Priv Pilots have Protective "Bill of Rights" now

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ussyorktown
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Priv Pilots have Protective "Bill of Rights" now

Postby ussyorktown » Sat Aug 04, 2012 3:16 pm

AOPA commends President Barack Obama for signing into law the Pilot’s Bill of Rights on Aug. 3. The legislation guarantees pilots under investigation by the FAA expanded protection against enforcement actions via access to investigative reports, air traffic control and flight service recordings, and it also requires the FAA to provide the evidence being used as the basis of enforcement at least 30 days in advance of action.

The legislation, championed by Sens. James Inhofe (R-Okla.) and Mark Begich (D-Alaska), co-chair of the Senate General Aviation Caucus, passed the Senate unanimously on June 29. Rep. Sam Graves (R-Mo.), co-chair of the House GA Caucus, and GA Caucus member Rep. Dan Lipinski (D-Ill.) shepherded the measure through the House, which passed on July 23.

the law requires an advisory committee to reanalyze the notice to airmen (notam) procedures, as well as a committee to review medical certification. Pilots will also, for the first time, be able to appeal decisions in federal courts and the National Transportation Safety Board is given greater oversight in reviewing enforcement cases.

Ensuring pilots are notified of any investigation of them by the FAA.
Giving pilots full access to data and evidence pertinent to the investigation.
Clearing up the burdensome ‘NOTAM’ process, which requires pilots comb through an “overwhelming” number of Notices to Airmen before flight.

Notices to Airmen “NOTAM”:

NOTAMs have been criticized as an unnecessary burden to pilots, who must review an “overwhelming” number of notices before flight in a national airspace system. A NOTAM improvement process will begin in order to simplify and make useful the notices.
As a result of the improvement process, NOTAMs will be organized in a central public location, and will be available for pilots in a searchable format. They will be prioritized for the location that the pilot is flying in.
Medical Certification:

The application for medical certification has also been criticized as unfair. It will be examined in order to make changes that provide better clarity and guidance to applicants.
Changes to the medical certification application would allow for the consistent treatment of applicants, and will hopefully decrease the number of alleged falsifications due to unclear medical questions
The bill, dubbed by one wag as “The Inhofe Revenge Bill,” was sparked by an October 2010 incident in which the Oklahoma Republican, a private pilot, landed his Cessna 340 on a closed runway at a small South Texas airport — scaring the daylights out of workers doing maintenance.

A recorded call to the FAA from the crew’s supervisor said Inhofe “sky-hopped” over the men and trucks and “scared the crap out of us.” (The call is really worth listening to. Click the link below and then click the play button in the Washington Post article to hear the "interesting" recording.

http://www.washingtonpost.com/blogs/in-the-loop/post/inhofes-pilots-bill-of-rights-set-to-pass/2012/07/23/gJQAgwHr4W_blog.html

There were huge (60 feet long by 10 feet wide) yellow X’s on the runway showing that it was closed.

The FAA in January 2011 barely gave Inhofe a slap on the wrist — let alone a license suspension — and ordered what he called some “painless” remedial training in lieu of any enforcement action. He praised the FAA, and said, “I could not have been treated better” by the agency.

Even so, Inhofe told us last February that he would introduce a bill to give pilots greater rights. “If a person is going to be accused of something,” he said, “he has to know what he’s being accused of.”

“I was never appreciative of the feeling of desperation,” Inhofe said, “until it happened to me.”

click picture below: Think how desperate those workers on the runway that day must have felt.

[img]http://www.washingtonpost.com/rf/image_606w/2010-2019/WashingtonPost/2012/07/23/National-Politics/Images/inhofecartoon.jpg?uuid=NAgs2NTyEeGCnY7t2eOslg[/img]
Last edited by ussyorktown on Sat Aug 04, 2012 3:45 pm, edited 2 times in total.

ussyorktown
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A Big Gain for the Fly Boys

Postby ussyorktown » Sat Aug 04, 2012 3:43 pm

The law greatly changes the balance of power between the FAA and pilots in their certificate enforcement cases. The new law is truly revolutionary.

the most revolutionary alterations are found in §2 and in particular sub section §2(d). Heretofore, the legal playing field was tilted in the government’s favor; the FAA has had the benefit of a lower evidentiary standard that administrative proceedings allow. If the certificate holder disagrees with the findings of the NTSB administrative law judge, he or she could appeal that determination to the full NTSB and from there, the only appeal was to a US Court of Appeals. Both of those reviews are limited to the facts and evidence as accepted by the ALJ.

The law now allows a pilot to appeal to a US District Court. There the Federal Rules of Evidence (FRE) and the Federal Rules of Civil Procedure (FRCP) require a more exacting level of proof and the basis for accepting evidence are far more demanding. By setting the USDC as an appeal court, that means that federal judges may take evidence and will require that the FAA meet the strict rules of those courts.

