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July 21, 2006

FAA Continues On Its "Operational Control" Rampage

The fallout from the Darby case continues as the FAA today issued a Press Release indicating that it has revoked an air carrier's certificate for failing to exercise operational control and assessed a civil penalty against an air ambulance company for improperly exercising operational control. According to the FAA, American Flight Group allowed other operators to list their aircraft on its certificate for a fee and then the operators, rather than American Flight Group, exercised operational control over flights in those aircraft. This conduct violates the air carrier's obligation to exercise and maintain operational control over flights operated under its certificate pursuant to FAR 135.77

The air ambulance company, Medway Air Ambulance, Inc., was one of the operators who paid a fee to American Flight Group for listing its aircraft on the certificate and then operating flights in those aircraft. Medway and the FAA reached an agreement under which Medway would pay a civil penalty of $1,000,000.00 for operating as an air carrier without an air carrier certificate. FAA Administrator Marion Blakey warned in the Press Release that "[t]hese cases send a strong message that the FAA strictly enforces its safety regulations and will take action in situations where an air carrier is engaged in the franchising or rental of its air carrier certificate".

Although the FAA's proposed Operations Specification A008 addresses these types of situations and is supposed to clarify the issues for operators, it seems to me that this situation is adequately addressed in the current regulations and by existing precedent. I am not so sure that these types of operations will necessarily disappear with the issuance of a new OpSpec and I fully expect that these types of enforcement actions will continue in earnest. Stay tuned.

Posted by Greg

July 20, 2006

Untimely Filing Of Appeal By Airman Not Evaluated On Prejudice Standard

In Administrator v. Walkowicz the NTSB granted the FAA's motion to dismiss the airman's untimely appeal of an administrative law judge's written initial decision. In response to the FAA's motion, the airman's counsel argued that the untimely filing was due to "clerical error" and that the FAA was not prejudiced by the late filing. The NTSB rejected the arguments.

First, it noted that "clerical error", without further explanation of the nature of the actual error, does not amount to good cause for the untimely filing (In the absence of good cause, dismissal of an untimely filing of the notice of appeal is required by Board precedent and policy). Second, the Board held that lack of prejudice to the FAA does not constitute good cause for an untimely filing. The Board stated that "we do not evaluate untimely filings under a prejudice standard; rather, we uniformly apply a good cause standard".

This case is yet another example of the Board's strict adherence to the "good cause" standard in evaluating untimely filings. Certificate holders and their counsel need to understand and be aware of the deadlines for filing appeals in order to avoid finding themselves in the position of having to argue, and meet the high burden of proving, "good cause" for a delay.

Posted by Greg

July 19, 2006

Volunteer Pilot Organization Protection Act of 2006 Passes House

The Volunteer Pilot Organization Protection Act of 2006 has passed the House and will be taken up by the Senate. H.R. 1871 EH, as passed by the House, would grant a liability shield to "good Samaritan" pilots who fly public benefit missions, such as transporting patients or donated organs, and to the charitable organizations for which they fly. However, the liability shield only extends to risk above and beyond that covered by liability insurance which a pilot is required to carry.

The bill also requires the Attorney General to conduct a study on the availability of insurance to nonprofit volunteer pilot organizations that fly for public benefit to determine whether nonprofit volunteer pilot organizations are able to obtain insurance, the terms of such insurance if it is available and the impact on the associations' ability to operate if they are unable to obtain insurance. H.R. 1871 RFS has been referred to Senate committee for consideration.

This legislation will be a great benefit to organziations such as Angel Flight and Wings of Mercy. Although it doesn't provide blanket liability protection, it does protect pilots and organizations from the very real threat of liability exposure in excess of their insurance policy limits. Hopefully this will pass and act as an incentive to increase the number of pilots willing to participate in charitable flying.

Posted by Greg

July 13, 2006

Is "Careless" Different From "Reckless" Under FAR 91.13(a)?

