The NTSB adjudicates disputes between the FAA and a variety of certificate holders in cases which that authority has been suspended, modified or revoked. Historically in all of its oversight functions, the Board appears to have relished questioning the agency’s actions.
In that context, it is not surprising that aviation groups sought to have the NTSB reconsider its rule, in emergency actions of the FAA, which compelled the review to accept the allegations to be true and accurate. NBAA, AOPA, EAA, NATA and ALPA requested that the Board drop that rule which favors the FAA.
Surprisingly, the NTSB (PDF) rejected the request, citing that its staff resources were inadequate to make a de novo review of the facts in the time constraints of an emergency appeal. For an adjudicatory body that is supposed to bring some fairness to the process that is quite a statement! In essence, the NTSB is saying “Sorry, but we do not have the right number of people to make sure of the facts when an adverse decision will immediately, and perhaps permanently, destroy your livelihood.”
What makes this stance even more bizarre is to contrast the NTSB’s policy stance with the recently enacted Pilots Bill of Rights. Sen. Inhofe introduced legislation which radically altered a number of existing statutory rules which favored the FAA. This major revision to the FAA’s enforcement process and to the NTSB’s evidentiary, procedural and interpretative processes was passed by the Senate and then the House—without hearings, without amendment and in record time. It would not require the incredible insight of a preeminent pundit to analyze that the Congress was expressing severe dissatisfaction with the review of FAA same enforcement actions. Even more to the point, S.1335 made it clear that :
Another significant change in the balance of proof is found in §2(c). The statute, 49 USC 44709(d)(3), used to require that the NTSB was
“…bound by all validly adopted interpretations of laws and regulations the Administrator carries out and of written agency policy guidance available to the public related to sanctions to be imposed under this section unless the Board finds an interpretation is arbitrary, capricious, or otherwise not according to law.”
That statutory language (prior to S.1335) meant, if the FAA Chief Counsel or the Associate Administrator, Aviation Safety issued written policy guidance on the Federal Aviation Regulation at issue, the NTSB had to accept that interpretation as law unless that opinion was arbitrary, capricious or otherwise not according to law, THAT IS, only in all but a very few instances, the FAA view controlled. That meant that the certificate holder had a very difficult time arguing that the position of the FAA was wrong. That due deference was stricken; so now an airman may assert that the FAA’s reading of its own rules is wrong. THAT’S a huge change in the rules. (quoted from this blog post.)
That very fresh, emphatic statement by the Congress might suggest to the NTSB that their refusal to reverse their self-imposed rule which accepted the FAA’s facts (as opposed to the Inhofe deleted favoring of the agency’s interpretation of the law) was ill considered. Sen. Inhofe has shown a capacity to change the law and his likely “correction” of the NTSB’s rejection of the NBAA, et al petition should be embarrassing to the Board.Share this article: