Section 217.40 - Proceedings Following NFFD Determinations(a) If the Board seeks the revocation or suspension of a pilot's license following a determination of NFFD, it shall file an accusation and proceed with a formal hearing under the provisions of Sections 1181, 1182, and 1183 of the Code and Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.(b) An applicant for renewal of a pilot's license whose license is not renewed following determination of NFFD and a person whose application for original licensure is either denied or its consideration suspended based on a determination of NFFD may within 30 days of the date of the notification of the action taken file a written notice of appeal with the Board. Upon filing of a timely notice of appeal, the Board shall schedule the matter for a formal hearing under the provisions of Sections 1177.5(a) and 1183 of the Code and Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.(c) Pilot trainees who are determined to be NFFD and who as a result are either terminated from the pilot trainee training program or placed on leave from the program may appeal these actions. A person offered a position in the pilot trainee training program but who is denied entry into the program because determined to be NFFD prior to entry into the training program has no right of appeal. The appeal authorized by this subsection shall proceed in the following manner and in accordance with the following procedures: (1) An appellant shall file a written notice of appeal with the Board within 30 days of the date of the notification by the Executive Director that the appellant has been terminated or placed on leave from the pilot trainee training program. The appeal shall be accompanied by a physician's written report setting forth the results of a fitness evaluation conducted by a physician of the appellant's choice. The fitness evaluation shall include, at minimum, a physical examination. The written report of the appellant's physician shall contain an opinion whether the appellant is FFD or NFFD, explain the basis for that opinion, and include any information that was relied upon in reaching that opinion. This fitness evaluation and report shall be completed at appellant's own expense.(2) The Executive Director shall provide the Medical Review Officer with the report completed by appellant's physician, and a Board-appointed physician shall evaluate the appellant's fitness for duty at Board expense. The fitness evaluation shall include a physical examination. The Board-appointed physician who determined the appellant to be NFFD shall conduct this additional fitness evaluation. The Executive Director shall notify the appellant in writing of the date, time, and location of the physical examination. The Board-appointed physician performing the fitness evaluation shall complete a written report of the fitness evaluation, which shall contain an opinion whether the appellant is FFD or NFFD, explain the basis for that opinion, and include any information that was relied upon in reaching that opinion. If the Board-appointed physician relies on information developed during the fitness evaluation that led to the original determination, prior to the appeal, of NFFD, then that information, including any relevant written material from the first fitness evaluation, shall be submitted with the report. The report shall comment on the fitness determination made by appellant's physician.(3) The Executive Director shall provide to appellant's physician, by the U.S. Postal Service or overnight delivery service, the report of the additional fitness evaluation and all written material developed in connection with the fitness evaluation that led to the initial determination, prior to the appeal, of NFFD. The appellant's physician shall have 30 days following the Executive Director's deposit of this material with the U.S. Postal Service or an overnight delivery service in which to submit to the Board in writing any comments on this additional fitness determination concerning the appellant.(4) The hearing on the appeal shall be before the Board and shall be informal. All medical reports prepared in response to the appeal, including material relied upon from earlier fitness evaluations, shall be made part of the record before the Board. The hearing will be conducted in accordance with the informal hearing procedure set forth in Sections 11445.10 through 11445.60 of the Government Code. (A) Failure of the appellant to proceed at the time set for the appeal hearing before the Board shall be deemed a withdrawal of the appeal unless the hearing is continued for good cause.(B) The presiding officer may order closure of the hearing or make other protective orders to the extent necessary or proper for the purposes set forth in Government Code Section 11425.20, including maintaining the confidentiality of the medical or disability information of a pilot under Harbors and Navigation Code Section 1157.1.(C) The decision by the Board shall contain the following determinations: 1. Whether the appellant is FFD or NFFD.2. If the trainee is NFFD, whether the trainee should be terminated from the training program or continued on leave from the training program for some period up to, but not exceeding, one year from the date of the Board's decision on appeal.Cal. Code Regs. Tit. 7, § 217.40
1. New section filed 1-24-2014; operative 4-1-2014 (Register 2014, No. 4).
2. Amendment of section heading and subsections (c)(1)-(4) filed 7-29-2021; operative 10-1-2021 (Register 2021, No. 31). Filing deadline specified in Government Code section 11349.3(a) extended 60 calendar days pursuant to Executive Order N-40-20. Note: Authority cited: Section 1154, Harbors and Navigation Code. Reference: Sections 1101, 1141, 1157, 1157.1, 1157.2, 1157.3 1157.4, 1171, 1171.5, 1176, 1176.5, 1180, 1181, 1182 and 1183, Harbors and Navigation Code.
1. New section filed 1-24-2014; operative 4-1-2014 (Register 2014, No. 4).
2. Amendment of section heading and subsections (c)(1)-(4) filed 7-29-2021; operative 10/1/2021 (Register 2021, No. 31). Filing deadline specified in Government Code section 11349.3(a) extended 60 calendar days pursuant to Executive Order N-40-20.