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July 31, 2007

NTSB Rejects Mechanic's Voluntary Disclosure Reporting Program Defense

An individual mechanic's attempt to avoid enforcement action under the Voluntary Disclosure Reporting Program ("VDRP") was recently rejected by the NTSB in Administrator v. Liotta. In response to the FAA's allegations that the mechanic violated FAR 43.13(a), which the mechanic did not deny, the mechanic argued that his employer's report of the violations pursuant to the VDRP immunized him from enforcement action. After the ALJ issued his decision affirming the FAA's order of suspension, the mechanic appealed to the full Board, repeating his arguments that the FAA should not have pursued enforcement action against him based upon his employer's VDRP report.

In rejecting the mechanic's arguments, the Board first noted that it cannot review the FAA’s election to pursue an action against a particular individual, and not against others who may have played a role in the alleged violation. It then observed that the VDRP does not typically apply to individuals, but rather to entities, companies or carriers. However, the VDRP may provide immunity to employees or agents of an employing covered entity: (1) when the violation involves a deficiency of the employer’s practices or procedures; (2) when the individual inadvertently violates FAA regulations as a direct result of that deficiency; (3) when the individual or other agent immediately reports the violation to the employer; and (4) when the employer immediately notifies the FAA of the violation. Although the mechanic had the burden to show that all four requirements were met, unfortunately, the mechanic could only show that (4) was met.

The Board also observed that immunity may have been available to the mechanic pursuant to the Aviation Safety Reporting Program ("ASRP"). But, since the mechanic did not file the ASRP form, this immunity was not available to him either. The Board found that the mechanic's FAR violations were not a result, either directly or indirectly, of a deficiency in his employer's maintenance policies, if deficiencies actually existed. It went on to note that, if it were to conclude that the employer had no deficiency at all, the employer could not protect its employees by claiming responsibility for some deficiency in an effort to bring an employee under its VDRP "immunity umbrella."

The moral of the story: File those ASRP forms, often! It is quite possible that a timely ASRP filing could have waived the sanction against the mechanic in this case. However, you can't take advantage of the program if you don't file. For more information on the VDRP, you can read my article on the topic here. For more information on the ASRP, you can read more here.

Posted by Greg

July 26, 2007

FAA Establishes FSS Feedback Line

According to a Fact Sheet released yesterday, The FAA has established a toll-free number for pilots to call to provide feedback regarding their experiences with the services they have received from the flight service stations operated by Lockheed Martin. According to the Fact Sheet, the feedback line is being established "to make sure flight service stations operated by Lockheed Martin meet agency standards" and "[t]he information will be used by the agency to better monitor and manage Lockheed Martin’s performance levels."

When a pilot calls in to the line, he or she will be asked by an automated system to provide their name, date, time and location of the service involved, along with their aircraft identification number and a brief description (up to 3 minutes long) of what occurred . The comments will then be forwarded to Lockheed Martin for a response that must be provided to the pilot within 15 days. The number is 1-888-FLT SRVC, or 1-888-358-7782. Pilots can also provide feedback via e-mail to 9-AWA-ATO-SYSOPS-FS@faa.gov.

If you have had less than positive service from an FSS or have comments regarding the service you receive, this is your opportunity to provide feedback to the FAA.

Posted by Greg

July 25, 2007

FAA Approves Replacement Of Paper Charts With Electronic Charts For Part 91 Operations

On July 20, 2007 the FAA issued Advisory Circular AC 91-78 providing Part 91 operators "with information for removal of paper aeronautical charts and other documentation from the cockpit through the use of either portable or installed cockpit displays (electronic flight bags (EFB))." The AC applies to Part 91 operations including VFR and IFR flight, as well as preflight and post-flight activities. EFBs can now be used in lieu of paper reference material when the information displayed is the functional equivalent of the paper reference material and is current, up-to-date, and valid. The in-flight use of an EFB in lieu of paper reference material is the decision of the aircraft operator and the pilot in command and requires no formal operational approval as long as the AC's guidelines are followed.

However, the AC also recommends, but does not require, that Part 91 operators maintain a secondary or back-up source of the information in the cockpit. The back-up can be another EFB or paper copies of the charts. Although a second EFB may be cost prohibitive for many Part 91 operators, having back-up paper copies, even if they stay in the flight bag, is easy to do and good insurance. After all, most, if not all, electronic chart programs allow you to print copies of the charts.

