equal Access to Justice Act.

The NTSB listed three main reasons for its undertaking a
review of 49 CFR parts 821 and 826: (1) to respond to
parties' suggestions for changing the rules; (2) to update
rules that may be outdated; and (3) to modernize the rules
to accommodate prospective electronic filing and document
availability in case dockets.

The ANPRM indicates that certain parties have approached the
NTSB concerning emergency certificate actions, which involve
cases in which the FAA issues an immediately effective order
revoking or suspending a certificate. In such cases, the
NTSB's procedural rules allow a party to challenge the
emergency status of the case, and provide an expedited
timeline for doing so. The rules currently require the
NTSB's administrative law judges to "consider whether, based
on the acts and omissions alleged in the Administrator's
order, and assuming the truth of such factual allegations,
the Administrator's emergency determination was appropriate
under the circumstances." The ANPRM invites public comments
concerning this standard of review, as well as 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. The
ANPRM further invites comments concerning whether parties
should have an opportunity for another level of appeal to
challenge the emergency status determination.

In addition, the ANPRM also solicits comments concerning
electronic filing of documents for aviation certificate
cases, and requests specific consideration as to whether
such electronic filing is feasible for individuals who opt
not to retain an attorney. The ANPRM further seeks feedback
concerning whether any outdated information exists in the
current procedural rules.

The 60-day comment period for the ANPRM concludes on
February 22, 2011. The ANPRM may be accessed at the
following link:
http://origin.www.gpo.gov/fdsys/pkg/FR-2010-12-22/pdf/2010-32056.pdf.
 
In non-legalese this says what?
 
EdFred said:
In non-legalese this says what?
Click to expand...

I'm not sure at all, but I think they are saying that the FAA used to have authority to do emergency certificate suspensions, revocations, and the like if the administrator judged the pilot to be too dangerous to be allowed to fly. Said pilot would be unable to fly until they went through the judicial system and proved otherwise.

But it appears the law changed somehow that allows or requires the NTSB judges to review such emergency actions by the FAA and those judges would have the real authority to deny or approve such emergency actions. The FAA would actually have to present facts to the NTSB and prove its case; not just act on their own discretion. Seems there are some past cases where past emergency revocations have been judged to be abuses of the FAA's authorized discretion.

But some people said no, the NTSB judges can't review the FAA emergency actions because they aren't judicial actions but administrative ones. At least I think that is what they are saying.

As far as I can tell, this is a dust-up where one group wants to use the NTSB to reign in the FAA's wide discretion in these kinds of actions ("arbitrary and capricious.") Or perhaps it boils down to whether the accused gets their day in court before any action at all can be taken against their certificate.
 
Jim Logajan said:
I'm not sure at all, but I think they are saying that the FAA used to have authority to do emergency certificate suspensions, revocations, and the like if the administrator judged the pilot to be too dangerous to be allowed to fly. Said pilot would be unable to fly until they went through the judicial system and proved otherwise.
Click to expand...
That was true, and still is true.

But it appears the law changed somehow that allows or requires the NTSB judges to review such emergency actions by the FAA and those judges would have the real authority to deny or approve such emergency actions.
Click to expand...
That is not accurate. First, there are no "NTSB judges." The NTSB is an independent board comprised of five Presidential appointees. The "judges" are Administrative Law Judges (ALJ's) of the Department of Transportation, and are not part of the emergency revocation appeal process. There is no requirement or even permission for the NTSB to review emergency revocations other than on appeal by the pilot involved. Here's how it actually works:

When the FAA hears of a situation, it is investigated by the FSDO which catches the case. If they feel an emergency revocation is warranted, the request goes to HQ, and if the Administrator agrees, the order is issued. Within 48 hours of receiving an emergency revocation order, the pilot can request a hearing before the NTSB on the "emergency" nature of the revocation. The NTSB will then have 48 hours to hear arguments from both sides, and within five days must determine if a true emergency exists. While the NTSB reviews the case to determine whether aviation safety requires immediate action, the revocation remains in effect and the pilot loses his ability to fly. If the NTSB determines that no emergency exists, then the certificate would be returned and the airman could continue flying while the FAA pursued their revocation case against him in an expedited appeal process. If NTSB decides an emergency does exist, then the revocation remains in effect and the pilot cannot fly while the case is adjudicated.
 
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Ron Levy said:
First, there are no "NTSB judges." The NTSB is an independent board comprised of five Presidential appointees. The "judges" are Administrative Law Judges (ALJ's) of the Department of Transportation, and are not part of the emergency revocation appeal process. There is no requirement or even permission for the NTSB to review emergency revocations other than on appeal by the pilot involved. Here's how it actually works:

When the FAA hears of a situation, it is investigated by the FSDO which catches the case. If they feel an emergency revocation is warranted, the request goes to HQ, and if the Administrator agrees, the order is issued. Within 48 hours of receiving an emergency revocation order, the pilot can request a hearing before the NTSB on the "emergency" nature of the revocation. The NTSB will then have 48 hours to hear arguments from both sides, and within five days must determine if a true emergency exists. While the NTSB reviews the case to determine whether aviation safety requires immediate action, the revocation remains in effect and the pilot loses his ability to fly. If the NTSB determines that no emergency exists, then the certificate would be returned and the airman could continue flying while the FAA pursued their revocation case against him in an expedited appeal process. If NTSB decides an emergency does exist, then the revocation remains in effect and the pilot cannot fly while the case is adjudicated.
Click to expand...

Thanks for the clarification. Question though: does this procedure apply to any kind of certificate? Such as aircraft or air carrier? I got the impression from the linked-to PDF that some of the case law referred to actions against air carriers (e.g. Nevada Airlines.) I could see how an airline being immediately grounded even for just 2 to 5 days could really impact its finances.
 
Jim Logajan said:
Thanks for the clarification. Question though: does this procedure apply to any kind of certificate? Such as aircraft or air carrier? I got the impression from the linked-to PDF that some of the case law referred to actions against air carriers (e.g. Nevada Airlines.) I could see how an airline being immediately grounded even for just 2 to 5 days could really impact its finances.
Click to expand...
It does, but the FAA normally uses civil penalties rather than certificate actions against commercial operators unless either civil penalties have failed to correct the situation or they feel the violations are exceptionally egregious, and that further operations must be prevented. Here are two examples of an emergency revocation of a commercial operator's certificate.
http://www.ntsb.gov/alj/alj/O_n_O/docs/aviation/5461.PDF
http://www.ntsb.gov/alj/alj/O_n_O/docs/aviation/5507.PDF
 
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