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S. 755: Fairness for Pilots Act

The text of the bill below is as of Mar 29, 2017 (Introduced).


II

115th CONGRESS

1st Session

S. 755

IN THE SENATE OF THE UNITED STATES

March 29, 2017

introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation

A BILL

To amend the Pilot's Bill of Rights to facilitate appeals, to limit the reexamination of airman certificates, and for other purposes.

1.

Short title

This Act may be cited as the Fairness for Pilots Act.

2.

Expansion of Pilot's Bill of Rights

(a)

Appeals of suspended and revoked airman certificates

Section 2(d)(1) of the Pilot's Bill of Rights (Public Law 112–153; 126 Stat. 1159; 49 U.S.C. 44703 note) is amended by striking or imposing a punitive civil action or an emergency order of revocation under subsections (d) and (e) of section 44709 of such title and inserting suspending or revoking an airman certificate under section 44709(d) of such title, or imposing an emergency order of revocation under subsections (d) and (e) of section 44709 of such title.

(b)

De novo review by district court; burden of proof

Section 2(e) of the Pilot’s Bill of Rights (Public Law 112–153; 126 Stat. 1159; 49 U.S.C. 44703 note) is amended—

(1)

by amending paragraph (1) to read as follows:

(1)

In general

In an appeal filed under subsection (d) in a United States district court with respect to a denial, suspension, or revocation of an airman certificate by the Administrator—

(A)

the district court shall review the denial, suspension, or revocation de novo, including by—

(i)

conducting a full independent review of the complete administrative record of the denial, suspension, or revocation;

(ii)

permitting additional discovery and the taking of additional evidence; and

(iii)

making the findings of fact and conclusions of law required by Rule 52 of the Federal Rules of Civil Procedure without being bound to any findings of fact of the Administrator or the National Transportation Safety Board.

;

(2)

by redesignating paragraph (2) as paragraph (3); and

(3)

by inserting after paragraph (1) the following:

(2)

Burden of proof

In an appeal filed under subsection (d) in a United States district court after an exhaustion of administrative remedies, the burden of proof shall be as follows:

(A)

In an appeal of the denial of an application for the issuance or renewal of an airman certificate under section 44703 of title 49, United States Code, the burden of proof shall be upon the applicant denied an airman certificate by the Administrator.

(B)

In an appeal of an order issued by the Administrator under section 44709 of title 49, United States Code, the burden of proof shall be upon the Administrator.

; and

(4)

by adding at the end the following:

(4)

Applicability of administrative procedure act

Notwithstanding paragraph (1)(A) of this subsection or subsection (a)(1) of section 554 of title 5, United States Code, section 554 of such title shall apply to adjudications of the Administrator and the National Transportation Safety Board to the same extent as that section applied to such adjudications before the date of enactment of the Fairness for Pilots Act.

.

(c)

Notification of investigation

Subsection (b) of section 2 of the Pilot’s Bill of Rights (Public Law 112–153; 126 Stat. 1159; 49 U.S.C. 44703 note) is amended—

(1)

in paragraph (2)(A), by inserting and the specific activity on which the investigation is based after nature of the investigation;

(2)

in paragraph (3), by striking timely; and

(3)

in paragraph (5), by striking section 44709(c)(2) and inserting section 44709(e)(2).

(d)

Release of investigative reports

Section 2 of the Pilot’s Bill of Rights (Public Law 112–153; 126 Stat. 1159; 49 U.S.C. 44703 note) is further amended by inserting after subsection (e) the following:

(f)

Release of investigative reports

(1)

In general

(A)

Emergency orders

In any proceeding conducted under part 821 of title 49, Code of Federal Regulations, relating to the amendment, modification, suspension, or revocation of an airman certificate, in which the Administrator issues an emergency order under subsections (d) and (e) of section 44709, section 44710, or section 46105(c) of title 49, United States Code, or another order that takes effect immediately, the Administrator shall provide to the individual holding the airman certificate the releasable portion of the investigative report at the time the Administrator issues the order. If the complete Report of Investigation is not available at the time the Emergency Order is issued, the Administrator shall issue all portions of the report that are available at the time and shall provide the full report within 5 days of its completion.

(B)

Other orders

In any non-emergency proceeding conducted under part 821 of title 49, Code of Federal Regulations, relating to the amendment, modification, suspension, or revocation of an airman certificate, in which the Administrator notifies the certificate holder of a proposed certificate action under subsections (b) and (c) of section 44709 or section 44710 of title 49, United States Code, the Administrator shall, upon the written request of the covered certificate holder and at any time after that notification, provide to the covered certificate holder the releasable portion of the investigative report.

(2)

Motion for dismissal

If the Administrator does not provide the releasable portions of the investigative report to the individual holding the airman certificate subject to the proceeding referred to in paragraph (1) by the time required by that paragraph, the individual may move to dismiss the complaint of the Administrator or for other relief and, unless the Administrator establishes good cause for the failure to provide the investigative report or for a lack of timeliness, the administrative law judge shall order such relief as the judge considers appropriate.

