From "Business & Commercial Aviation" February, 2011
Curbing the FAA’s Enforcement Overreach
A proposal by the NTSB could help level the field for FAA certificate holders accused of violating the FARs.
The NTSB recently took a first STEP that could provide FAA certificate holders a better chance of receiving a fair shake if they run afoul of FAA safety inspectors.
In an Advance Notice of Proposed Rulemaking (ANPRM) published just before Christmas, the NTSB said it is considering a change in the rules under which the agency's administrative law judges adjudicate appeals of "emergency" certificate suspensions or revocations by the FAA.
Nearly eight years ago, the NTSB adopted a final rule that provides: "Within five days after the Board's receipt of [a petition for review of the FAA’s emergency determination], the ... law judge ... shall dispose of the petition by written order, and, in so doing, shall consider whether, based on the acts and omissions alleged in the administrator's order, and assuming the truth of such factual allegations, the administrator's emergency determination was appropriate under the circumstances, given the potential threat to aviation safety. . ."
In the new ANPRM, the NTSB said it recently received requests from outside organizations to further alter the standard of review for emergency determinations. "In particular, parties have asked the NTSB to consider removing the language of Section 821.54(e) that provides the law judge should assume that the acts and omissions alleged in the FAA’s emergency order are true."
In non-emergency cases, FAA certificate holders can continue to exercise the privileges of the affected certificate while appealing the proposed suspension or revocation to an NTSB administrative law judge (ALJ). That means they can continue to fly or operate their business while hiring legal counsel and attempting to get violation notices reversed and proposed penalties overturned, or modified. If confronted with an unfavorable ruling by the ALJ, the certificate holder can appeal that decision to the full NTSB. The entire process, which can stretch out for months, provides an opportunity for certificate holders to make their case while retaining their certificates until the matter has been fully adjudicated.
But, if the FAA inspector decides the violation constitutes an "emergency," the certificate holder faces an almost impossible task to retain his certificate. First, since the FAA is presumed to be acting to protect air safety, its suspension or revocation order is effective immediately. That means the certificate holder is out of business during the appeals process. Five days whiz past like 5 min. when the feds are on your case and you're trying to produce documents and hire an attorney. And since NTSB law judges currently are required to assume the acts and omissions alleged by the FAA are true, the deck is stacked against the certificate holder from the get-go.
NATA President Jim Coyne feels the changes proposed in the ANPRM are long overdue because of due process concerns that the current standard raises. "It's just a fundamental fairness issue for us when anyone in government comes down on [a certificate holder] and has this overwhelming power to put you out of business in a heartbeat," Coyne said.
Aviation practitioners have complained for years that FAA inspectors and attorneys were running roughshod over certificate holders, imposing penalties that were disproportionate to the types of violations found. An egregious example of this tendency was the FAA’s prosecution of air ambulance operator Air Trek Inc. of Punta Gorda, Fla. After a four-day inspection of the company's facilities and records in May 2008, FAA officials filed a lengthy list of allegations and issued an emergency revocation of its FAR Part 135 operating certificate on June 10, 2008.
Instead of rolling over and abandoning the family-owned business, Air Trek officials hired legal counsel and fought back. The original FAA complaint listed "allegations of 14 regulatory provisions and 38 factual allegation paragraphs within 10 counts," according to the NTSB.
But "Counsel for the [FAA] administrator almost immediately began having difficulties in presenting his case," the NTSB said. "At the outset of the nine-day hearing ... the administrator withdrew seven paragraphs in three counts and two regulatory violations. By the fourth day of the proceedings, the administrator had withdrawn half of the factual allegations, six counts and eight FAR violations." In the end, the ALJ upheld only three FAR violations against the company, a ruling upheld by the full NTSB when the FAA appealed the ALJ's ruling.
The determination shown by Air Trek officials in spending hundreds of thousands of dollars to fight the FAA allegations and get their operating certificate reinstated is the exception, Coyne said, observing that most such cases involve "citizens and small businesses who are hopelessly outgunned [by the government] most of the time." The current system "is an abuse of power if there are no checks and balances," Coyne said, because it denies certificate holders "the fundamental right we give all defendants in our legal system - the assumption that they're innocent until proven guilty."
Comments on the ANPRM, which also solicits suggestions for changes to the NTSB's rules governing the discovery process and exchanges of information in air safety enforcement proceedings, are due Feb. 22. Procedures for filing comments can be found on the NTSB website under 'Press Releases and Advisories," by accessing a Dec. 22 press release with a link to the rulemaking notice. If you think that the current appeals process for certificate actions is flawed, this is your chance to weigh in and suggest ways to make it better ... because you never know when FAA inspectors might come knocking on your door asking for five years of paperwork.