In a footnote to a recent decision, the NTSB partially addresses a distinction that can be made between "careless" and "reckless" under FAR 91.13. The case, Administrator v. Hatch, involved allegations by the FAA that an airman had operated an aircraft when it was unairworthy and that his operation of the aircraft under the circumstances was "careless or reckless so as to endanger the life or property of another" in violation of FAR 91.13(a). After a hearing, Judge Geraghty affirmed the violations as alleged by the FAA. The airman then appealed the decision to the NTSB Board.

On appeal, the airman argued that Judge Geraghty erred in finding that the airman had operated the aircraft "recklessly" rather than finding that the operation was simply "careless". However, the airman did not appear to contest the finding that he had violated FAR 91.13(a).

In response, the Board noted that the airman presented "no argument regarding sanction, which, in light of the disjunctive language of the proscription within FAR section 91.13(a) –- i.e., careless or reckless –- appears to us to be the only reason why any distinction between careless or reckless is relevant to this administrative safety proceeding." It went on to find that, regardless of the airman's recklessness argument or even whether the airman was appealing the FAR 91.13(a) violation, the evidence was more than sufficient to, at a minimum, support a finding that the airman's operation of the aircraft was careless.

Although this decision seems to be saying that, for purposes of determining whether FAR 91.13(a) was violated, it does not matter whether the conduct alleged was "careless" or "reckless", so long as it was at least "careless," this would be contrary to Board precedent. According to Board precedent, a distinction is made: A finding of recklessness carries with it a considerably greater burden of proof than does a finding of carelessness and can be equated to gross negligence.

It appears that the inconsistency here may be the result of situations in which the FAA's complaint charges just "careless" or just "reckless" exclusive of one another, as opposed to arguing "careless" or "reckless" together, but in the alternative. In this case, both "careless" and "reckless" were alleged. At a minimum, it is clear from this case, and Board precedent, that a distinction between "careless" as opposed to "reckless" conduct is relevant in the context of determining the appropriate sanction for a violation of FAR 91.13(a).

Posted by Greg

July 10, 2006

NTSB Affirms Dismissal Of Untimely Appeal

In yet another case in a long string of cases, the NTSB has affirmed an administrative law judge's dismissal of an airman's untimely appeal of an FAA order of suspension. In Administrator v. Sepulveda, the FAA sent a Notice of Proposed Certificate Action ("NPCA") to the airman proposing to suspend the airman's certificate. The airman did not respond to the NPCA and the FAA then issued an order suspending the airman's certificate for forty five days. Although the airman appealed the order, he filed his appeal with the NTSB three days late. The administrative law judge subsequently granted the FAA's motion to dismiss the airman's appeal based upon the untimely filing.

On appeal to the full NTSB Board, the sole issue was whether the airman had shown "good cause" for his untimely filing. In rejecting the airman's appeal, the Board stated that "[h]aving kept his father’s address as his official address on file with the FAA while he apparently was living elsewhere, he was obliged to check that address for FAA mail, especially since a Notice of Proposed Certificate Action had been sent to him. The situation that caused the delay in respondent’s becoming aware of the Order of Suspension was of respondent’s own making."

This isn't the first time an airman has argued that an untimely appeal was the result of the airman's designation of his or her parents' address for FAA purposes. It is also not the first time that the Board has rejected this argument. Although the practice of designating an official address with the FAA that may not be where the airman spends a great deal of time is fairly common, airmen who do so need to take steps to ensure that they are promptly notified of any mail from the FAA. The NTSB will not consider any delay in receiving or responding to mail from the FAA due to untimely receipt of the mail from the airman's parents' address supported by good cause.

Posted by Greg

July 07, 2006

You Never Know When The FAA May Be Watching

A recent NTSB case reveals an FAA enforcement action against an airman that resulted from an FAA air safety investigator's chance drive past an airport at the time the airman was landing. In Administrator v. Schwandt the inspector was driving by an airport and observed the airman make a 60° pitch approach and then pull up at a 60° angle and make a 90° "knife edge" bank after which the aircraft then came around in the flight pattern and landed. However, he did not see the aircraft when it was very close to the ground because it was obscured by trees and structures. Although the airport was not the inspector's destination, the inspector diverted to the airport and spoke with the airman. According to the inspector, the airman acknowledged that the maneuvers he had performed were not necessary for normal flight and then stated: "it’s been a long, wet spring and this is our chance to get out and fly." As you might guess, an enforcement action followed.