(3)

Releasable portion of investigative report

For purposes of paragraph (1), the releasable portion of an investigative report is all information in the report, except for the following:

(A)

Information that is privileged.

(B)

Information that constitutes work product or reflects internal deliberative process.

(C)

Information that would disclose the identity of a confidential source.

(D)

Information the disclosure of which is prohibited by any other provision of law.

(E)

Information that is not relevant to the subject matter of the proceeding.

(F)

Information the Administrator can demonstrate is withheld for good cause.

(G)

Sensitive security information, as defined in section 15.5 of title 49, Code of Federal Regulations (or any corresponding similar ruling or regulation).

(4)

Rule of construction

Nothing in this subsection shall be construed to prevent the Administrator from releasing to an individual subject to an investigation described in subsection (b)(1)—

(A)

information in addition to the information included in the releasable portion of the investigative report; or

(B)

a copy of the investigative report before the Administrator issues a complaint.

.

3.

Limitations on reexamination of certificate holders

(a)

In general

Section 44709(a) of title 49, United States Code, is amended—

(1)

by striking The Administrator and inserting the following:

(1)

In general

The Administrator

;

(2)

by striking reexamine and inserting , except as provided in paragraph (2), reexamine; and

(3)

by adding at the end the following:

(2)

Limitation on the reexamination of airman certificates

(A)

In general

The Administrator may not reexamine an airman holding a student, sport, recreational, or private pilot certificate issued under section 44703 of this title if the reexamination is ordered as a result of an event involving the fault of the Federal Aviation Administration or its designee, unless the Administrator has reasonable grounds—

(i)

to establish that the airman may not be qualified to exercise the privileges of a particular certificate or rating, based upon an act or omission committed by the airman while exercising those privileges, after the certificate or rating was issued by the Federal Aviation Administration or its designee; or

(ii)

to demonstrate that the airman obtained the certificate or the rating through fraudulent means or through an examination that was substantially and demonstrably inadequate to establish the airman’s qualifications.

(B)

Notification requirements

Before taking any action to reexamine an airman under subparagraph (A), the Administrator shall provide to the airman—

(i)

a reasonable basis, described in detail, for requesting the reexamination; and

(ii)

any information gathered by the Federal Aviation Administration, that the Administrator determines is appropriate to provide, such as the scope and nature of the requested reexamination, that formed the basis for that justification.

.

(b)

Amendment, modification, suspension, or revocation of airman certificates after reexamination

Section 44709(b) of title 49, United States Code, is amended—

(1)

in paragraph (1), by redesignating subparagraphs (A) and (B) as clauses (i) and (ii), respectively, and indenting appropriately;

(2)

by redesignating paragraphs (1) and (2) as subparagraphs (A) and (B), respectively, and indenting appropriately;

(3)

in the matter preceding subparagraph (A), as redesignated, by striking The Administrator and inserting the following:

(1)

In general

Except as provided in paragraph (2), the Administrator

; and

(4)

by adding at the end the following:

(2)

Amendments, modifications, suspensions, and revocations of airman certificates after reexamination

(A)

In general

The Administrator may not issue an order to amend, modify, suspend, or revoke an airman certificate held by a student, sport, recreational, or private pilot and issued under section 44703 of this title after a reexamination of the airman holding the certificate unless the Administrator determines that the airman—

(i)

lacks the technical skills and competency, or care, judgment, and responsibility, necessary to hold and safely exercise the privileges of the certificate; or

(ii)

materially contributed to the issuance of the certificate by fraudulent means.

(B)

Standard of review

Any order of the Administrator under this paragraph shall be subject to the standard of review provided for under section 2 of the Pilot’s Bill of Rights (49 U.S.C. 44703 note).

.

(c)

Conforming amendments

Section 44709(d)(1) of title 49, United States Code, is amended—

(1)

in subparagraph (A), by striking subsection (b)(1)(A) and inserting subsection (b)(1)(A)(i); and

(2)

in subparagraph (B), by striking subsection (b)(1)(B) and inserting subsection (b)(1)(A)(ii).

4.

Expediting updates to NOTAM program

(a)

In general

(1)

Beginning on the date that is 180 days after the date of enactment of this Act, the Administrator of the Federal Aviation Administration may not take any enforcement action against any individual for a violation of a NOTAM (as defined in section 3 of the Pilot’s Bill of Rights (49 U.S.C. 44701 note)) until the Administrator certifies to the appropriate congressional committees that the Administrator has complied with the requirements of section 3 of the Pilot’s Bill of Rights, as amended by this section.

(2)

In this subsection, the term appropriate congressional committees means—

(A)

the Committee on Commerce, Science, and Transportation of the Senate; and

(B)

the Committee on Transportation and Infrastructure of the House of Representatives.

