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July 28, 2005

NTSB Denies Request For Stay Of 180 Day Suspension

A recent NTSB opinion provides a good summary of the Board's policy on granting a stay of sanction pending appeal. In Administrator v. Wesley, the airman requested a stay of a 180 day suspension ordered by an ALJ. Summarizing its policy on granting stays, the Board quoted an earlier opinion in which it stated "[w]e generally grant a stay when a suspension of less than six months [180 days] is affirmed, and consistently deny stays in cases involving certificate revocation because revocation incorporates a conclusion that an airman lacks the qualifications required of a certificate holder. Cases involving suspensions of six months or more are evaluated on a case-by-case basis, considering the seriousness of the violations."

Applying its case-by-case analysis to the pending case, the Board noted that the airman "operated as PIC on four passenger-carrying flights when he did not hold the required type rating and did not have the required proficiency checks" and that he acted deliberately because "'[h]e knew what he was doing. He was determined to do it.'". Based upon these facts, the Board stated that "the seriousness of the violations in this case counsel against a stay."

In reviewing this opinion, it seems to me that the Board's supposed case-by-case analysis of suspensions of six months or more is a bit misleading. If an airman's violation justifies a suspension of 180 days or more, the conduct is probably serious enough that the Board will deny a request for stay. Now, I haven't done a search of past NTSB cases to see just how many stays have been granted in cases with suspensions of 180 days or greater. However, the Board cites at least three cases in its decision in which a request for such a stay was denied. My guess is that few, if any, of those requests have actually been granted. Thus, it is more likely that the case-by-case analysis in reality results in a de facto denial. But, I guess it does sound better if the Board tells us that it is reviewing the facts, rather than stating outright that requests for stays of suspensions of 180 days or greater are automatically denied.

Posted by Greg

July 27, 2005

NTSB Affirms Revocation Of Aloha Airlines First Officer's ATP And Medical Certificates

As a follow up to my March 30, 2004 post in which I discussed an Aloha Airlines first officer's arrest for intending to operate an aircraft while under the influence of alcohol, the NTSB has affirmed the emergency revocation of the pilot's ATP and medical certificates. If you will recall, at the time of my post only limited information was available. The media reported that the pilot allegedly blew a .182 on the breathalyzer, well beyond the California state legal limit of .08 and the FAA limit of .04. Unfortunately, without more information it was difficult to disregard my skepticism of the media's objectivity and to arrive at a conclusion as to what had really happened. However, with the release of the NTSB's opinion, we now know the rest of the story.

In Administrator v. Poweleit the administrator issued an emergency order revoking the pilot's ATP and First Class medical certificates alleging that, on March 27, 2004, the pilot attempted to act as first officer on Aloha Airlines flight 441 from Oakland, California, to Honolulu, Hawaii, when he had a blood alcohol concentration of .182 and .179 according to Breathalyzer tests conducted at 9:14 a.m. and 9:16 a.m. After a two-day layover, the pilot missed the crew van to the airport despite repeated attempts by the captain to awaken or reach the pilot. The pilot then showed up at the airport 45 minutes later and was noted by the TSA checkpoint agents as having a strong odor of alcohol on his breath. The police were called and arrived at the gate to find the pilot in the jetway. When the police officer confronted the pilot, he observed that the pilot "smelled strongly of alcohol, was very nervous, had watery red eyes, and did not speak clearly." The pilot also stated that "he was 'working Ö flight 441 to Hawaii.'" After an extended attempt to hide in the aircraft's lavatory, the pilot was then escorted to the police station where he submitted to the breathalyzer tests.

At the hearing, the ALJ "found that the preponderance of the evidence established that respondent reported to the airport with the intent of fulfilling his assignment as the first officer of the flight." The ALJ also rejected the pilot's arguments that an affidavit from the captain submitted by the FAA was inadmissible and that the breathalyzer results were not reliable because the machine had not been calibrated within the time period established by California law.

On appeal, the Board also rejected the pilot's arguments that he did not attempt to act as a crewmember; that the law judge erred in admitting the captainís affidavit into evidence because respondent was thereby denied the opportunity to cross-examine him; and that the law judge erred in admitting the Breathalyzer test results because the machine was not calibrated as frequently as required by California law. The Board noted that the ALJ had sufficient evidence to find that the pilot intended to act as a crewmember even without the captain's affidavit. It also noted that the Board is not bound by California law regarding the testing/reliability of the breathalyzer test and that the evidence overwhelmingly supported the reliablity of the breathalyzer test results.

Although this is an unfortunate result for the pilot, it appears that based upon the evidence discussed in the opinion it is probably the right decision. What is more unfortunate is that these cases happen at all. Not only does it exhibit bad judgment on the part of some pilots, but it also allows the public's misperceptions regarding drinking pilots to persist. And make no mistake, the FAA has taken, and I believe will continue to take, a zero tolerance position regarding enforcement in these situations.

