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February 28, 2008

FAA Publishes Final Rule Changing Airman Certification And Aircraft Registration Requirements

In a Final Rule published today in the Federal Register, and effective March 31, 2008, the FAA is implementing changes to its airmen certification and aircraft registration requirements. According to the Rule, two years after the Rule becomes effective, an airman will no use a paper pilot certificate to exercise piloting privileges. Five years after the rule becomes effective, an airman with any other types of paper airmen certificates (e.g. flight engineers and mechanics) will no longer be allowed to use those paper certificates to exercise the privileges authorized by those certificates.

All airmen will be required to upgrade their paper certificates to counterfeit-resistant plastic certificates by the applicable dates. However, student pilot certificates, temporary certificates, and authorizations are not affected. Note that the Rule does not revoke or otherwise cancel a paper certificate, but rather requires that the pilot have the plastic certificate to exercise the attendant privileges after the effective date. Also, an airman holding a paper pilot certificate will not need to surrender the paper certificate when getting the new plastic certificate.

With respect to aircraft registration, anyone transferring ownership of a U.S.-registered aircraft will have 21 days from the closing of the transaction (e.g. conveyance of title) to notify the FAA Aircraft Registry. Also, applicants will need to include their printed or typed name with their signature. This "printed name" requirement isn't new, but will now be a formal regulation: The Registry already includes this requirement in the instructions for completing the aircraft registration application and currently rejects an application if it is not completed or if the name and signature on the application are not the same throughout.

According to the Rule, "[t]hese changes are responsive to concerns raised in the FAA Drug Enforcement Assistance Act. The purpose of the changes is to upgrade the quality of data and documents to assist Federal, State, and local agencies to enforce the Nation's drug laws." If you would like further information regarding the Final Rule or the changes implemented by the Final Rule, you may contact John Bent, Civil Aviation Registry, Mike Monroney Aeronautical Center, 6500 South MacArthur Boulevard, Oklahoma City, OK 73169, telephone (405) 954-4331.

Posted by Greg

February 27, 2008

Cathay Pacific Airways' Chief Pilot Terminated For B-777 Fly-By

According to an AP Article on CNN.com, the chief pilot for Cathay Pacific Airways has been terminated for a fly-by he performed in connection with delivery of a B-777 from Boeing to Cathay Pacific Airways. The article indicates that the pilot departed Paine Field and received approval from the tower for the fly-by. However, the pilot apparently did not receive approval from Cathay Pacific for the maneuver, although the airline had granted approval for similar fly-bys in the past. The airline initially suspended the pilot and later, after video of the fly-by was posted on YouTube and other sites, the pilot was terminated.(The original video was removed from YouTube, but you can see video of the fly-by here.

The article also indicates that the FAA is investigating the incident. It will be interesting to see whether the pilot did, in fact, have FAA approval for the fly-by maneuver. In the event that he didn't, it is likely that the FAA would pursue enforcement action against the Hong Kong based British pilot if he holds FAA airman certificates. If he does not, it is possible that the FAA could pursue a civil penalty action against the pilot. The FAA could also potentially pursue a civil penalty action against the airline. However, that may be more difficult based upon the airline's position that it did not approve or otherwise authorize the fly-by. If the fly-by was approved by the FAA tower personnel, then the pilot's termination would appear to simply present an employment issue rather than a regulatory violation. And, of course, opposing arguments are being asserted as to whether the fly-by presented a safety issue, regardless of whether the maneuver constituted a regulatory violation.

I suspect that most pilots have dreamed or thought about performing a fly-by in some type of aircraft at some point in time during their flying careers: low level flight, heightened sense of speed, and the display of piloting prowess all come to mind as possible motivators. As with most important decisions in life, pilots have to weigh the risks/consequences associated with such a maneuver versus the benefit the pilot will receive to determine whether it is worth it because, at the end of the flight, the pilot will have to live with the results of his or her decision.