(b)

Amendments

Section 3 of the Pilot’s Bill of Rights (Public Law 112–153; 126 Stat. 1162; 49 U.S.C. 44701 note) is amended—

(1)

in subsection (a)(2)—

(A)

in the matter preceding subparagraph (A)—

(i)

by striking this Act and inserting the Fairness for Pilots Act; and

(ii)

by striking begin and inserting complete the implementation of;

(B)

by amending subparagraph (B) to read as follows:

(B)

to continue developing and modernizing the NOTAM repository, in a public central location, to maintain and archive all NOTAMs, including the original content and form of the notices, the original date of publication, and any amendments to such notices with the date of each amendment, in a manner that is Internet-accessible, machine-readable, and searchable;

;

(C)

in subparagraph (C), by striking the period at the end and inserting a semicolon; and

(D)

by adding at the end the following:

(D)

to specify the times during which temporary flight restrictions are in effect and the duration of a designation of special use airspace in a specific area.

; and

(2)

by amending subsection (d) to read as follows:

(d)

Designation of repository as sole source for NOTAMs

(1)

In general

The Administrator—

(A)

shall consider the repository for NOTAMs under subsection (a)(2)(B) to be the sole location for airmen to check for NOTAMs; and

(B)

may not consider a NOTAM to be announced or published until the NOTAM is included in the repository for NOTAMs under subsection (a)(2)(B).

(2)

Prohibition on taking action for violations of notams not in repository

(A)

In general

Except as provided in subparagraph (B), beginning on the date that the repository under subsection (a)(2)(B) is final and published, the Administrator may not take any enforcement action against an airman for a violation of a NOTAM during a flight if—

(i)

that NOTAM is not available through the repository before the commencement of the flight; and

(ii)

that NOTAM is not reasonably accessible and identifiable to the airman.

(B)

Exception for national security

Subparagraph (A) shall not apply in the case of an enforcement action for a violation of a NOTAM that directly relates to national security.

.

5.

Accessibility of certain flight data

(a)

In general

Subchapter I of chapter 471 of title 49, United States Code, is amended by inserting after section 47124 the following:

47124a.

Accessibility of certain flight data

(a)

Definitions

In this section:

(1)

Administration

The term Administration means the Federal Aviation Administration.

(2)

Administrator

The term Administrator means the Administrator of the Federal Aviation Administration.

(3)

Applicable individual

The term applicable individual means an individual who is the subject of an investigation initiated by the Administrator related to a covered flight record.

(4)

Contract tower

The term contract tower means an air traffic control tower providing air traffic control services pursuant to a contract with the Administration under the contract air traffic control tower program under section 47124(b)(3).

(5)

Covered flight record

The term covered flight record means any air traffic data (as defined in section 2(b)(4)(B) of the Pilot’s Bill of Rights (49 U.S.C. 44703 note)), created, maintained, or controlled by any program of the Administration, including any program of the Administration carried out by employees or contractors of the Administration, such as contract towers, flight service stations, and controller training programs.

(b)

Provision of covered flight record to administration

(1)

Requests

Whenever the Administration receives a written request for a covered flight record from an applicable individual and the covered flight record is not in the possession of the Administration, the Administrator shall request the covered flight record from the contract tower or other contractor of the Administration in possession of the covered flight record.

(2)

Provision of records

Any covered flight record created, maintained, or controlled by a contract tower or another contractor of the Administration that maintains covered flight records shall be provided to the Administration if the Administration requests the record pursuant to paragraph (1).

(3)

Notice of proposed certificate action

If the Administrator has issued, or subsequently issues, a Notice of Proposed Certificate Action relying on evidence contained in the covered flight record and the individual who is the subject of an investigation has requested the record, the Administrator shall promptly produce the record and extend the time the individual has to respond to the Notice of Proposed Certificate Action until the covered flight record is provided.

(c)

Implementation

(1)

In general

Not later than 180 days after the date of enactment of the Fairness for Pilots Act, the Administrator shall promulgate regulations or guidance to ensure compliance with this section.

(2)

Compliance by contractors

(A)

Compliance with this section by a contract tower or other contractor of the Administration that maintains covered flight records shall be included as a material term in any contract between the Administration and the contract tower or contractor entered into or renewed on or after the date of enactment of the Fairness for Pilots Act.

(B)

Subparagraph (A) shall not apply to any contract or agreement in effect on the date of enactment of the Fairness for Pilots Act unless the contract or agreement is renegotiated, renewed, or modified after that date.

.

(b)

Technical and conforming amendments

The table of contents for chapter 471 of title 49, United States Code, is amended by inserting after the item relating to section 47124 the following:

47124a. Accessibility of certain flight data.

.

6.

Authority for legal counsel to issue certain notices

Not later than 180 days after the date of enactment of this Act, the Administrator of the Federal Aviation Administration shall revise section 13.11 of title 14, Code of Federal Regulations, to authorize legal counsel of the Federal Aviation Administration to close enforcement actions covered by that section with a warning notice, letter of correction, or other administrative action.