Posted by Greg

FAA Publishes New And Revised Sport Pilot and Light-Sport Aircraft Consensus Standards

The FAA today published a Notice announcing "the availability of certain new consensus standards and revisions to previously accepted consensus standards relating to the provisions of the Sport Pilot and Light-Sport Aircraft rule issued July 16, 2004, and effective September 1, 2004." ASTM International Committee F37 on Light Sport Aircraft developed the new and revised standards with FAA participation. According to the FAA, the new and revised "consensus standards satisfy the FAA's goal for airworthiness certification and a verifiable minimum safety level for light-sport aircraft." The Notice contains 8 new and 9 revised consensus standards acceptable for certification of the specified aircraft under the provisions of the Sport Pilot and Light-Sport Aircraft rule

Since the consensus standards are copyrighted by ASTM International, individual reprints of the standards (single or multiple copies, or special compilations and other related technical information) may be obtained by contacting ASTM at 100 Barr Harbor Drive, PO Box C700, West Conshohocken, PA 19428-2959, or at (610) 832-9585 (phone), (610) 832-9555 (fax), through service@astm.org (e-mail), or through the ASTM Web site at http://www.astm.org.

If you would like to submit comments on the consensus standards, you may send them via snail-mail to: Federal Aviation Administration, Small Airplane Directorate, Programs and Procedures Branch, ACE-114, Attention: Larry Werth, Room 301, 901 Locust, Kansas City, Missouri 64106 or via e-mail to: Comments-on-LSA-Standard@faa.gov. Comments must be received on or before September 26, 2005. ADDRESSES: Comments may be mailed

Posted by Greg

July 26, 2005

Denial Of Airman Medical Certificate Based Upon History Of Alcohol Abuse Affirmed By NTSB

In Petition of Niehens the NTSB affirmed an ALJ's dismissal of petitionerís challenge of the Administratorís denial of his application for an airman medical certification. The FAA had denied the petitioner's application claiming that he did not qualify because he had a history of alcohol dependence without satisfactory clinical evidence of recovery, as well as a history of alcohol abuse. The ALJ granted summary judgment to the FAA based upon the finding that the petitioner's two motor vehicle actions, when considered together, demonstrated alcohol abuse based upon petitioner's use of alcohol in a situation in which that use was physically hazardous.

The NTSB deferred to the Administrators interpretion of the regulatory language at issue in the case ("use of a substance in a situation in which that use was physically hazardous") "to include alcohol use, regardless of whether that use was illegal or resulted in a conviction, in a situation that involves operation of a motor vehicle." Based upon the FAA's interpretation, the Board rejected the petitionerís argument that the Administrator must show that he was legally intoxicated or mentally impaired by alcohol at the time of both motor vehicle actions that underlie the denial of his medical certification.

The Board noted that "the issue is not whether petitioner is or was guilty of criminally operating a motor vehicle while intoxicated, but, rather, whether a preponderance of the material, reliable and probative evidence sufficiently demonstrates that the Administrator had adequate justification for her medical determination that petitioner abused alcohol." It went on to find that both motor vehicle actions met the FAA's evidentiary burden and, based upon the FAA's interpretation of the regulations and the Board's required deference to that interpretation, the FAA's denial of petitioner's medical certificate was justified.

This case presents a good example of the uphill battle an airman faces in obtaining a medical certificate after multiple alcohol related motor vehicle actions. It is important to note that convictions for DWI/DUI are not necessary to justify a finding of disqualification. The obvious and often repeated moral of this story is to not drink and drive. This is even more important if an airman already has one DWI on his or her record. In either situation, it is simply not worth the risk.

Posted by Greg

July 25, 2005

Navigating The Repurcussions Of A Pilot's Second DWI

All pilots know, or should know, about the DWI/alcohol related offense reporting requirements of FAR 61.15(e). Simply put, if a pilot's driver's license is suspended or revoked for an alcohol related offense as defined in the FAR, he or she must report that action to the FAA. A first DWI will get the attention of the folks in Oklahoma City, but typically does not result in any repercussions. However, a pilot who reports a second DWI to the FAA can expect some problems. For more information, please read my latest article on the issue here.

Posted by Greg

July 22, 2005

Former America West Pilots Receive Prison Sentences

The judge has sentenced the two former America West pilots earlier found guilty by a Florida jury of operating an aircraft while intoxicated. The pilot was sentenced to five years in prison. The judge had no sympathy for the pilot, especially in light of the fact that the pilot had been on probation for an alcohol-related offense just months before his arrest. The first officer was was ordered to serve 2 1/2 in prison. When handing down the sentences the judge asked the defendants "What were you thinking?" and told them "What you did was absolutely wrong." You can read more about the sentencing here.