The AC also addresses specific considerations that should be taken into account with respect to Class 1 (portable) and Class 2 (attached to a mounting device) EFB's, as opposed to Class 3 (installed in the aircraft) EFB's, and provides recommendations for implementation of EFB's into the cockpit. If you would like more information regarding the AC or the use of EFB's in the cockpit during Part 91 operations, you can contact the FAA's Commercial Operations Branch, AFS-820, at (202)267-8212.

Posted by Greg

July 24, 2007

DOT Clarifies Use Of Branded Materials By Charter Brokers On Part 135 Flights

The U.S. Department of Transportation (DOT) issued a document "regarding the propriety of an air charter broker requesting or requiring an air carrier to distribute 'crew cards' and certain types of 'branding materials' (e.g., napkins,brochures, pad and pens) bearing the name or logo of the air charter broker that arranged the flights." DOT regulations prohibit a charter broker from advertising, conducting or holding itself out in a manner that would lead the public to believe it is an air carrier operating the charter flight. Since charter brokers do not hold economic authority issued by DOT for operation of charter flights, violation of this prohibition could subject a charter broker to enforcement action for engaging in unfair and deceptive practices or an unfair method of competition.

According to DOT, "[t]he use of 'branding materials' is not, as a general matter, unlawful; however, the use of certain items could by themselves reasonably create the impression that the air charter broker is a direct air carrier (e.g., a brochure touting the broker’s 'fleet' or its 'charter flights,' or a napkin with a picture of an aircraft on it that bears the broker’s name or logo on the aircraft, or, as discussed below, a broker’s business card that identifies the bearer as a member of the 'flight crew'). In addition, the use of seemingly innocuous 'branding materials' could, under the totality of the circumstances, create the impression that the air charter broker is a direct air carrier (e.g., a situation where the air charter broker directs that only the air charter broker’s branding materials be evident on a flight, perhaps coupled with a demand that passengers not be told the name of the air carrier, even if each individual item, when viewed in isolation, did not create the false impression that the broker is a direct air carrier)."

This document is another example of the DOT's and FAA's continuing scrutiny of the interaction between air charter brokers and Part 135 air carriers. It also follows DOT's January 26, 2007 advance notice of proposed rulemaking in which it recommended that DOT require that charter brokers and Part 135 air carriers provide notice to charter customers identifying the direct air carrier and any broker involved in a flight. Although brokers and air carriers may disagree with DOT's position, at least they will know in advance how DOT will analyze these situations. Forewarned is fore-armed.

Posted by Greg

U.S. Court of Appeals Upholds New FAA Drug And Alcohol Testing Rule

The U.S. Court of Appeals for the District of Columbia has upheld the FAA's new mandate that anti-drug and alcohol testing programs apply to aviation maintenance contractors "at any tier." In Aeronautical Repair Station Association (ARSA) v. the Federal Aviation Administration (FAA), the ARSA challenged the new rule on the grounds that it impermissibly expands the scope of employees tested in violation of the unambiguous statutory language of section 45102(a)(1), the Administrative Procedure Act, 5 U.S.C. §§ 701-06, and the Fourth and Fifth Amendments to the United States Constitution. ARSA also alleged that the FAA violated the Regulatory Flexibility Act (RFA) by not properly considering the impact of its rule on small businesses.

The Court flatly rejected all of ARSA's arguments except the RFA allegation. In that regard, the Court determined that the contractors and subcontractors impacted by the new rule are regulated employers and the RFA therefore requires the FAA to consider the economic impact of the rule on the employers. The Court upheld the substance of the new rule as consistent with aviation safety, but remanded the rule back to the FAA for it to conduct the RFA analysis. It will be interesting to see what this analysis reveals and whether the analysis is significant enough to challenge a rule whose substance and validity have now been upheld by the Court. I am sure we will hear more from ARSA once the FAA's analysis is completed and disclosed. Stay tuned.