Posted by Greg

February 26, 2008

"Girls Gone Wild" Fly-Bys Result In 150-Day Suspension Of ATP Certificate

In a recent case, Administrator v. Sumler, the NTSB affirmed a 150-day suspension of an airman's ATP certificate for three fly-bys in a Gulfstream II jet. According to the FAA, the airman made two low passes just off the shore of Mokuleia Beach, Hawaii and a low pass down the runway at Dillingham Airfield, Hawaii with gear and flaps retracted in violation of FARs 91.13(a) (careless and reckless), 91.119(b) (minimum safe altitudes), and 91.515(a)(1) (flight altitude rules). As a result, the FAA issued an order suspending the airman's ATP certificate for a period of 180 days. The airman then requested an evidentiary hearing before an NTSB ALJ.

After hearing the testimony of witnesses and reviewing a DVD recording of the airman's aerial maneuvers that was recorded for use in marketing "Girls Gone Wild" videos, the ALJ found that the airman had violated the FARs as alleged by the FAA. He specifically determined that the area in the vicinity of the airman's low-level maneuvers constituted an open air assembly of persons and concluded that the airman intentionally flew a low pass down the runway for purposes other than landing or flying a practice approach. The ALJ also rejected the airman's request for a waiver of sanction for filing an Aviation Safety Reporting Program (ASRP) report, because the airman's acts were not inadvertent. However, the ALJ did reduce the suspension from 180-days to 150-days.

On appeal, the airman argued that the ALJ erred in finding that his purported low flight over the runway was not performed in connection with landing; and (2) concluding that the maneuvers over the beach were conducted over an open air assembly of persons. Not surprisingly, the Board rejected the airman's arguments and held that "it is abundantly clear that respondent operated his aircraft at an excessively low altitude in his two passes over Mokuleia Beach, and again during his level flight down Runway 8 which was not for the purpose of a practice approach or missed approach, but, rather, simply a low pass for the purpose of the filming activities. The record clearly establishes that respondent’s aircraft, a large business jet, was actually flown approximately 100 feet above the surface of both the water off Mokuleia Beach and Runway 8 at Dillingham Airfield. Respondent’s maneuvers, as depicted in the video and testified to by the Administrator’s witnesses, were clearly reckless and apparently intended to provide exciting footage for the “Girls Gone Wild” film crew."

With respect to the airman's ASRP argument, the Board noted that "ASRP sanction immunity is not appropriate for intentional maneuvers; there is absolutely no evidence in this record that respondent held a reasonable belief that he was authorized by FAA personnel to maneuver his aircraft as he did." In pointed concurring statement, Board member Cheleander observed that "as a former military aviator, military aerial demonstration team member, and 15-year commercial airline professional, I feel obligated to comment that the record in this matter overwhelmingly demonstrates respondent’s egregious disregard for the safety of his aircraft, those persons on board, and the property and people on the ground when he deliberately maneuvered his aircraft in a reckless manner. I am convinced by the record before me that respondent to this day fails to appreciate the degree of risk in the maneuvers he undertook and in the manner in which he executed them." He then went on to indicate that he would have reinstated the 180-day suspension if the FAA had appealed the ALJ's reduction in sanction.

I haven't seen the video, but it seems to me that the video evidence alone would be pretty hard to rebut under these circumstances and likely overshadowed any evidence the airman presented to the contrary. The fly-bys were probably fun at the time. However, the question in hindsight is: Were they worth it?

Posted by Greg

February 19, 2008

Airman Receives 230-Day Suspension For Operating Helicopter After A Wire Strike

The NTSB recently affirmed an ALJ's initial decision to suspend an airman's commercial pilot certificate after he operated a Bell 206B helicopter after its vertical stabilizer and tail rotor blades sustained damage from a wire strike. In Administrator v. Martz, the case arose from two flights: one from Mexico to San Diego and the other originated and terminated in San Diego. The FAA alleged that the damage sustained by the helicopter from the wire strike rendered it un-airworthy. As a result, the FAA asserted that the airman violated FARs 91.7(a) (operating an aircraft in an un-airworthy condition), 91.13(a) (careless and reckless), and 91.405(a) (operator must inspect aircraft and have discrepancies repaired) during the two flights in question. The FAA was seeking a 270 day suspension of the airman's certificate. After a hearing, the ALJ issued a decision suspending the airman's certificate, but reducing the sanction from 270 to 230 days. The airman then appealed the decision to the full NTSB.

