The (NTSB) is proposing to alter the review procedures for enforcement applications and to facilitate electronic filings. The notice of proposed rulemaking (NPRM), published in today’s Federal Register, follows a December 2010 advanced NPRM that covered the standard of review for emergency determinations, discovery and information exchange, and electronic filing of documents.
In the ANPRM, NTSB suggests making slight changes to the information the agency will consider as part of that review. But the NPRM does not go as far as industry had hoped.
The NPRM questioned whether the agency should change its standard that it must consider FAA’s allegations against a party to be true for the purposes of a five-day review of the emergency status of a revocation. In the past, NTSB had concluded that the right to challenge an emergency determination should not be an opportunity to contest the factual allegations surrounding the revocation. The vetting of the allegations themselves is reserved for the full 60-day appeal process of the certificate action.
But several parties had asked NTSB to omit the standard for the appeal in the emergency review process, saying the standard tilts against the accused parties. These requests spurred, in part, the ANPRM, and the discussion of this standard in the ANPRM drew the most comments.
Some commenters believed the current standards are appropriate because FAA must use its authority to issue emergency actions in cases. FAA counsel argues that the emergency determination is not a conclusion of the evidence, but rather the need for immediate action for safety purposes. FAA further argues that the five-day review process for an emergency determination is not enough time to conduct the preliminary fact-finding to consider whether the facts are true.
But others called the assumption of truth fundamentally unfair, saying it is too deferential to FAA, NTSB says. Commenters encouraged NTSB to adopt standards similar to those used in temporary restraining orders and preliminary injunctions, which can show a likelihood of success of the merits of the case. Others urged the NTSB to permit the consideration of facts not included in the complaint, such as how long FAA was aware of facts in its complaint before it issued an emergency evocation.
NTSB notes that FAA takes actions it believes are necessary for aviation safety, and that makes it different from other civil proceedings. But the agency also says it is “mindful of the viewpoints expressed in some comments that the standard of review is unfair and may result in irrevocable harm to certificate holders.” The agency proposes to retain the standard of the assumption of truth of the alleged facts, but also accept information relevant to the emergency determination.
The agency also is proposing to require that FAA provide “certain releasable information” for the accused to have a full understanding of the basis of FAA’s action. This may reduce the need for discovery, which is particularly important in the compressed time frame surrounding emergency cases. This proposal came in response to NTSB’s question in the ANPRM on whether the agency should routinely issue prehearing orders to govern discovery. As far as the electronic filing system, NTSB’s primary concern surrounds accommodating parties without regular access to the Internet. NTSB proposes to slowly implement an electronic system, beginning with providing the capability for electronic filings to those wishing to use such as system.
NTSB will accept comments on the NPRM through April 9. Comments can be filed at www.regulations.gov. Identify docket ID NTSB-GC-2011-0001.