Posted by Greg

July 17, 2007

DOT Inspector General Testifies About Falsification Of FAA Airman Medical Certificate Applications By Disability Recipients

The Department of Transportation's Inspector General testified this morning before the U.S. House Committee on Transportation and Infrastructure, Subcommittee on Aviation regarding the issue of falsification of FAA airman medical certificate applications by disability recipients. The IG discussed efforts to mitigate the safety risks posed by airmen who falsify their Airman Medical Certificate applications to conceal disqualifying medical conditions including the FAA's Airman Medical Certification Program itself and the IG's joint investigation with Social Security Administration Office of Inspector General, Operation Safe Pilot, that resulted in convictions of 43 airman who omitted disqualifying medical conditions from their medical applications even though they were receiving social security disability benefits for those same conditions.

The IG also feels that the FAA can take several actions to ensure that disabled pilots are not circumventing the medical certification process. These actions include developing a matching process with the social security administration and other Federal disability providers and revising the airman medical application to include questions regarding whether the applicant has ever received or submitted a claim for disability benefits from any provider. Apparently the FAA is currently pursuing both of these options.

The IG also recommended that the FAA: (1) conduct "an education and outreach effort to ensure pilots are fully aware of their responsibilities for accurately disclosing their medical histories on the Airman Medical Certificate application and discussing their histories with AMEs during periodic medical examinations;" and (2) offer a grace period to hold harmless any pilots who self-identify to the FAA previously undisclosed and potentially disqualifying medical conditions to provide an incentive for airman to come clean and avoid the fines and other penalties associated with making false statements on a medical application. (This is similar to the program offered in the late 1980s to identify previously undisclosed drug or alcohol-related convictions). However, it is important to note that after such a disclosure, the FAA would evaluate the disclosed condition, and, unless the airman was found to be medically fit to fly, his or her medical certificate would be subject to revocation.

This issue has been, and will continue to be, a hot issue for the FAA. As I predicted, it appears as though Operation Safe Pilot type investigations will continue and, indeed, will eventually become part of the certification process. If you would like to read the IG's testimony in full, it is available here.

Posted by Greg

July 13, 2007

Submission To Request For Re-Examination Precludes Later Objection To Basis For Request

A mechanic recently lost his appeal of an emergency revocation order issued by the FAA after he submitted to, but failed, a re-examination of his qualifications to hold a mechanic certificate. In Adminstrator v. Montenegro, the FAA issued a request for re-examination to the mechanic. The mechanic submitted to the re-examination but failed the re-examination when he only received a score of 40%. The FAA then issued an emergency order revoking the mechanic's certificate. The mechanic appealed the order to the NTSB and the FAA then moved for summary judgment. In response to the FAA's motion, the mechanic challenged the basis for the re-examination request and claimed that his initial testing for his mechanic certificate was adequate and, therefore, he should never have been asked to submit to a reexamination.

In granting the FAA's motion, the ALJ reiterated Board precedent that once an airman has submitted to a reexamination, the only relevant question is whether the airman has successfully demonstrated his competence. Since no dispute existed as to whether the mechanic had failed to successfully demonstrate his competence, the ALJ granted the FAA's motion.

On appeal, the Board observed that the mechanic did not "1) identify any error in the law judge’s decisional order; 2) contest the statements made by Inspector Cunningham; 3) argue that any material facts remain in dispute; or 4) argue that revocation is an inappropriate sanction for a failure to successfully demonstrate competence." Likewise, the mechanic was unable to contest that he had failed the re-examination. As a result, the Board affirmed the ALJ's grant of summary judgment and the FAA's emergency revocation order.

Although it is unfortunate that the mechanic did not raise his objections to the re-examination request prior to submitting to the re-exam, as I have discussed in the past, such arguments are most often unsuccessful given the extremely low threshold the FAA must meet to justify a request for re-examination. Rather than spending time challenging a request for re-examination, in most cases it may be more prudent to spend the time, money and energy preparing for the re-examination.

For more information on requests for re-examination, you can read my article on the subject here.

