FAA Emergency Action Revisited

FAA Emergency Action Revisited What's the solution? By Stephen P. Prentice April 2000 Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant certificate and is an ATP rated pilot...

Now this quick procedure may come after the FAA has had the facts of the case for many months. Despite the fact that this emergency action procedure is supposed to be prompt, it may take a long time for the government to conclude that an emergency exists in the first place. This is another sore point. The FAA would contend in defense that they are just being careful in investigating the facts before taking action. Others, however, would say that at some point, this argument is ridiculous and must fail simply because the longer it takes to get the facts together, the more obvious it becomes that prompt action is not necessary! When the FAA has the facts for six months to a year, it's nonsense to contend that an emergency exists!

Certain violations have no place being prosecuted via emergency procedures. Minor infractions of a singular nature should clearly be insufficient to justify use of emergency suspension or revocation procedures; however, an accumulation of different events and other violations may justify such action. What is needed is clear and explicit administrative guidelines in this area so that the emergency has some objectivity and more importantly, that certificate holders may have prior notice.

Standard needed
Unfortunately, there are still no clear guidelines on what type of factual presentation by the administrator will justify the use of such punitive action against a certificate holder. The broad term emergency should be narrowed by regulation to provide the aviation community with notice of when and on what conditions this summary procedure will be used. The consequences are too great to avoid some regulation in this area. Where certificate holders are notified of guidelines as to what constitutes an emergency that would provoke such action, they will be able to perhaps remedy a situation in advance.

Without guidelines, there is the continuing danger of uneven application and indeed selective enforcement of the rules.

Emergency action was designed to protect the public. It is most useful when an errant air carrier needs to be shut down, as we have recently seen. The protection of the flying public is a paramount consideration. Therefore, it is reasonable for the government to have a broad grant of discretionary power to allow immediate action in cases of widespread violations. Broad delegation of authority to various agencies by Congress is not unusual in the federal system and has been sustained on many occasions by the Supreme Court. But, it is necessary that rules and regulations limiting and confining the use of these powers be clearly set forth — many times they are not.

Effects on technicians
A second and more objectionable result of a suspension or revocation of your A&P certificate is that you lose your inspection authority, which cannot be held without a mechanic's certificate. If you don't get the certificate back before March 31, you have to retake that test all over again, and we all know what that entails.

Emergency action works well when it is directed where it should be — primarily air carriers and other activities that pose a substantial threat to the public. Where there is a continuing and immediate danger to the public, emergency action is required. In cases where an individual airman is involved, however, many times it is used to coerce and pressure him as a punitive step by the government. What you have to remember is that an inspector's report determines the course of action. Regional counsel is required to sign-off on emergency actions, and they usually follow an inspector's recommendation.

Attack on emergency action
In 1998, the Congress of the United States took a hard look at this summary power of the FAA. Several plans to modify it were put forward with the most common thread in all of them being some sort of early review of the emergency nature of the case before getting to the substance.

Board review of emergency nature
Congressional review was in the form of a Congressional Hearing held on Aug. 6, 1998, in Washington dealing with H.R. 1846: FAA's Emergency Revocation and Suspension of Licenses. A new bill was designed to allow for an independent examination by the board (NTSB) of the issues of any appeal that are related to the existence of an emergency. The question is, "Does an emergency really exist?"

The need for an immediate review is evident. If a board member could be empowered with review oversight on an immediate basis, it would solve the constitutional issue. When a case is filed, a copy could be delivered to a board member (or the full board membership). It could be reviewed immediately (within five days) and a decision could be made as to whether an emergency really existed. Simple. But, the FAA clearly does not want their decision questioned. We have to keep in mind that the emergency nature of the case is not an issue and is not decided at the hearing of the case. Whether it qualifies as an emergency is not addressed. This procedure would be nice, but so far it has not happened!

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