NTSB To Review Emergency Certificate Actions Regulations


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NTSB To Review Emergency Certificate Actions Regulations

By Daniel Baxter

January 3, 2011 - The NTSB has issued an Advance Notice of Proposed Rulemaking (ANPRM) seeking comments from the public regarding amendments to its procedural rules dealing with review of Federal Aviation Administration (FAA) certificate actions and its rules concerning applications for fees and expenses under the Equal Access to Justice Act. 

The NTSB listed three main reasons for its undertaking a review of 49 CFR parts 821 and 826; to respond to parties' suggestions for changing the rules, to update rules that may be outdated and to modernize the rules to accommodate prospective electronic filing and document availability in case dockets. 

The ANPRM indicates that certain parties have approached the NTSB concerning emergency certificate actions, which involve cases in which the FAA issues an immediately effective order revoking or suspending a certificate. Emergency orders are issued by the FAA where it finds that the interests of safety require that the order be effective immediately, and, in those cases, certificate privileges may not be exercised during the pendency of the appeal. Section 716 of the Aviation Investment and Reform Act for the 21st Century (hereinafter, ??the Act??) amended 49 U.S.C. 44709 by granting the NTSB authority to review such emergency determinations. 

In such cases, the NTSB's procedural rules allow a party to challenge the emergency status of the case, and provide an expedited timeline for doing so. The rules currently require the NTSB's administrative law judges to "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."  

The ANPRM invites public comments concerning this standard of review, as well as other aspects of the emergency review process, such as whether a hearing should occur to allow parties to provide evidence concerning whether the case should be treated as an emergency. The ANPRM further invites comments concerning whether parties should have an opportunity for another level of appeal to challenge the emergency status determination. 

In addition, the ANPRM also solicits comments concerning electronic filing of documents for aviation certificate cases, and requests specific consideration as to whether such electronic filing is feasible for individuals who opt not to retain an attorney. The ANPRM further seeks feedback concerning whether any outdated information exists in the current procedural rules.


The NTSB also received several comments concerning the review of evidence during the emergency determination review phase; most commenters asserted that certificate holders need more evidence from the FAA in order to contest the determination that an emergency exists. After carefully considering the comments concerning the presentation of evidence during the emergency review determination phase, the NTSB included the following provision in section 821.54(d) of its Final Rule: ??No hearing shall be held on a petition for review of an emergency determination.  

However, the law judge may, on his or her own initiative, and strictly in keeping with the prohibition on ex parte communications, solicit from the parties additional information to supplement that previously provided by the parties.?? Several commenters were also concerned with the Interim Rule?s provision, in section 821.54(f), that the law judge?s determination concerning an emergency review petition would be considered final. The commenters provided various suggestions for an appeal process, in which a certificate holder could appeal the law judge?s determination that an emergency exists to the Board.


In the Final Rule, the NTSB decided not to institute such an intermediate appellate procedure for review of the law judges? decisions in reviewing emergency determinations. The NTSB determined that it was not necessary and would prove infeasible given the 5-day statutory period in which the Board must act on a petition in order to address concerns of inconsistency and lack of precedent.  

The NTSB provided in the Final Rule that it would, in those cases that are appealed to the Board for a decision on the merits of an emergency or other immediately effective order of the Administrator, state the Board?s concurrence or disagreement with the law judge?s ruling on a petition challenging the emergency determination whenever it would be beneficial to address the issues raised, and that such views of the Board would serve as binding precedent in future cases.

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