FAA Notice Implementing the Inhofe Bill of Rights does not Reflect the Congressional Policy Direction

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NOTICE: Requirements for Written Notification During Investigations of Airman Certificate Holders or Applicants

Senator InhofeLast July, the Congress of the United States enacted the Pilots’ Bill of Rights(S.1335), authored by Senator Inhofe. Within months of passage, the ATO staff issued procedures for preserving the relevant air traffic tapes as the bill required. Then the NTSB amended its rules to reflect the new Inhofe procedures.

The attached link is to a notice with an effective date of August 8, 2012. No press release accompanied this document, though both the ATO and NTSB actions were deemed important enough for public announcement. The FAA website has a link labeled Pilots’ Bill of Rights and it only connects to the ATO action.

The notice is unusually bereft in substantive advice in processing of cases by the field inspectors. In fact the guidance is more defensive of the FAA than acknowledging of the new rights afforded to pilots.

For example, the language (¶7) as to providing notice to the airman begins with a 5-day rule; the notice to pilot must be delivered within 5 business days of opening an EIS. The FAA took more words to define exceptions to the rule. They are:

  • Likelihood of destruction/concealment (how would the pilot know to destroy the records unless he knew that the FAA was investigating?)
  • Death, serious bodily harm or destruction of property—kill whom/why? Harm someone or something? Why and how would they know? This borders on paranoia, no?
  • Not enough time to give written notice, but can provide oral notice. This is going to be cited a lot, I bet!

The language is indicative of a belief that airmen possibly would destroy evidence or commit serious crimes due to the potential initiation of an enforcement case.

The notice acknowledges that the Federal Rules of Evidence and Civil Procedures apply to NTSB reviews of enforcement actions against pilots. The advice does not counsel the people preparing the EIR that they should rely only on documents and testimony that meet those higher standards. For example, documents now will be subject to a higher level of verification, hearsay testimony will not normally be admissible, etc. f the EIR is filled with “evidence” that will be rejected by NTSB ALJs and Federal District Judges. Without more instruction, there should be a high level of NTSB and USDC reversal rate.

N8900.195 acknowledges that the pilot can appeal the case to a Federal District Court with a trial de novo of the facts, but does not again mention that this is a MUCH heavier burden on the government.

The notice includes a plain vanilla statement that the NTSB no longer must defer to the FAA interpretations of the law and regulations. Good counsel would have included a mention that the field personnel should research the regulations better; because the “I say it’s so” is no longer a good answer. The pilots counsel will provide detailed, well researched rationales of why the FAA’s position is wrong. Without good countering arguments by the FAA, the NTSB ALJs and USDC judges will hammer them. An interesting question would be an effort by pilot’s counsel to walk the ALJ through the EDP chart!

The notice letter (Appendix A) uses language that is so lacking in specificity as to the FAR § that the airman will not know with what he is being charged. It is clear that this intentionally ambiguous document will be attacked in the 1st case reviewed under the Inhofe legislation. The FAA risks an NTSB ALJ dismissing a case for failure to comply with the Pilot’s Bill of Rights.

Maybe there is other FAA guidance with regard to the implementation of Senator Inhofe’s Pilots’ Bill of Rights. This notice, at best, recites the letter of the law. What is lacking is the spirit of this revolutionary revision to the statute. The Congress of the United States passed this legislation without any hearings, with almost no objection heard on the floor of either house and in record time. There was substantial momentum to this enactment; the changes point to a substantial belief among them that the past FAA enforcement practices were inappropriate. Notice 8900.195 does not reflect that Congressional policy direction.

Senator Inhofe keeps a close eye on the FAA. This underwhelming response might well see the senior senator from Oklahoma introducing another bill of rights, more thorough and perhaps applicable to more than airmen. The notice bears an August 8. 2013 revision date; maybe the more permanent version will acknowledge the Congressional intent.

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