This may not appear to be a significant change, but it is. The FAA lawyers will have to spend considerably more time preparing their cases to be ready for these more exacting requirements. They will demand that the FAA inspectors produce evidence that is subject to this higher level of scrutiny. This extra burden will begin to occur in preparation for an informal conference, for the NTSB ALJ hearing and the full NTSB review; because the new §2(a) requires that a case seeking denial, amendment, modification,suspension, or revocation of an airman certificate must comply with the FRE and the FRCP. Most importantly, the FAA lawyers know that there is the possibility of a full trial before a US District Court judge.

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.

The newly enacted §2(b) requires that the FAA give the airman a warning that is similar to the Miranda rights—including (text followed by commentary):

telling the suspect “the nature of the investigation”; the FAA has recently given limited information about the case at the Letter of Investigation stage;
that an oral or written response to a Letter of Investigation from the Administrator is not required; “you have the right to remain silent”
that no action or adverse inference can be taken against the individual for declining to respond to a Letter of Investigation from the Administrator; “silence is not an admission”
that any response to a Letter of Investigation from the Administrator or to an inquiry made by a representative of the Administrator by the individual may be used as evidence against the individual; “anything you say can be held against you”
that the releasable portions of the Administrator’s investigative report will be available to the individual; the FAA releases an EIR if you ask; this seems to require that it be made available and
that the individual is entitled to access or otherwise obtain air traffic data described in paragraph (4)
That (4) paragraph makes the FAA preserve and make available any Air Traffic Control data that may be related to the alleged incident. There were occasions in which the FAA LoI was sent after the date when AT in the ordinary course of its business would have voided the relevant tapes. The new §4(c) makes the data held by the private contractor, which provides the Flight Service Station support, available as though it was the government.

Sections 3 and 4 are similar in that they both establish panels to reform the Notices to Airmen and Medical Certificate standards. These may be significant.

major revisions to the FAA’s enforcement procedures as applied to airmen certificates. It is surprising that the FAA did not voice opposition to these changes. It will be interesting to see how the Administrator and the Chief Counsel respond to this serious reprimand. There have been complaints about the FAA’s enforcement approach and these concerns were not just limited to pilot certificates.

The interesting question is how long before the other certificate holders seek the same protections—aviation maintenance technicians, air carriers, and repair stations. They would also appreciate the Inhofe Bill of Rights applied to their enforcement processes.

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drseti
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Postby drseti » Sat Aug 04, 2012 6:22 pm

Dan, it's really good to have an attorney's take on this. Thanks for the detailed post.
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ussyorktown
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Postby ussyorktown » Sat Aug 04, 2012 6:30 pm

This is amazing. As FAA will have to face a knock down, drag out fight in US District Court they will be very reluctant to issue violations. They will probably try to plea bargain like what they did for the Senator.

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Postby Jim Stewart » Sat Aug 04, 2012 9:00 pm

I think "the right to remain silent" is pretty interesting. Common wisdom is that showing "an attitude of compliance" will get you a lesser penalty. I'm guessing that the FAA will lose that carrot with the new law.
PP-ASEL, Flight Design CTSW owner.

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drseti
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Postby drseti » Sat Aug 04, 2012 9:17 pm

Jim Stewart wrote:Common wisdom is that showing "an attitude of compliance" will get you a lesser penalty.


That was the philosophy behind the NASA Aviation Safety Reporting System (ASRS) established in the 1970s (and still in effect). The carrot to encourage us to file ASRS forms is limited immunity. In the event of an inadvertent violation of the FARs, timely filing of an ASRS report was considered "indicative of a construction attitude," and taken into consideration should enforcement action be taken. (No guarantee of a get-out-of-jail-free card, and did not apply if criminal activity was involved, but it did help NASA to gain insights into pilot thoughts and actions.)

Post 9/11, TSA made it very clear that violating the Washington DC ADIZ (now called SFRA) could not be mitigated by filing an ASRS report. :( So, the Pilot's Bill of Rights might lead to a kinder, gentler FAA, but what we really need is a kinder, gentler TSA.
The opinions posted are those of one CFI, and do not necessarily represent the FAA or its lawyers.
Prof H Paul Shuch
PhD CFII DPE LSRM-A/GL/WS/PPC iRMT
AvSport LLC, KLHV
fly@AvSport.org
AvSport.org
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moving thread

Postby drseti » Thu Aug 30, 2012 4:01 pm

Moving this legal thread to the FARs forum.
The opinions posted are those of one CFI, and do not necessarily represent the FAA or its lawyers.
Prof H Paul Shuch
PhD CFII DPE LSRM-A/GL/WS/PPC iRMT
AvSport LLC, KLHV
fly@AvSport.org
AvSport.org
facebook.com/SportFlying
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jnmeade
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Postby jnmeade » Thu Aug 30, 2012 8:04 pm

Jim Stewart wrote:I think "the right to remain silent" is pretty interesting. Common wisdom is that showing "an attitude of compliance" will get you a lesser penalty. I'm guessing that the FAA will lose that carrot with the new law.

Mutterings on the street are that the carrot is used to get you to spill your guts to the ever so nice FSDO guy, only to be skewed by the lawyer at Regional. Look at all the big visibility airplane news items - do you see the pilots getting in front of the mike right away? No. They are lawyering up.


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