The ’s (NTSB) proposal to alter the ’s enforcement appeal process is receiving mixed reviews, with industry groups believing the rulemaking does not go far enough to provide due process and the FAA saying it would impose costly discovery requirements.
The notice of proposed rulemaking (NPRM), released in February, would make three basic changes to procedures used in appealing FAA enforcement actions to the NTSB. One change would facilitate a gradual move to an electronic filing system. Another would require FAA to furnish certain “releasable information” so the accused would have a full understanding of the enforcement action.
The third change would increase the information the NTSB may review during an appeal of an emergency status of a certificate revocation.
But the most controversial aspect of the NPRM involves a decision by the NTSB to retain a basic assumption it relies on during a five-day appeal of an “emergency” status of a certificate action. For the five-day emergency status appeal only, NTSB assumes the facts presented by FAA for the certificate action are true.
NTSB had considered dropping the assumption-of-truth standard for an emergency status review, but opted to keep it, saying the facts surrounding an action are vetted during a full appeal of a certificate action.
This move, however, has drawn protests from industry groups, which believe it unfairly tilts the appeal in favor of FAA. In comments to the NPRM, the Aircraft Owners and Pilots Association (AOPA) says it “remains perplexed as to why this type of review does not lend itself to evidentiary proof.”
AOPA says it is mindful of time constraints surrounding an appeal of an emergency status, “but that should not be the basis to undermine meaningful review.”
The National Air Transportation Association (NATA) and National Business Aviation Association (NBAA) question whether there is a statutory basis requiring an administrative law judge to assume the facts to be true. “The requirement was created by the NTSB and the NTSB alone, and it is fully within the power of the NTSB to change it,” the associations say, adding “It is fundamentally unfair to accord either party’s presumption that what they allege in their pleadings is true.”
NATA and NBAA believe that FAA should have emergency powers to protect public safety, but there should be the ability to seek a meaningful, impartial review of a decision to take an emergency action. “There is no mistaking that respondents are substantially harmed when the FAA takes emergency actions against them,” they say. “As a matter of due process and good government, it is absolutely imperative that the agency actions be reviewable in a meaningful way.”
The Transport Workers Union of America (TWU) echoes these sentiments, saying the current practice “does not give adequate weight to the interests of the certificate holder.”
As for FAA, it had previously called the assumption of truth appropriate for an emergency status review. The agency, however, urges NTSB to clarify its proposal to ensure that additional information submitted for this review pertains only to the emergency status of the review and not to other aspects of the case.
The agency further opposes a proposed requirement that FAA furnish discovery information before an emergency review. “Less than one-third of the emergency orders issued by the administrator in the last three years were even appealed to the NTSB,” the agency says. “The FAA is at [a] loss to understand how the NTSB could impose a costly and burdensome requirement on the FAA when the board is unlikely to exercise its jurisdiction over roughly two-thirds of the emergency orders issued by the administrator.”
The agency questions the board’s authority to impose such a requirement.