REGULATORY COMPLIANCE ® .com The Pilot’s Bill of Rights Airmen Certificate Holders: Pilots, Flight Engineers, and Mechanics Michael L. Dworkin and Associates 465 California Street, Suite 210 San Francisco, CA 94104 Law@avialex.com Office (415) 421-2500 Fax (415) 421-2560 Copyright 2013. Michael L. Dworkin. All Rights Reserved. Avialex and the stylized logo are registered marks of Michael L Dworkin

History and Background 49 U.S.C 44709 - Certificate Actions: Amendments, modifications, suspensions and revocations of certificates 49 U.S.C. 46301 - Civil Penalties 14 CFR Part 13 (“FAR Part 13”) – Investigative and Enforcement Procedures FAR Part 61 – Pilot Certification 49 CFR Part 821 – NTSB Rules of Practice; and Interim Final Rule, 77 F.R. 63242 (October 16, 2012) SEE: FAA NOTICE N 8900.195 – Requirements for Written Notification During Investigation of Airman Certificate Holders or Applicants

OVERVIEW Citing “agency overreach”, on July 6, 2011, Senator James Inhofe, proposed new procedures requiring the FAA to advise airmen certificate holders subject to an enforcement action of the reason for the investigation, and to inform the pilot that the pilot may decline to respond without penalty. The pilot would be given all investigative reports, ATC data or other relevant information 30 days before enforcement action could proceed (except for emergency actions). Public Law 112-53 “The Pilot’s Bill of Rights” went into effect on August 3, 2012.

What does Pilot Bill of Rights Do? Disclosure of Enforcement Investigative Report NTSB application of Federal Rules of Civil Procedure Appeal of FAA/NTSB Orders to U.S. District Court or U.S. Court of Appeals NOTAMS Improvement Plan Revision of Medical Certification Process

Types of Enforcement Actions Administrative actions BILL OF RIGHTS DOES NOT APPLY FAA Flight Standards District Office (FSDO) Do not involve the FAA legal department. Include letters of correction, warnings and reprimands. Legal enforcement actions BILL OF RIGHTS DOES APPLY Start at the FSDO, go through Regional Flight Standards Division and then to FAA legal* FAA legal decides whether to initiate action and, if so, what type. Include suspension or revocation of any certificate or rating, or the imposition of monetary civil penalties. *(Office of the Chief Counsel or the appropriate Regional Counsel)

When is Written Notification of investigation required to be given under the Pilot’s Bill of Rights? - LOI to Airman (‘should’ be issued no later than 5 business days after EIR is opened); -When an individual submits an application for an airman certificate, rating or inspection authorization; - A letter requesting reexamination of an airman’s qualifications (44709 letter); -Potential violations by an airman involving air traffic data for which an EIR has not yet been opened; - Formal Remedial Training; and - “Other contacts” with an airman that result in an investigation that relates to the airman’s certificate, rating or inspection authorization

FAA ENFORCEMENT PROCEEDINGS ® IN GENERAL.—Except as [otherwise] provided …, the Administrator of the [FAA] shall provide timely, written notification to an individual who is the subject of an investigation relating to the approval, denial, suspension, modification, or revocation of an airman certificate… (A) the nature of the investigation (B) An oral or written response to a Letter of Investigation from the Administrator is not required. (C) No action or adverse inference can be taken against the individual for declining to respond to a Letter of Investigation from the Administrator. (D) 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. (E) The releasable portions of the Administrator’s investigative report will be available to the individual. (F) The individual is entitled to access or otherwise obtain air traffic data

Access to ATC Data The Administrator of the Federal Aviation Administration shall provide an individual who is the subject of an investigation relating to approval, denial, suspension, modification, or revocation of an airman certificate under chapter 447 of title 49, United States Code, any air traffic data that would facilitate the individual’s ability to productively participate in the investigation, including the following: Subsection 2(b) of the statute requires the FAA provide ‘‘timely, written notification’’ to individuals who are the subject of an FAA enforcement action regarding the ‘‘nature of the investigation.’’

(A) Relevant air traffic communication tapes between flightcrews and ATC (B) Radar information. (C) Air traffic controller statements. (D) Flight data (non-ATC communications, nonradar data, weather reports and NOTAM, etc.) (E) Releasable portion of Investigative reports. (F) Any other air traffic or flight data that would facilitate the individual’s ability to productively participate in the investigation.

TIMING The Administrator shall not proceed against an individual that is the subject of an investigation described in paragraph (1) for at least 30 days after the air traffic data required under paragraph (2) is made available to the individual. NOTES: This does not affect the FAA’s ability to initiate an emergency suspension or revocation order. The FAA may claim notice is not required because to do so would “threaten the integrity of the investigation.”

STATUTORY DEFERENCE A long time bane to regulatory compliance attorneys and a boon to FAA legal, the PBR has included additional language intended to clarify the “statutory deference” afforded the FAA by the National Transportation Safety Board (NTSB), citing long known statistics attorneys have claimed show the NTSB’s inclination rubber stamp FAA decisions. Also included is a provision allowing pilots to bring appeals of FAA enforcement actions in federal district court rather than to the NTSB.

NATIONAL TRANSPORTATION SAFETY BOARD NEW RULES Following enactment of the Pilot’s Bill of Rights, the NTSB amended its regulations, which set forth rules of procedure fo the NTSB’s review of certificate actions taken by the FAA. Federal Rules of Evidence and Federal Rules of Civil Procedure, to the extent practicable, are now applicable to all NTSB proceedings which govern airman certificates (amendments, modifications, suspensions, and revocations). By implication, this possibly applies to Civil Penalty Actions as well.

Certificate Actions Originally, the FAA's Orders of Suspension or Revocation were only appealable to the NTSB. Airmen may now appeal a FAA Order or a final Board Order to the Federal district court or a Federal court of appeals. Without a stay from the Board, an emergency order will remain in effect pending the exhaustion of the appeal to the Federal district court. “…Full independent review…”

Motion to dismiss for failure to include copy of releasable portion of Enforcement Investigative Report (EIR) Subsection 2(b)(2)(E) of the Pilot’s Bill of Rights requires the FAA to make available the releasable portions of its EIR concerning each individual against whose certificate it takes action. The disclosure must occur in a timely manner, unless doing so would threaten the integrity of the investigation. Consult an attorney: A Certificate Action can be dismissed for the FAA’s failure to provide the discoverable portions of the EIR by the Airman filing a motion. You must be prepared to argue whether this failure has resulted in prejudice. Without such a successful argument, the FAA is likely to just immediately re-file the same action.

RELEASABLE PORTIONS OF EIR The releasable portion of the EIR shall include all information in the EIR, except for the following: Information that is privileged; Information that is an internal memorandum, note or writing prepared by a person employed by the FAA or another government agency; Information that would disclose the identity of a confidential source; Information of which applicable law prohibits disclosure; Information about which the law judge grants leave to withhold as not relevant to the subject matter of the proceeding or otherwise, for good cause shown; or Sensitive security information

ITEMS THAT THE FAA WILL NOT RELEASE Internal FAA and government communications regarding their impressions about the case. Recommendations from the investigating inspector. Source of anonymous complaints against you. Determinations by TSA and DHS.

Michael L. Dworkin and Associates “The role of aviation counsel is not only to defend the enforcement action after it has been initiated, but to better understand the client's day to day concerns and provide the necessary advice and assistance to mitigate its effects and prevent recurrence of the violation” Thank you. WWW. .COM Michael L. Dworkin and Associates (415) 421-2500