You have to recall that communication tapes and other data are routinely destroyed and are only kept for brief periods. Sometimes they are destroyed in as little as five days and other times as long as 45 days depending on the type of data. You must seek this information immediately when it appears you may need it for your defense. Use certified mail to the Administrator as early as you can requesting this information and request written confirmation. Do not rely on oral requests on the phone. You can also forward your request for information (under the FOIA) from the FAA by email; send to AirmenDataRequest@faa.gov.
This discussion only looks at the major changes in the law of FAA enforcement proceedings. There are other areas that the law looks at including matters dealing with NOTAM distribution and an associated improvement program. A new medical certification assessment program is also established to look at standards and application forms.
There has been an expansion of this law (the PBR) that includes a further discussion of the application of "policy" additions regarding IAs and other certified parties.
Why do these rules apply to IAs?
IAs must hold A&P certificates therefore they are certificated airmen. A recent FAA document makes this clear. The document is titled “Requirements for Written Notification During Investigations of Airman Certificate Holders or Applicants” (N-8900.195). It’s further titled “National Policy” at its heading and its effective date was Aug. 8, 2012. It is curious that no one that I know ever heard of this document so far this year but it is “policy” now. Of course we all don’t read Flight Standards Information Management System handbook (FSIMS) nor peruse FAA.gov on a regular schedule, but that is where you can find this Notice document and its guidance to inspectors at the various FSDOs around the country.
The document sets out a detailed description of the Pilots Bill of Rights law and essentially spells out all of the items discussed in my description above. However, the Pilots Bill of Rights law speaks for itself. The alleged policy additions may, as some suggest, violate the terms of the Administrative Procedures Act which is supposed to prevent administrative agencies from expanding existing laws as they see fit or creating new ones without complying with the notice requirements of the APA.
The one addition via the policy letter is that all of the certificate holders when acquiring or renewing are subject to “investigation“ in order to acquire or renew their certificates. This document you will not find described in the Pilots Bill of Rights law. Sure they would look at your application forms and determine if you have the necessary time in your logbooks (pilot applicants), or other types of applicants and look over other documents like your medical certificate. But somehow the killer Sept. 11 pilots slipped through the FAA process. In the case of mechanics they of course would look over your training records and in general check that you comply with the various sections of the FAR Part 61, 63, and 65. But now each applicant for any kind of certificate must sign another document that is attached to your application form 8610 that is titled “Pilots Bill of Rights Written Notification of Investigation.” I call it the Miranda document, after the famous case.
This document is nothing more or less than notice to you that an “investigation” will take place regarding your qualification to apply for your certificate or in the case of an IA, his or her authority to perform annual inspections and other privileges of the authority. (Of course you are aware of this, why do we need this form?) Most will simply sign the document but others I understand have balked at signing something that they might not understand.
Does this form violate due process?
This document is similar to a “Miranda” warning, which is used to caution one detained on a criminal charge. However in our case there is none and there is no probable cause involved. Many claim that its use could be challenged on this point alone, as criminal attorneys might suggest.
In addition, it may even be tramping on the Americans With Disabilities Act where it says you … "must be physically able to perform the duties related to the certificate … you are applying for…” Nowhere in the FAR or other parts of the regulations do we find this kind of language with respect to applying for any kind of certificate. Pilots already get a flight physical, what are they going to do now, demand a physical exam for all the other certificates? How are they to determine whether or not someone is … physically able to perform? They have no training in this area.
Some practical observations on the Pilots Bill of Rights
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