Posted by Greg

Security Training For DC ADIZ Operations To Be Required By FAA

According to AOPA, yesterday the FAA announced a new training program to educate pilots nationwide about the Washington, D.C., Flight Restricted Zone (FRZ), Air Defense Identification Zone (ADIZ), and other security-related airspace restrictions. "The proposal will require pilots to complete an FRZ/ADIZ and security TFR awareness training program or an FAA safety seminar. Pilots would need to make a logbook endorsement and would receive a completion certificate that they'd be required to carry with them during flights into the national capital region. Pilots living within 100 miles of the ADIZ would have 30 days to comply, while pilots elsewhere would be given 120 days."

The training requirements will be included in a Special Federal Aviation Regulation (SFAR) to be published in the Federal Register at some point in the future. However, the FAA has not indicated how soon this SFAR would be published. In connection with the SFAR, the FAA has also indicated it could increase civil penalties for violating the FRZ/ADIZ (currently $1,100.00 per violation for an individual). The FAA is also considering changes to certificate action sanctions for FRZ/ADIZ violations including raising the certificate suspension from 30 days to 120 days and revoking the certificates of repeat offenders.

Although this proposed rule appears less onerous than some of the other knee-jerk proposals such as prosecuting and imprisoning ADIZ violators, I question the need and the likelihood of the SFAR having much of an impact on ADIZ violations. Perhaps it will raise awareness. That is always a good thing. Time will tell.

Posted by Greg

July 21, 2005

8th Circuit Holds Air Charter Not Defamed By Statements Regarding Its FAA Record, History and Safety

In the case of Aviation Charter, Inc. v. Aviation Research Group/US, Aviation Charter alleged that ARGUS had defamed it by making certain statements in connection with ARGUS's assignment of a negative safety rating to Aviation Charter. The negative rating and associated statements were publicized by the Minneapolis Star Tribune in an article following the crash of an Aviation Charter flight in which Senator Paul Wellstone was killed. The district court granted summary judgment in favor of ARGUS finding that Aviation Charter had not demonstrated that ARGUSís statements were published with actual malice and that the statements were not actionable under the Minnesota Deceptive Trade Practices Act or the Lanham Act.

On appeal, the Eighth Circuit Court of Appeals affirmed the grant of summary judgment holding that ARGUS's comparison that "Aviation Charter, relative to other carriers of its size, has an unfavorable safety record" and the statements derived from that comparison were not "sufficiently factual to be susceptible of being proved true or false." The Court noted that ARGUS's comparison "is a subjective interpretation of multiple objective data points leading to a subjective conclusion about aviation safety." The Court also held that the balance of the alleged defamatory statements were not actionable under Minnesota defamation law.

For a more detailed analysis of the individual statements and ARGUS's comparison as it relates to Minnesota defamation law, I encourage you to read the Court's opinion here.

Posted by Greg

July 20, 2005

California Department Of Justice's "Operation Safe Pilot" Nets 40 Pilots Accused Of Fraud

Completing an 18 month investigation, the California Department of Justice has charged 40 pilots with lying to the FAA to fraudulently obtain medical certificates. Apparently the defendants were collecting disability benefits from the Social Security Administration based on serious medical and psychological conditions, which would have prevented them from operating an aircraft. However, they failed to disclose those disqualifying conditions on their airman medical applications and obtained airmen medical certificates as a result. Thirty of the pilots have been indicted on felony charges of making false statements to a government agency and face up to five years in prison and a $250,000 fine. The other ten pilots face misdemeanor charges of making and delivering a false official writing and are looking at up to a year in jail.

Now maybe its just me, but how stupid can you get. I know that usually the right hand of government doesn't know what the left hand is doing, but one thing both hands do is retain paperwork. It is one thing to fail to disclose a disqualifying medical condition to the FAA based upon a diagnosis by a private physician has an ethical obligation to maintain the doctor-patient privilege. I am sure this happens more than we would like to acknowledge and I can see how this situation is difficult for the government to discover.

But in this case you would think that the indicted pilots knew that the paperwork they completed to obtain their social security disability benefits was completely contradictory to the statements they made in their airman medical applications and should have realized that the government, granted different agencies within the government, had all of the paperwork. I suppose they figured that no one would ever compare the documents and that they wouldn't get caught. Seems like a big risk when you have voluntarily given the government the paperwork necessary to charge and convict you of a crime.

For more information on the results of Operation Safe Pilot, you can read the California DOJ's press release here.

Posted by Greg

July 19, 2005

A Pilot's Sunglasses Do More Than Just Make Him Or Her Look Cool

The FAA has published a new safety brochure (Publication No. AM-400-05/1) titled "Sunglasses for Pilots: Beyond Image." The brochure describes what a pilot should look for when purchasing sunglasses for aviation use. Topics include selecting the right lenses for flying, radiation, glare, new materials, frames and tints.

