Industry advocates are continuing their push to convince the (NTSB) to overturn its approach to enforcement appeals.
In a final rule released in October, NTSB denied the requests of industry advocates and other interested parties to drop its “assumption of truth” used in reviews of anemergency certificate action.
In reviews of whether FAA appropriately used emergency procedures for an enforcement action, the safety board assumes that FAA’s allegations are true.
The NTSB argues that it does not have the time nor the resources to fully vet the allegations for appeals of the emergency nature of a certificate action. The agency adds that those appeals are not meant to determine if the enforcement was appropriate, only whether it needed to be taken on an emergency basis.
But despite the NTSB’s ruling in October, industry groups continue to urge the safety board to revisit the issue, calling the assumption inherently unfair and tilted in the government’s favor.
The advocates are using the opportunity to restate their case in comments on an interim final rule that the safety board also released in October. The interim final rule implements certain aspects of the Pilot’s Bill of Rights (PBOR) that Congress enacted last summer.
The National Business Aviation Association (NBAA) and the National Air Transportation Association (NATA), which submitted separate but similar comments, tell the safety board they believe the NTSB’s refusal to drop its assumption of truth standard goes against congressional intent, as well as proper administrative procedures. They also believe part of the intent of the PBOR is for fair treatment in enforcement actions. The associations further say the bill seeks to balance appeals so that there is not deference to FAA.
“Forcing NTSB law judges to assume that the FAA’s factual allegations are true is … contrary to all notions of due process,” NBAA and NATA say. With that assumption, FAA can fashion any complaint in a manner that it would prevail in any challenge to its emergency determination, the association contends. “The overwhelming percentage of cases decided by the board in favor of the FAA … proves the point,” the associations add.
They acknowledge NTSB’s concerns about its resources and the shortened 60-day time frame involved in emergency appeals. But, NBAA and NATA say, “a lack of resources is an inappropriate and improper excuse to deny fair and meaningful review of an FAA decision.”
NBAA concedes that the safety board faces a number of emergency certificate actions. This is because an FAA policy change dramatically increased the number of certificate actions to be initiated as an emergency, the association says.
The associations also dispute NTSB arguments that essentially say FAA’s emergency determination can always be trusted. NTSB bases those arguments on an approach used in federal courts for preliminary injunctions and temporary restraining orders. NBAA and NATA agree that in these cases, the courts do not have time for a trial on the merits of the case. But, they add, “The board fails to acknowledge that federal courts allow evidence to be presented, and evaluate both sides of evidence – often in an abbreviated evidentiary hearing.”