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NTSB Maintains 'Assumption of Truth' Standard in Ruling on Pilot Enforcement Actions
November 15, 2012
In a final ruling effective Nov. 15, the National Transportation Safety Board (NTSB) declined to make substantial changes to its oversight role of emergency enforcement actions taken against pilots by the Federal Aviation Administration (FAA).
The ruling amended the board’s Rules of Practice in Air Safety Proceedings, which since 2003 have governed its policies when considering appeals of FAA enforcement actions against pilots.
Among the requirements under those rules is that NTSB administrative law judges reviewing emergency actions by the FAA must assume the allegations presented by the agency to support the emergency action determination are correct and accurate. Opponents of the NTSB policy counter that such assumptions make it difficult for the accused party to dispute the FAA’s allegations.
Despite substantial criticism of the practice by a coalition of aviation groups, including NBAA, the board reiterated that the expedited timeframe mandated for emergency actions to be completed makes the assumption of truth standard necessary.
Doug Carr, NBAA vice president, safety, security, operations & regulation, said the Association was "disappointed" in the Board's position, calling the assumption of truth requirement "a practice of biased judicial review.”
"NBAA and its Members have seen examples of perceived 'misuse' of this government-benefitting provision that provides practically no opportunity for a certificate holder to present additional information that may materially alter whether an emergency safety issue does or does not, in fact, exist," he said.
"Many of NBAA's Members are small businesses without the resources necessary to sustain a lengthy emergency shutdown while the courts determine the factual elements of the case," Carr added. "While we support the FAA's ability to exercise their ability to shut down operations with a clear and present danger to aviation safety, there have been numerous cases where a traditional, non-emergency procedure should have prevailed. As a result, unfortunately, several companies with outstanding safety records no longer exist."
The NTSB acknowledged this will not be the end of discussion on the topic, stating it expects to "consider this analysis anew in light of any petition for rulemaking that includes novel suggestions or points not previously articulated." The board did make minor changes to other aspects of the review policy, including allowing documents in emergency action cases to be filed electronically – which should provide some additional time for both sides to determine the merits of a case.
"We will continue to monitor the FAA's use of their emergency revocation authority while working with the NTSB to ensure that all certificate holders have access to a fair review of the facts," Carr concluded.
In a separate filing, the NTSB requested public comment on an interim rule that would make certain administrative changes to the emergency enforcement action review process, as required under the Pilot's Bill of Rights passed in July.
That legislation requires that pilots be provided with timely notice of any pending enforcement actions, and that the FAA grant pilots access to all relevant information to be used against them, including notice to airmen data and air traffic control communications.
In a substantial change from past policies, the notice of proposed rulemaking (NPRM) proposes new requirements that would allow enforcement cases to be dismissed if the FAA does not provide sufficient access or time to review to that information.
The board will accept public comments on the NPRM through Dec. 17.