Plane-ly Speaking About the PLANE Act of 2019 – Part I

On July 23, Senators Inhofe (OK) and King (ME), introduced the Promoting the Launch of Aviation’s Next Era Act of 2019 (the PLANE Act of 2019), S. 2198, a 38-page bill which according to  press releases from Senator Inhofe’s and Senator King’s offices, “would empower the voices of pilots, invest in airport infrastructure and ensure more opportunities for a trained aviation workforce.”  In a recent letter to  both Senators, thirteen aviation associations indicated their strong support for the bill.

Although not as pervasive as the FAA Reauthorization Act of 2018, Pub. L. 115-254, Oct. 5, 2018, the PLANE Act is broad in scope and in some respects, can be characterized as a mini-FAA reauthorization proposal. The bill contains the following six titles:

  • Title I — Fairness for Pilots (sections 101 to 105)
  • Title II — Forward Looking Investment in General Aviation, Hangers, and Tarmacs (“FLIGHT Act”) (sections 201-206)
  • Title III — Securing and Revitalizing Aviation (“SARA Act”) (section 301)
  • Title IV – Air Traffic Controller Reforms (sections 401-402)
  • Title V – Aviation Fuel Taxes (section 501)
  • Title VI – Voluntary Surrender of Repair Station Certificate (section 601)

In this post we will highlight provisions in the Fairness for Pilots title of the PLANE Act.  In one or more subsequent posts, we will address other noteworthy language in the remaining five titles of the legislation.

Fairness for Pilots

If enacted, section 101 (Expansion of Pilot’s Bill of Rights) of this title would represent the second time the Pilot’s Bill of Rights, Pub. L. 112-153, Aug. 3, 2012) is amended.  (The Pilot’s Bill of Rights was previously amended by the Fairness for Pilots Act, title III, subtitle C, sections 391 to 394, of the FAA Authorization Act of 2018).

  • Section 101(b): The Pilot’s Bill of Rights authorizes an individual to file “an appeal” in a U.S. district court of a decision by the National Transportation Safety Board (NTSB) to uphold an order or final decision of the FAA to suspend or revoke an airman certificate or imposing an emergency order of revocation of a certificate. That statute also requires a court reviewing the appeal to “give full independent review” of the FAA’s action, including “substantive, independent, and expedited review” of an FAA decision to make an order effective immediately.  Section 101(b) makes clear that with respect to a denial, suspension, or revocation of an airman certificate, the district court will review the FAA action de novo and make findings of fact and conclusions of law required by Rule 52 [Findings and Conclusions by the Court; Judgment on Partial Findings] of the Federal Rules of Civil Procedure “without being bound to any findings of the FAA or the [NTSB].”
  • Section 102(a): In rather inartfully drafted language, this section allows the NTSB to review the FAA’s denial of the issuance of an airman medical certificate “when the FAA has twice reconsidered the application and sustained a previous denial on that application.”
  • Section 102(e): 49 U.S.C. § 44702(d) authorizes the FAA to delegate to qualified private persons the authority to conduct an examination, test, and inspection necessary to issue a certificate and issue the certificate and permits the FAA to rescind a delegation “at any time for any reason the Administrator considers appropriate.”  Section 102(e) would permit an individual whose delegation has been rescinded to appeal that action in the same manner that other certificate actions can be appealed to the NTSB and then a U.S district court.
  • Section 103: This provision would prohibit the FAA from reexamining an airman holding a student, sport, recreational, or private pilot certificate “if the reexamination is ordered as a result of an event involving the fault of the [FAA].”  Reexamination would be appropriate only when the FAA has reasonable grounds to establish the “airman may not be qualified to exercise the privilege of a certificate or rating … based upon an act or omission committed by the airman while exercising these privileges” or “to demonstrate that the airman obtained the certificate through fraudulent means or through an examination that was substantially and demonstrably inadequate to establish the airman’s qualifications.”  Further, after a reamination permitted under this section, the FAA may not issue an order to revoke an airman certificate unless the airman lacks technical skills, competency, care, judgment, and responsibility necessary to safety exercise the privileges of the certificate or the airman “materially contributed to the issuance of the certificate by fraudulent means.”
  • Section 104: This section would require the FAA to issue a final rule amending sections 11.61 through 11.103 of title 14, Code of Federal Regulations (Petitions for Rulemaking and Exemptions) and consider the following factors in its rulemaking and decisions on rulemaking petitions:
  • The number of certificate holders directly affected by the rulemaking proposal
  • The impact of the rulemaking proposal on small businesses
  • The number of organizations requested the rulemaking proposal
  • Section 105: This section would require the FAA to issue a final rule amending subparts A and F of part 13 of title 14, Code of Federal Regulations (Rules Implementing the Equal Access to Justice Act) to require the completion of an investigation and a decision by the FAA on whether to initiate a subsequent action within two years from either the date a complaint is first filed or the issuance of an order of investigation.

The provisions summarized above address a number of longstanding concerns by the flying community with FAA and NTSB practices and procedures that have not been fully addressed in previous statutes.  Whether the press of other legislative business during the current Congressional session allows adequate time for full consideration of the PLANE Act, previous Congressional activities leading to the ultimate enactments of the Pilot’s Bill of Rights and the Fairness for Pilots Act, bode well for favorable action on the bill during a future Congressional session if not the current one.

We will summarize the remaining provisions of the PLANE Act soon.

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