February 28, 2011
A request for basic fairness is at the heart of comments filed by NBAA in response to an Advance Notice of Proposed Rulemaking (ANPRM) regarding Rules of Practice in Air Safety Proceedings and Implementing the Equal Access to Justice Act of 1980, issued by the National Transportation Safety Board.
NBAA’s comments, which were filed Feb. 22, a day before the comment period closed, target what the association says is a National Transportation Safety Board (NTSB) rule that requires administrative law judges hearing appeals to emergency FAA certificate suspensions to accept as true all FAA allegations in the cases. The rule further bars the certificate holder from mounting any kind of challenge to the FAA allegations, or submitting evidence countering the charges.
NBAA has asked that NTSB judges be required to consider all the relevant facts in the cases, and not simply assume that the FAA’s allegations are true. NBAA also has challenged NTSB limits to the discovery process in these cases, claiming that “the expedited nature of the proceedings” gives the FAA an unfair advantage over certificate holders in preparing for cases. In its comments, NBAA said the rules of practice should be “modernized to accelerate the exchange of basic information” about these cases and eliminate time-consuming paper work.
NBAA also has asked NTSB to implement an electronic docket-management system to further expedite discovery and the overall case review process. Lastly, NBAA has requested an update to procedural rules governing claims made under the Equal Access to Justice Act of 1980.
NTSB issued the ANPRM in December 2010, recognizing that there may be issues surrounding appeals of FAA emergency certificate suspensions, said Doug Carr, NBAA Vice President of Safety, Security and Regulation.
“NBAA simply wants to bring fairness to the process,” Carr said. “We’re not suggesting the FAA should not have the authority to issue violations or issue emergency suspensions. What we are suggesting is that when the certificate holder chooses to appeal, that the process should have more balance.”
AIR 21 and Unintended Consequences
According to Carr, the problem began in 2000, when Congress passed the Wendell H. Ford Aviation and Investment Reform Act for the 21st Century – or AIR21 – which gave NTSB the authority to hear appeals of cases involving emergency revocation of FAA certificates. “Previously, those appeals went to local circuit courts or federal judges who were unfamiliar with aviation, so they would generally defer in matters of aviation safety to the FAA,” Carr said.
Paul Lange, of The Law Offices of Paul A. Lange, and the attorney representing NBAA’s interests in the ANPRM, said Congress intended for NTSB to give FAA emergency certificate suspensions a fair and balanced review.
“That was the intent, but in the end that did not occur,” Lange said. “The review ended up being limited to what the FAA chooses to write in its complaint.” That outcome occurred because the FAA and NTSB interpreted Congress’ ruling differently than the aviation community.
“The view of the aviation community is that the wording (of AIR 21) is just fine,” Lange said. “But, perhaps you need a sledge hammer to force the NTSB and FAA to actually acknowledge the plain meaning of the wording and what congressional intent was.”
What’s Next in the NTSB Review?
Carr said NTSB now will review the more than 300 comments received in response to the ANPRM. “Hopefully, (NTSB) will use them to guide its development of new rules that would apply in this situation,” he said.
Any new rules would be published in an actual Notice of Proposed Rulemaking (NPRM). At that point, NBAA and other aviation interests have the right to appeal those changes.
While the process could take a year or more, Carr said NBAA remains committed to correcting what it and others in aviation say is a potentially unconstitutional NTSB ruling. “Our goal is to bring that fairness to the appeal process that I think most folks would agree does not exist today,” he said.