On appeal, the airman argued that the ALJ erred when he concluded that the aircraft did not conform to its type certificate; that qualified maintenance personnel never declared that the aircraft was un-airworthy; and that even if the aircraft were un-airworthy, respondent legitimately relied on others’ opinions regarding the aircraft, and therefore did not have any reason to know that the aircraft could be un-airworthy. The Board initially observed 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" and "the term 'airworthiness' is not synonymous with flyability." The issue is "whether the operator knew or should have known of any deviation in the aircraft’s conformance with its type certificate."

Applying this standard, the NTSB agreed with the ALJ's finding that the airman was clearly aware that the aircraft was not in a condition safe for flight (e.g. the airman was aware of the nicks in the stabilizer and tail rotor blades and he applied duct tape to the nicks in the stabilizer before departing; the airman asked his passengers to exit the aircraft after he inspected it; the airman had other aircraft accompany him on both flights as a safety precaution; and a mechanic replaced the vertical fin and tail rotor blades on the aircraft after the flights in question). The Board also rejected the airman's reasonable reliance argument because the airman did not seek a professional opinion on the airworthiness of the aircraft, which would have been reasonable. Rather, he asked for opinions of people who happened to be in the vicinity of his aircraft, which was not reasonable. Based upon the evidence presented, the Board affirmed the ALJ on all counts.

Although duct tape is great for fixing a lot of things, it probably wasn't a great idea in this case. Not only was it a dead give-away to anyone looking that the helicopter had a problem, but it didn't fix the problem. Under the circumstances, the suspension is probably a mild sanction when compared to the potentially permanent (fatal) consequences of an in-flight failure of the damaged components.

Posted by Greg

February 18, 2008

DOT Releases SIFL Rates For First Half Of 2008

The U.S. Department of Transportation has released the Standard Industry Fare Level (SIFL) rates for the six-month period from January 1, 2008, to June 30, 2008. These rates are needed in order to apply the IRS's aircraft valuation formula to compute the value of non-business transportation aboard employer-provided aircraft and impute the income of the employee as required by the Internal Revenue Service Rules Section 1.61-21(g). The SIFL rates for the six-month period from January 1, 2008, to June 30, 2008, are: 0500 miles $0.2180 ; 501-1,500 miles $0.1662; over 1,500 miles $0.1598; and Terminal Charge of $39.86.

If you are an employer and an employee or a non-employee guest or family member is flown on your aircraft, the flight is potentially taxable to the individual receiving the ride. The aircraft valuation formula applies on a per-flight, per-person basis and will be calculated using the distance in statute miles from where the individual boards the aircraft to where the individual deplanes.

Posted by Greg

February 06, 2008

FAA's Alleged Failure To Schedule Flight Checks Does Not Excuse Subsequent Operation Of Aircraft

In Administrator v. Lackey, the FAA issued an order suspending the airman's commercial pilot certificate based upon the airman's operation of five flights allegedly in violation of FARs 135.293(a) and (b) (annual written/oral testing and competency check requirements), 135.299 (annual flight check requirement) and 91.13(a) (careless and reckless). The airman requested a hearing and submitted an answer in which he admitted the allegations, but asserted that his operation of the aircraft was excused by his miscalculation of the deadline for completion of the required flight checks and by the FSDO's failure to schedule him for the appropriate flight checks despite his requests. Prior to a hearing, the ALJ granted the FAA's motion for summary judgment based upon the airman's admission of the FAA's allegations, but reduced the sanction to 110 days based upon the airman's claimed miscalculation and efforts to schedule the flight checks. The airman then appealed the decision to the full NTSB.