Posted by Greg

July 12, 2007

NTSB Affirms Rejection Of Airman's Emergency Defense To Airspace Incursion

In a recent NTSB opinion, the Board rejected an airman's FAR 91.3 emergency affirmative defense and affirmed a 45-day suspension of an airman's commercial pilot certificate for his violation of FAR 91.129(c)(1) (requiring airman to establish and maintain two-way radio communication with ATC in Class D airspace). In Administrator v. Gibbs, the FAA alleged that the airman flew a helicopter into Class D airspace without first establishing communication with ATC and then failed to maintain two-way communications. At the hearing, the airman asserted that his conduct was unintentional and inadvertant because the weather created an emergency situation that resulted in his disorientation and entry into Class D airspace prior to communicating with ATC. However, the ALJ determined that it was clear the airman entered Class D airspace without establishing or maintaining two-way radio communications, and affirmed the FAA's order of suspension.

On appeal to the Board, the airman argued that his failure to declare an emergency did not diminish the authority vested in an airman under FAR 91.3 and, as a result, the alleged emergency situation, in and of itself, excused the violation. However, the Board disagreed. It initially noted that the airman had the burden of proof with respect to his defense and he needed to establish a causal connection between the emergency situation and the departure from the regulatory requirements of FAR Part 91. The Board also observed that an emergency situation caused by a PIC’s own actions does not excuse or justify departure from the regulations and FAR 91.3 does not relieve an airman from the duty to obey the regulations.

The Board then held that the evidence supported the airman's violation of FAR 91.129(c)(1). It also agreed with the ALJ's determination that any emergency that occurred was the result of the airman's own actions and the airman did not take appropriate steps to reduce the risk of an incursion. The Board concluded that the airman had not met his burden of proving that emergency conditions caused his lack of preparedness and awareness.

In this situation, it likely would not have mattered if the airman had declared an emergency. Both the FAA and the Board would still look at the totality of the circumstances to determine whether an emergency existed that was not the result of the airman's conduct. And even if an emergency existed, they would also still analyze the airman's conduct to determine whether it was reasonable under the circumstances. Thus, whether or not the airman declared an emergency, the analysis of the situation would remain the same.

Posted by Greg

July 10, 2007

FAA's Failure Of Proof Results In Dismissal Of Suspension Order Against ATP

The NTSB has affirmed an ALJ's dismissal of an FAA suspension order based upon the FAA's failure to offer sufficient evidence to support its claims. In Administrator v. Opat the FAA alleged that the airman violated FARs 91.7(a) (operating an aircraft in an unairworthy condition) and 91.13(a) (careless and reckless) when he flew a Gulfstream IV with the landing gear safety-wired and pinned in the down position without a ferry permit. Apparently the aircraft's landing gear light failed to illuminate during a preceding flight and, after the airman confirmed that the gear was down and landed the aircraft, the airman then instructed a mechanic to wire and pin the gear so he could fly the aircraft a short distance to an airport where the failure could be corrected. The FAA subsequently issued an order seeking a 90-day suspension of the airman's ATP certificate.

After a hearing, the ALJ dismissed the charges against the airman finding that the airman had "proceeded cautiously and obtained verification from experts that the aircraft was airworthy, despite the failure of the landing gear light and the fact that respondent had used gear pins to secure the landing gear." The ALJ also determined that the aircraft was safe for flight even though the airman did not ensure that the aircraft conformed to its type certificate. The FAA then appealed the decision to the full Board.

On appeal, the Board observed that the FAA bore the burden of proving by a preponderence of the evidence that the aircraft was in an unairworthy condition. It then noted that "the standard for airworthiness consists of two prongs: (1) whether the aircraft conforms to its type certificate and applicable Airworthiness Directives; and (2) whether the aircraft is in a condition for safe operation." In this case, the FAA had conceded that the aircraft was in a condition for safe operation despite the fact that the landing gear was wired and pinned in the down position.

With respect to the first prong of the test, the Board held that the record introduced by the FAA did not indicate that the aircraft, under the circumstances at issue in the case, did not conform to its type certificate. Noteably, the Board observed that the FAA only introduced the Type Certificate Data Sheet into evidence, rather than submitting the Type Certificate, in spite of the fact that the type certificate contained information about the landing gear, or information that would allow the Board to infer that the landing gear must be retractable.

The Board then concluded that "[w]ithout evidence that the aircraft’s type design requires that the landing gear be retractable, the record is insufficient for the Board to determine that respondent operated the aircraft when the aircraft did not conform to the requirements in its type certificate." The Board made it clear that it did not condone the airman's conduct and felt that the discrepancy should have been corrected or a ferry-permit obtained. However, the Board then pointed its collective finger at the FAA's counsel when it stated that it was "confident that, had the Administrator’s counsel introduced evidence concerning the actual type certificate with the type design that identified retractable landing gear as a major system or component, the Administrator would have met her burden of proof."

