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October 22, 2008

FAA Issues Policy Statement On Noise Standard For Civil Supersonic Aircraft

In a Statement of Policy published today in the Federal Register, the FAA provides guidance to would-be supersonic aircraft manufacturers regarding its expectations with respect to noise. The last FAA civil supersonic aircraft policy statement issued back in 1994 set Stage 3 as the standard for new type certificate applications. In 2005 the FAA adopted Stage 4 as the standard for applications for new airplane type design filed on and after January 1, 2006. Supersonic flight over the United States by civil aircraft has been prohibited by regulation since 1973.

In light of the current interest in developing civil supersonic aircraft to replace the retired Concorde, the FAA issued the Statement of Policy to provide notice to manufacturers. According to the Statement, the FAA indicates that "[w]e anticipate that any future Notice of Proposed Rulemaking issued by the FAA affecting the noise operating rules would propose that any future supersonic airplane produce no greater noise impact on a community than a subsonic airplane." Under this policy, the subsonic noise limit of Stage 4 will apply to the development of future supersonic airplanes operating at subsonic speeds. With respect to supersonic operation, the FAA indicates that appropriate noise standards "will be developed as the unique operational flight characteristics of supersonic designs become known and the noise impacts of supersonic flight are shown to be acceptable."

If you would like further information, you may contact Ms. Laurette Fisher, Office of Environment and Energy (AEE-100), Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267- 3561; facsimile (202) 267-5594; e-mail Laurette.fisher@faa.gov.

Posted by Greg

October 21, 2008

Failure To Disclose Misdemeanor Conviction On Medical Application Results In Revocation Of All Airman Certificates

Consistent with precedent, the Board recently affirmed an ALJ's grant of summary judgment to the FAA on an order revoking all of an airman's certificates for violation of FAR 67.403(a)(1) (prohibition against making fraudulent or intentionally false statements on an application for a medical certificate). In Administrator v. Martinez, the airman checked the "no" box for question 18w on the application for medical certificate, certifying that he had “no history of nontraffic conviction(s) (misdemeanors or felonies)." However, less than 8 months earlier the airman had been convicted of disorderly conduct, a misdemeanor.

When the FAA discovered the discrepancy, it issued an emergency order revoking the airman's commercial pilot, ground instructor, flight instructor, and medical certificates, as well as any other airman certificates held by the airman. The airman appealed the revocation and, upon motion by the FAA, the ALJ entered judgment against the airman and affirmed the FAA's revocation order. The airman then appealed the ALJ's decision to the full NTSB.

On appeal, the Board initially reviewed the law applicable to an intentional falsification case: The FAA must prove that an airman (1) made a false representation, (2) in reference to a material fact, (3) with knowledge of the falsity of the fact. It further noted that an applicant’s answers to all questions on the application for medical certificate are material. Applying the law to the case, the Board determined that the airman's answer to question 18w was false and material and the airman knew his answer was false.

With respect to the airman's defenses that he lacked intent to falsify and that he misunderstood the questions, the Board observed that failure to consider question 18w on a medical application carefully before providing an answer does not establish a lack of intent to provide false information. It further noted that lack of intent to provide false information is not proved by an airman's disclosure of the conviction to his employer. Similarly, the Board found that the two questions about traffic (18v) and other convictions (18w) are not confusing to a person of ordinary intelligence. It then concluded that the sanction of revocation was appropriate and consistent with Board precedent in falsification cases.

This case is neither unusual nor unexpected. The FAA takes a dim view of falsification cases and the NTSB supports this position. Although the sanction may appear extreme, after all the falsification was on an application for a medical certificate and did not relate to any other airman certificate, the FAA considers falsification evidence that an airman lacks the qualification to hold any airman certificate, medical or otherwise.

The result is unfortunate for the airman for a couple of reasons. First, disclosure of a disorderly conduct misdemeanor is, by itself, typically not disqualifying. Absent any other circumstances (e.g. involvement of alcohol or drugs, history of convictions etc.), if the airman had disclosed the conviction he probably would have still been issued a medical certificate. Second, the airman is now back to square one. If he wants to continue to fly, he will need to re-take written examinations and check rides. This case is a good example of why accurate disclosure on an application for medical certificate is necessary and, indeed, in the majority of situations is preferable to the consequences that can result from falsification.

Posted by Greg

October 17, 2008

FAA Must Submit Evidence To Support Sanction

In the absence of proof or explanation of the FAA's request for sanction in a recent case, the NTSB refused to defer to the the sanction imposed upon an airman and made its own determination of sanction. In Administrator v. Rice, the FAA was seeking to suspend an airman's ATP certificate for 90 days for allegedly violating FARs 61.3(c)(failure to have medical certificate in possession), 91.13(a)(careless and reckless), and 91.151(b)(VFR minimum fuel requirements). After a hearing, the ALJ found that the airman had violated the FARs as alleged by the FAA, but reduced the sanction to 75 days to account for the fact that the FAA had previously withdrawn a charge without reducing the original sanction it was seeking. The airman then appealed the decision to the full Board.

