April 12, 2012
By Dan Namowitz
The FAA should be required to disclose its evidence to a respondent when seeking a suspension or revocation of a pilot certificate—and if it fails to do so, the NTSB should be empowered to dismiss or delay the FAA’s action before the pilot’s livelihood or reputation is harmed, AOPA said in a regulatory filing. It is a matter of fairness that an airman knows what evidence the FAA is using to take action, AOPA said.
AOPA Counsel Kathleen A. Yodice stated the association’s position April 5 in formal comments on an NTSB notice of proposed rulemaking that would revise its Rules of Practice in Air Safety Proceedings. The NTSB filed its notice of the proposed revisions Feb. 9 after assessing responses to an advance notice of proposed rulemaking in which it described its goals for the reforms. AOPA also submitted comments on the ANPRM.
Addressing the NPRM, Yodice urged that a proposed rule requiring the FAA to disclose releasable portions of its enforcement investigative reports (EIRs) to pilots who are targeted for emergency certificate revocation also be applied to nonemergency cases.
Access to the information “is no less important” in those cases, and provides the respondent pilot with a “full and fair opportunity to be heard prior to the FAA taking the action it proposes,” as provided by statute, she wrote.
AOPA supported proposed rules that would give administrative law judges discretion to decide whether to dismiss a case with or without prejudice, when the FAA’s procedural failure should not be used to justify an absolute bar to revoking the certificate of an unqualified pilot. But Yodice expressed concern about the impact of timing on pilots involved in the cases in limiting the judge’s authority to sanction the FAA for its failure only after a complaint was filed.
In an emergency case, “by the time an FAA complaint may be filed in a case, which may be almost two weeks later, the damage done to a respondent’s livelihood and reputation has been done, the fairness intentions of providing that respondent with information to begin to fairly and fully defend against the FAA’s allegation have passed, and the intent of encouraging the FAA to provide the information is lost,” she wrote. Instead, AOPA suggested that the judge also have authority to delay any emergency FAA action, allowing the pilot to continue flying.
AOPA supported an incremental approach to the electronic filing of case documents, noting that “a significant number” of members have limited computer access.
Approximately 100,000 members participate in the AOPA Legal Services Plan.
Dan Namowitz is an aviation writer and flight instructor.
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