October 1, 2012
By John S. Yodice
The pilot’s bill of rights legislation is intended to provide balance to what has sometimes become heavy-handed FAA enforcement of the FARs, and to improve the NTSB appeals process that tilts mostly in favor of the FAA. We can expect very soon FAA and NTSB notices, rulemaking, and other actions to implement it. In the meantime, here is my digest of the new law, with apologies for abbreviated treatment for space.
Pilots have a right of appeal to the NTSB if the FAA suspends or revokes a pilot or medical certificate, or denies one. Historically, these appeals have been more informal than court proceedings. The informality frequently favors FAA attorneys who routinely practice before the NTSB, as opposed to private attorneys who are trained and experienced in the more formal court proceedings. The new law now requires that NTSB proceedings be conducted “to the extent practicable” in accordance with the more formal, and fair, Federal Rules of Civil Procedure and the Federal Rules of Evidence that apply in the federal courts.
The FAA administrator is now required to provide “timely, written notification to an individual who is the subject of an FAA investigation,” although it remains to be seen how the FAA will interpret the exception that allows the FAA administrator to delay timely notification if he or she determines that such notification may threaten the integrity of the investigation. Curing a past abuse, the required notification must now warn the individual that any response to the notification may be used in evidence against the individual, that a response is not required, and that no action or adverse inference can be taken against the individual for not responding to a notification of an investigation. Similarly curing a past problem, the results of the FAA’s investigation must be “timely” made available to the individual, including access to air traffic data of relevant air traffic communications tapes, radar information, ATC controller statements, flight data, investigative reports, and any other data that would be helpful to the individual. The access to ATC data cures the problem of Lockheed Martin’s (the private contractor operating the FAA flight service stations) refusal to provide air traffic data to individuals under FAA investigation on the basis that Lockheed Martin is not the government and not bound by the Freedom of Information Act. Now an individual is entitled to any air traffic data from a “government contractor that provides operational services to the FAA, including control towers and flight service stations.” And, unless an emergency exists, the FAA administrator may not proceed against an individual during the 30-day period from the date on which the air traffic data is made available to the individual.
The NTSB is no longer statutorily bound by FAA legal interpretations that frequently are not made known to the pilot community by rulemaking or the publication of notices. The NTSB is no longer bound by the FAA sanction guidance table, giving more sanction discretion to the more objective NTSB law judges. And to provide more oversight of the fairness of the NTSB, the new law provides for more judicial review by the courts of NTSB decisions upholding FAA certificate suspensions, revocations, or denials against pilots.
The FAA is now required to begin a Notice to Airmen Improvement Program comprised of private sector groups that will advise the FAA administrator on how to improve the system. The goals of the program are to decrease the volume of notams, make them more specific and relevant, and easily searchable—allowing pilots to prioritize critical flight safety information from other airspace system information.
The Comptroller General of the United States is to initiate an assessment of the FAA’s medical certification process and the associated medical standards and forms. The Comptroller General must submit a report to Congress of the assessment. No later than one year after the report, the FAA must take appropriate action to respond to the report. The law imposes on the FAA newly defined goals for the medical certification process, including an improved medical application form that provides a minimum amount of misinterpretation and mistaken responses (that had been a problem), and avoids unnecessary allegations of intentionally falsified answers (that had been a problem), while providing an appropriate and fair evaluation of an individual’s qualifications. The FAA is to consult with industry experts, industry associations, and others in meeting these goals and the assessment.
Thanks for this new law go to Sen. James M. Inhofe (R-Okla.) and Rep. Sam Graves (R-Mo.) and their respective office staffs, and to the members of the General Aviation Caucuses in both the House and the Senate on both sides of the aisles, who supported it.
Legal counselor John S. Yodice is a commercial pilot and flight instructor who owns and flies a Cessna 310.
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