On appeal, the airman argued that the ALJ had erred in affirming the FAA's order and that the 75 day suspension imposed by the ALJ was arbitrary and contrary to Board precedent. With respect to the finding of violations, the Board affirmed the ALJ. However, with respect to the sanction imposed by the ALJ, the Board initially observed "that the Administrator did not introduce the sanction guidance table into evidence at the hearing, or otherwise provide convincing evidence of the rationale for the choice of sanction."

The Board then commented that "even on appeal, the Administrator provides no meaningful explanation of what range his sanction guidance table specifies for the violations at issue in this case, or, importantly, an explanation about how the facts of this case should be analyzed within the range of possible sanctions." The Board also noted that the ALJ's sanction determination was owed no deference because the ALJ had not provided any substantive explanation for how the 75 day suspension was calculated.

In the absence of any meaningful guidance from the FAA to apply to the specific facts of the case, the Board reduced the sanction to a 60 day suspension based upon precedent in fuel exhaustion cases and expired medical certificate cases and the fact that multiple violations were present in the case. The Board also chastised the FAA for failing to provide support for the sanction when it noted that "[i]n future cases, we encourage the Administrator to present evidence of the sanction guidance table, and evidence or argument addressed to the validity of choice of sanction in the context of the specific facts of each case. In the absence of such a record, we cannot defer to the Administrator’s sanction for we have no way to assess its validity."

I am actually a little surprised by the Board's willingness to determine sanction in this case. I would have expected the Board to simply remand the case back to the ALJ with instructions for the ALJ to provide an explanation of the sanction imposed in order for the Board to have a basis for reviewing that decision if it was appealed again. However, it is possible that the Board was sending a message to both the FAA and ALJs that they need to make a clearer record at the hearing if they want the Board to exercise any deference to their positions. As a result of this decision, at future hearings I would expect to see the FAA actually offer into evidence the applicable section(s) of the sanction guidance table and/or other guidance or policies in support of the sanction it is seeking to impose.

Posted by Greg

October 03, 2008

"Diagnosis" Of Psychosis Under The DSM-IV Not Required To Support Denial Of Application For Medical Certificate

In a recent NTSB decision, Petition of George Bruckert III, the Board held that the FAA does not need to show that an airman has been "diagnosed" with psychosis under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition ("DSM-IV"), rather than simply having a medical history or symptoms of psychosis, in order to be ineligible for a medical certificate. When the airman applied for his medical certificate, the FAA denied the airman's application based upon the airman's history of obsessive compulsive disorder, psychosis, chronic paranoia, major depression, and disabling personality disorder—conditions that render an applicant ineligible for an airman medical certificate under FAR Part 67. The airman then appealed the denial to the NTSB.

A hearing was held at which the airman had the burden of presenting sufficient evidence to prove that he was qualified to hold a medical certificate. The FAA also presented evidence supporting its denial of the airman's application. After hearing the evidence, the ALJ determined that the FAA had established a medical history or clinical diagnosis of a personality disorder or other mental condition that rendered the airman unable to safely perform the duties or exercise the privileges of the medical certificate for which the airman had applied. However, the ALJ also found that the FAA did not prove that the airman had a medical history or clinical diagnosis of a psychosis because he had not been "diagnosed" with psychosis under the DSM-IV. The ALJ then concluded that the airman had not satisfied his burden of showing that he met the mental standards for issuance of a medical certificate.

The FAA appealed the ALJ's decision that a finding of a psychosis under the FARs requires proof of a "diagnosis" under the DSM-IV. The FAA focused on Part 67's definition of psychosis which "refers to a mental disorder in which ... [t]he individual has manifested delusions, hallucinations, grossly bizarre or disorganized behavior, or other commonly accepted symptoms of this condition...." Of course the airman argued that he did not have an established history or clinical diagnosis of psychosis because there is no specific diagnosis of psychosis under the DSM-IV in his medical record.

Initially, the Board observed that the "voluminous airman medical file includes evidence of admissions to psychiatric facilities and numerous references to symptoms of psychosis, obsessive compulsive disorder, paranoia, major depression, and other significantly disabling personality disorders" and also showed that the airman took psychotropic medication for significant periods. In reversing the ALJ, the Board concluded that "[t]he applicable regulation requires petitioners to have no established medical history or clinical diagnosis of psychosis." Thus, since the airman had a medical history and symptoms of psychosis, a "diagnosis" of psychosis under the DSM-IV was not required.

This decision isn't surprising if you actually read Part 67's definition of "psychosis." And, under the circumstances, the result was going to be, and probably should have been, the same for the airman either way. Although the Board could have affirmed the ALJ's determination of ineligibility without addressing the issue of whether a "diagnosis" was required, this decision highlights the broad reach of the definition even in the absence of a "diagnosis" under DSM-IV.

Posted by Greg

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