Based upon the Board's findings, it is pretty clear that the airman "lucked out" in this case. If the FAA's counsel had introduced the G-IV's type certificate and the supporting data and documentation that go along with it, the result would have been very different. However, sometimes you get lucky. I bet the airman is glad he chose to take the case to hearing.

Posted by Greg

July 03, 2007

Failure To Update Address With FAA Can Preclude Appeal Of Suspension Of Certificate

A recent NTSB decision illustrates the consequences a certificate holder may face if he or she fails to keep the FAA informed of the certificate holder's permanent address as required by FAR 65.21 (certificate holders must notify the FAA within 30 days of any change in permanent address). In Administrator v. Mazufri, the FAA sent letters to the mechanic on October 4, 2004 and July 5, 2005 addressed to the mechanic at his address of record. Both letters stated that the FAA had reason to question the mechanic's qualification to hold his mechanic certificate with airframe and powerplant ratings and requested that the mechanic submit for re-examination or otherwise provide evidence that he should not be subject to re-examination.

After receiving no response to either of its letters, on May 11, 2006 the FAA issued an emergency suspension order that suspended the mechanic's certificate pending his submission to re-examination and demanded that the mechanic surrender his certificate. The FAA sent the emergency suspension order to the mechanic's address of record via certified mail, regular mail and Federal Express. When the FAA again received no response from the mechanic, it conducted some additional investigation and discovered an address for the mechanic in a different city.

On March 5, 2007, the FAA sent a letter to the mechanic at the new address, along with a copy of the suspension order, advising that the mechanic's certificate was suspended and that he faced potential civil penalties of $1,000.00 per day if he refused to surrender his certificate. Subsequently, on March 14, 2007 the mechanic surrendered his certificate and included a letter that indicated that the mechanic had been living at the new address for seven years and he wished to appeal the suspension order. In response to the mechanic's request, the FAA filed its complaint on April 6, 2007, republishing and filing the May 11, 2006 emergency order of suspension as the complaint, and moved to dismiss the mechanic's appeal as untimely. After the ALJ granted the FAA's motion and dismissed the mechanic's appeal, the mechanic then appealed the decision to the full Board.

On appeal, the Board analyzed (1) whether the FAA actually or constructively served the mechanic with its order of suspension; and (2) if the FAA did serve the mechanic, whether the mechanic established that he had good cause for the untimely filing of his appeal. The Board found that the FAA did serve the mechanic because it sent the order of suspension to the mechanic's address of record. It also found that the mechanic's failure to inform the FAA of his change of address was not good cause and precluded him from successfully arguing that he never received proper service. As a result, the Board upheld the suspension order.

Although this case isn't novel, several items are interesting. One, given the low standard the FAA must meet in order to request re-examination (see my article on the subject here), even if the mechanic's appeal had been timely I seriously doubt whether it would have been successful. Another interesting aspect of this case is the length of time in which the case played out. Once the FAA had reason to doubt the mechanic's qualifications, it took the FAA over a year and a half to issue its suspension order. It then took another ten months for the FAA to track down the mechanic. During the entire time, the mechanic was, presumably, working as a mechanic and performing maintenance on aircraft. Doesn't say much for aviation safety if, as alleged by the FAA, the mechanic was truly not qualified to hold his certificate.

Finally, in a footnote to the decision, the NTSB observed that "the case at issue here is distinguishable from the facts of the cases in Administrator v. Lavigna, NTSB Order No. EA-5274 (2007); Yi Tu v. National Transportation Safety Board, 470 F.3d 941 (2006); and Jones v. Flowers, 547 U.S. 220 (2006)" because "the question answered here is not whether respondent received the mail at his permanent address, but whether respondent updated the address that he represented to the Administrator as the address where he could receive notifications regarding his certificate." Whether this was in response to an argument made by the mechanic based upon these cases, or simply of its own accord, the Board appears to be attempting to narrow, or at a minimum, to clarify the influence of these cases.

Posted by Greg

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