The brochure is available online here or you can order directly from the FAA at: FAA Civil Aerospace Medical Institute, Shipping Clerk, AAM-400, P.O. Box 25082, Oklahoma City, OK 73125, E-mail: Gail.Gentry@faa.gov, Telephone: (405) 954-4831.

Posted by Greg

FAA Issues Guidance For Operators Experiencing RVSM Delays

The FAA has issued guidance for situations in which an operator has not been able complete its RVSM monitoring requirements within the prescribed timeframe. An operator may apply for up to a three-month extension to schedule and complete its monitoring requirements if it has not completed its monitoring on time. The FAA determined that certain unavoidable circumstances warranted a grace period. The guidance has been provided to FAA FSDOs and is also posted on the FAA's RVSM Documentation web page under the "FAA Inspector Guidance" and "Monitoring Requirements and Procedures" sections.

Posted by Greg

TSA Publishes Interim Final Rule For D.C. Access

The TSA today published its Interim Final Rule for general aviation access to Ronald Reagan Washington National Airport. Although this is a step in the right direction, the "access" is severely limited and restrictive. In addition to onerous security measures set forth in the rule, general aviation operators using Ronald Reagan will have to pay the TSA $15 for the threat assessment TSA will conduct for each passenger and crewmember whose information the aircraft operator submits to TSA as part of the flight approval process, and $296 per round trip into and out of DCA to cover the costs of using TSA screening personnel and equipment at DCA and the gateway airports.

The rule is effective August 18, 2005 and TSA must receive any comments to the rule on or before September 19, 2005. Additionally, if you have questions regarding the rule, they can be addressed as follows: For policy questions, Robert Rottman, Office of Aviation Security Policy, Transportation Security Administration Headquarters, East Building, Floor 3, 601 12th Street, Arlington, VA 22202; telephone: (571) 227-2289; e-mail: Robert.Rottman@dhs.gov; For questions related to Sensitive Security Information (SSI), Keith L. Moore, Director, SSI Program Office, Office of the Chief of Staff, Transportation Security Administration Headquarters, East Building, Floor 7, 601 12th Street, Arlington, VA 22202; telephone: (571) 227-3513; e-mail: Keith.Moore1@dhs.gov; For legal questions, Scott Houston, Office of Chief Counsel, Transportation Security Administration Headquarters, East Building, Floor 12, 601 12th Street, Arlington, VA 22202; telephone: (571) 227-3653; e-mail: Scott.Houston@dhs.gov.

Posted by Greg

July 13, 2005

FAA Publishes Final Rule On Use Of Certain Portable Oxygen Devices Onboard Aircraft

Yesterday the FAA published a Final Rule on the "Use of Certain Portable Oxygen Concentrator Devices Onboard Aircraft". The rule creates a Special Federal Aviation Regulation (SFAR) which sets out the conditions under which aircraft passengers will be permitted to use certain portable oxygen concentrator (POC) devices on aircraft. The SFAR includes a POC preparation requirement for carry-on baggage transport, and a battery-packaging standard necessary for the safe carriage of extra POC batteries in carry-on baggage.

The SFAR allows the use of the AirSep Lifestyle or Inogen One Portable Oxygen Concentrator medical device units and no others. It is important to note that the SFAR does not require an aircraft operator to allow passengers to operate these devices onboard, but if an aircraft operator chooses to allow a passenger to operate these devices onboard the aircraft operator's aircraft the conditions in the SFAR must be met.

The SFAR becomes effective August 11, 2005. For further information, you should read the Final Rule in its entirety or you can contact David L. Catey, Air Transportation Division, AFS-200, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-3732.

Posted by Greg

July 05, 2005

The List Is Long....

Have you ever wondered exactly who the U.S. Government considers to be terrorists? Of course we have all heard about Al Qaida, the IRA and several of the other more commonly known terrorist organizations. However, these are but a few of the multitude of individuals and organizations that the U.S. government believes are engaged in terrorist activities. If you are curious, you can review a list published by the U.S. Department of Treasury last Friday in the Federal Register. The List, titled "Alphabetical Listing of Blocked Persons, Specially Designated Nationals, Specially Designated Terrorists, Specially Designated Global Terrorists, Foreign Terrorist Organizations, and Specially Designated Narcotics Traffickers", reflects the names of individuals and entities subject to the various economic sanctions programs administered by the Treasury's Office of Foreign Assets Control. The List is long and hardly distinguished. It includes the more "infamous" names, as well as many others, and makes for interesting reading. Lots of "a.k.a.'s".

Although I have not seen the government's "no-fly" list, I would expect to see the same individuals appearing on the U.S. Department of Treasury's list on the "no-fly" list as well. The List is current as of June 23, 2005.

Posted by Greg

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