NTSB To Review
Emergency Certificate Actions Regulations
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rules that may be outdated and to modernize the rules to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.
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
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.
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
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