The FAA issued an order alleging that the airman had violated FAR's 91.119(c)(minimum safe altitudes), 91.303(c), (d), and (e)(aerobatic flight), and 91.13(a)(careless and reckless) and seeking to suspend the airman's airline transport certificate for 180 days. After a hearing, Judge Mullins affirmed the violations as alleged by the FAA, but reduced the sanction from 180 days to 90 days. The airman then appealed to the full NTSB Board.

On appeal, the airman argued that the inspector's testimony was not credible because the airman was not aware prior to the hearing that the inspector would testify as to the 90 degree and 60 degree banks and because the FAA did not provide any supporting testimony from other witnesses. He also argued that the inspector either misperceived the attitudes of the aircraft or misrepresented them and that he did not make the admission claimed by the inspector.

The Board rejected the airman's arguments. It first held that the airman's failure to interpose "a well framed discovery request" seeking the inspector's intended testimony, which the airman could have given to the FAA, could not form the basis for appeal of the decision. It also noted that the FAA's failure to call any witnesses with testimony supporting the inspector was not required because "[i]t is the Administrator’s choice in her discretion as to how she chooses to prosecute the case." Finally, the Board held that the inspector's testimony proved the FAA's case and the airman could offer no valid reason why Judge Mullins' crediting of the inspector's testimony was arbitrary or capricious.

I suspect, as Judge Mullins probably suspected, that it is quite likely that the airman was doing something unusual to attract the inspector's attention and convince him that he needed to deviate to the airport to investigate. Whether the airman actually flew the aircraft in a manner as testified to by the inspector truly boiled down to a credibility determination between the airman and the inspector. Unfortunately for the airman, he was neither able to introduce evidence beyond his own testimony to counter the testimony of the inspector nor was he able to sufficiently discredit the inspector's testimony.

Posted by Greg

July 05, 2006

FAA Proposes Special Awareness Training for the Washington, DC Metropolitan Area

The FAA today published a Notice of Proposed Rulemaking proposing that VFR pilots operating within 100 nautical miles of the Washington, DC VHF omni-directional range/ distance measuring equipment (DCA VOR/DME) be required to obtain special awareness training. According to the FAA, the NPRM is intended "to reduce the number of unauthorized flights into the airspace of the Washington, DC Metropolitan Area ADIZ and FRZ through education of the pilot community."

Under the NPRM, a new FAR Section 91.161 would be added requiring that any person who flies an aircraft under VFR within a radius of 100 nautical miles of the DCA VOR/DME receive the special awareness training before operating in that area. This requirement would apply to any person operating an aircraft under VFR within a 100-nautical mile radius of the DCA VOR/DME regardless of the type of operation (e.g. Part 91, 125, 135 etc.), the type of pilot certificate held (e.g., sport, recreational, student, private, commercial or foreign) or where the flight originated. This requirement would not apply to IFR operations in that area, or if an emergency is declared by a pilot, as described under FAR 91.3(b), or if a failure of two-way radio communications is experienced when operating under IFR as described under FAR 91.185. Additionally, persons flying an aircraft in a U.S. Department of Defense/U.S. military or law enforcement operation, or for an approved aeromedical operation would be exempt from this requirement while engaged in those operations.

The NPRM also discusses procedures for completing the training, which is already available on the FAA's web site and is free. The special awareness training would be a "one time only" requirement. The training focuses on the procedures for flying in and around the Washington, DC Metropolitan Area Defense Identification Zone (ADIZ) and the Washington, DC Metropolitan Area Flight Restricted Zone (FRZ).

Comments on this NPRM must be received by September 5, 2006.

Posted by Greg

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