Is the Pilot’s Bill of Right 2 Right?

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As noted previously, the bill (S. 571, the full text of which was recently reported), has the potential to be quite revolutionary and its name, the Pilot’s Bill of Rights II (or PBOR2) adds to that aura. The below link relates that former, esteemed NTSB Member John Goglia has mixed reactions to this legislation.

The PBOR2 was authored by Senators Inhofe (with 14 bipartisan cosponsors) and by Rep. Graves (HR 1062 with 15 bipartisan co-sponsors). PBOR 1 passed the Senate and House in record time and with no apparent opposition from the Administration (the record of the votes did not include any statement by a Member arguing for the FAA against that radical change). The expedited movement from introduction to signature by the President reflects an apparent belief among the large pilot community that the FAA’s enforcement was heavy-handed.

PBOR 2 includes (§2) a mandate that the FAA terminate its medical certificate for pilots flying aircraft of less than 6,000 pounds (plus a number of exceptions like not applying to airmen flying for compensation or hire). This reflects the strong policy position of AOPA against the third class medical test, a policy change has been lingering for years. Member Goglia stated “I support this aspect of the proposed bill because in my opinion the cost of administering the medical certifications has not delivered a meaningful safety benefit.” Oddly, the NTSB disagrees and its opposition may be why the new rule has stalled.

The record on this narrow issue is fully developed and Congress can and should exercise its policy judgment. The facts, pro and con, as well as the arguments, are well known and a vote now would end a long, contentious debate.

PBOR 2 includes requirements that 
 
·        the FAA expedite NOTAMs (§5), 
·        availability of flight data (§6), 
·        limitation of liability of FAA designees and volunteers (§§7, 9) and 
·        a requirement that the FAR enforcement rules include options to 
issue a “warning notice, letter of correction, or other administrative action”. 

Those are substantive, but not dramatically revolutionary provisions.

The other major change included in PBOR 2 is the proposed extension of the option of an 
ab initio appeal of an FAA “order denying a covered certificate, or imposing a punitive civil 
action or an order of revocation” to a US District Court. The first PBOR established this 
alternate means of appeal for GA pilots. Both PBOR 1 and PBOR 2 include stricter rules of 
evidence and procedure (including the higher burden of proof on the FAA counsel). 
 
PBOR 2 would permit the following certificate holders to seek review in this stricter legal forum:
 
·        an airman certificate, 
·        design organization certificate, 
·        holder of type certificate, 
·        production certificate, 
·        airworthiness certificate, 
·        air carrier operating certificate, 
·        airport operating certificate, 
·        air agency certificate,
·         air navigation facility certificate,
·         medical certificate, 
·        or any other authorization issued by 
·        the Administrator under chapter 447 of title 49, United States Code
 
That includes every conceivable authority which the FAA issues.
 
The FAA historically has held several advantages in the enforcement process 
(preponderance of the evidence, unique access to the evidence, etc.), not the 
least of which is their issuance of allegations in a press release prior to any proof 
of their case. These announcements immediately impact the accused’s customers 
and impose immediate, negative economic impacts. There is considerable concern 
within the certificate community about the fairness of the process. This perspective 
obviously impacted the drafting of S. 571 and HR 1062.
 
Former Member Goglia cogently comments that this option would “remove the 
NTSB’s aviation expertise from the review.” The statute does not exclude the certificate 
holder’s ability before the Board; the certificate can chose one or the other place to take 
the case. 
 
This option to select where an appeal may be taken has been in place in the realm of tax 
cases for decades. There, the taxpayer may choose between the US Tax Court and a US 
District Court. The tax lawyers usually choose the Tax Court when the case against the IRS 
is technically complex and the District Courts tend to attract when the arguments involve 
issues of equity.  The S.571/HR 1062 choice of forum might be well served by this taxpayer litigation model.
 
PBOR 2, Mr. Goglia believes, would
 
“…expand the applicability of the prior law to corporate certificate holders such as 
airlines, repair stations and aircraft manufacturers and I believe make it harder for 
the FAA to take action for safety violations.”
 
There is no doubt that the FAA attorneys would have to work harder to make their cases, 
and safety may be at issue. Conversely, the certificates are extremely valuable and should 
be accorded some level of due process. The balance between these important policy 
considerations is not intuitive. 
 
As Member Goglia suggested, Congress should carefully review this specific section. 
For example, some balance might be achieved if Congress directed the NTSB administrative 
law judges to follow the federal rules of civil procedure and evidence. Another option would 
be to maintain the NTSB as the point of preliminary review, but leave ab initio appeal to a 
federal district court. If any of these proposals are enacted, the FAA legal staff will have to 
adjust their practices and more attorneys may be needed.
 
However the Congress chooses to move, the expedited review of PBOR 1 should not be 
repeated here. Hearings with FAA witness, trade association representatives, aviation counsel, 
academic scholars and the NTSB should scrutinize the ramifications of the Inhofe/Graves text. 
Bills of Rights, once enacted, are not readily rolled back.

[APOLOGIES for WordPress’ reformatting of this post; cannot force it to the intended format.]

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