On appeal, the airman again argued that his operation of the aircraft in the absence of fulfilling the flight check requirements was excused due to the FAA's actions. The Board rejected this argument and held that the airman's excuse, even if true, did not explain or justify his subsequent operation of the aircraft without having completed the requisite flight checks and testing obligations. The Board also noted that "if a FSDO refuses to schedule a necessary flight check, an airman must seek relief against the Administrator independently of the Board" because "the Board may only review the denial, amendment, modification, suspension, or revocation of a certificate" and it does not have the authority to force the Administrator to take certain actions.Based upon the airman's admissions, the Board the ALJ's decision.

This result is not at all surprising to me. Personally, I find it difficult to understand why the airman would continue to operate when the airman knew he wasn't current. And, as the opinion shows, neither the FAA nor the Board cares why you are not current. If you are not current, it is most likely they will find that you are in violation of the applicable regulations.

Posted by Greg

February 04, 2008

NTSB Rejects Airman's Statute Of Limitations Defense In 5-Year Old Case

The NTSB recently issued a decision in which it addresses, but does not necessarily clarify, the requirements for asserting a statute of limitations defense under 28 U.S.C. 2462. In Administrator v. Rex, the FAA alleged that the airman violated FAR 91.13(a) (careless and reckless) during a 1999 incident in which the airman allegedly "started the engine of the aircraft with two individuals standing next to the cockpit door, began to taxi without ascertaining whether they were clear of the aircraft, and knocked them to the ground when the tail of the aircraft hit them." Within 6 months of the incident, the FAA issued a Notice of Proposed Certificate Action ("NPCA") proposing a 300 day suspension of the airman's Airline Transport Certificate for the alleged violation. The FAA did not actually issue its order until July, 2005 and then did not file its order as the complaint until December 2006.

The airman raised the laches and "stale complaint" defenses in his answer, but did not raise the defenses again until closing argument. At that point, the ALJ rejected the arguments based upon a lack of prejudice shown by the airman and, after a hearing, affirmed the FAA's order of suspension. (It is unclear from the decision whether the ALJ actually ruled on the stale complaint defense as set forth in 49 U.S.C. 821.33, which was technically not available because the NPCA was issued within 6 months, or whether he simply ruled on the laches argument.) The airman then appealed to the full Board.

On appeal, the airman renewed his laches defense and also argued that Section 2462 precluded the FAA's order. Section 2462 states that "an action, suit or proceeding for the enforcement of any ... penalty ... pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued...." Of course, the FAA argued that the suspension was not a penalty. However, based upon Coghlan v. NTSB (a case addressing a similar argument under Section 2462 in a revocation proceeding) the Board cautioned the FAA "that an action such as a suspension of an airman certificate, as opposed to a revocation based on lack of qualifications, may be considered to be a 'penalty' for purposes of 28 U.S.C. § 2462.13."

Unfortunately, the Board then avoided the issue by finding that even if the suspension of the airman's certificate was considered a penalty for the purposes of Section 2462, the defense would still fail because the airman had not shown prejudice. Although the airman complained that he was prejudiced by the loss of "exculpatory evidence" due to the delay, he was unable to specify any details about the information lost or how it would have changed the outcome of the case. Finally, the Board then took the opportunity to comment on the FAA's delay when it stated that "[a]lthough we do not sit in judgment on the Administrator’s exercise of his [] powers, we feel constrained to comment that unexplained, lengthy delays in proceeding against an airman the Administrator eventually determines must be grounded [] are not likely either to advance the public interest in air safety or to inspire public confidence that an extraordinary power is being administered responsibly."

It is unclear from the case why it took so long to go to hearing, although apparently both criminal and civil litigation resulted from the incident that may have had some impact on the timing of the case. However, the case is somewhat instructive with respect to the Section 2462 defense. It appears that the statute of limitations defense "may" be available in an action seeking suspension, as opposed to revocation, of an airman's certificate. Unfortunately, the case doesn't particularly clarify what showing of prejudice will be required of an airman asserting the defense. I guess we will have to wait and see how/whether the Board addresses this issue the next time it is raised by an airman.

Posted by Greg

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