Gregory J. Reigel
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June 29, 2009

Disputing An Aircraft Mechanic's Lien

A client recently called in the middle of trying to sell his aircraft. Apparently the buyer received a title report that disclosed a mechanic's lien recorded against my client's aircraft. My client was surprised, to say the least. He believed that the mechanic's lien was improper and wanted to know what he could do about it.

The situation in which my client found himself was not unusual, especially in the current economy. However, an aircraft owner in his position isn't without options. For a discussion of some of the remedies available for dealing with this type of problem, please read my latest article on the topic here

Posted by Greg

June 10, 2009

FAA Releases Pilot Flight Time, Rest And Fatigue Fact Sheet

The FAA today released a Pilot Flight Time, Rest and Fatigue Fact Sheet. The Fact Sheet provides an overview of the existing regulations relating to duty and rest time, as well as a summary of the FAA's recent activities relating to dealing with the issue of fatigue. The Fact Release also states that "[w]hile the current FAA rules are fundamentally sound and have contributed to an excellent safety record, fatigue remains a very real aviation safety issue. The FAA is interested in any new fatigue research that would assist the agency with enhancing its rules and that promotes industry best practices for fatigue risk management."

I am not sure why the FAA released this Fact Sheet. It doesn't provide any new information nor does it suggest that any new regulations or policies addressing fatigue are imminent. Apparently the FAA just wants everyone to know that it still considers fatigue an issue and that it is continuing to analyze the issue in order to ensure that fatigue does not compromise the safety of flight operations. In other words, status quo for now, but don't rule out a notice of proposed rulemaking on the subject of fatigue in the future.

Posted by Greg

TSA Releases List Of Airports With Commercial Service Subject To SD-8G

According to an EAA News Release, the TSA has released a list of U.S. airports that have commercial (airline) flight service and are subject to SD-8G. (The list is available on EAA's website here) A total of 454 airports are potentially impacted by SD-8G. However, since each individual airport is responsible for its own implementation of SD-8G, it is unclear how many of these airports have, in fact, implemented SD-8G and, if they have, to what extent. As a result, if you are planning a flight that includes one of these airports as a destination, you need to thoroughly investigate the status of the implementation before taking off, including calling the airport or an FBO located at the airport to find out the airport’s security requirements.

Posted by Greg

June 09, 2009

Sex In Helicopter Results In Revocation Of Helicopter Pilot's Certificate

As many of you are probably aware, a helicopter pilot recently had his airman certificate revoked for participating in a sex act while he was operating a helicopter over a populated area. The incident gained its notoriety from the edited video that was released over the internet showing the pilot's passenger, an adult entertainment star, performing oral sex on the pilot while he was flying the aircraft. Of course, when the FAA saw the video enforcement action followed soon thereafter. In Administrator v. Martz, the FAA issued an emergency order of revocation revoking the pilot's certificate for his alleged violation of FAR 91.13(a) (careless and reckless). The pilot appealed the emergency order to the NTSB and, after a hearing at which the unedited version of the video was shown, Administrative Law Judge Mullins affirmed the FAA's emergency revocation order.

ALJ Mullins determined that the sex act had occurred and "while both the passenger and respondent had lap belts and shoulder harnesses unlatched, while respondent’s clothing during the performance of the sex act risked interfering with the helicopter’s controls, and while the passenger was in a position to interfere with the helicopter’s controls, all of which occurred as respondent was operating the helicopter above a populated area." The ALJ also noted that the pilot had been involved in previous enforcement actions and revocation of the pilot’s certificate was the appropriate sanction under the Sanction Guidance Table.

The pilot then appealed the ALJ's decision to the full Board. He argued that his conduct did not amount to "gross recklessness", that the ALJ improperly admitted medical testimony, that the Sanction Guidance Table does not provide for revocation under the facts of the case and that the pilot did not lack the qualifications necessary to hold an airman certificate.

First, the Board recounted the ALJ's factual findings regarding the sexual act and the potential interference with operation of the helicopter that could have resulted. It then affirmed the finding of "gross recklessness" and observed that the pilot's argument against "gross recklessness" "seems to ignore not only the risks he took on the flight in question, but ignores the laws of physics as well." Even though the flight was never actually in danger, the FAA only had to show potential endangerment to prove that the helicopter was in a careless or reckless manner. The Board then concluded that "during substantial portions of the flight in question, it appears to this Board that the flight was but a single misstep from disaster."

Next, the Board rejected the pilot's argument that the ALJ improperly admitted the testimony of an inspector who testified that the pilot would have been distracted or could have incorrectly manipulated the controls of the helicopter in the event of a "biological reaction" to the "activities during the flight". The Board held that the pilot had not shown how the testimony was prejudicial and then observed that even without the inspector's opinion, "we would expect our judges to be able to assess the evidence on videotape and apply judgment, common sense, and their understanding of common events to the circumstances." (Although, perhaps presumptuous, the Board's expectation regarding an ALJ's "understanding of common events" is also humorous and, I suspect, made ALJ Mullins laugh.)

The Board also rejected the pilot's argument regarding whether revocation was the appropriate sanction under the Sanction Guidance Table. In deferring to the Table, the Board noted that the Table clearly provided for revocation for grossly reckless or careless conduct. It concluded that the pilot's conduct was egregious and exhibited a disregard for safety which justified revocation.

Finally, the Board affirmed the ALJ's determination that the pilot lacked the qualifications necessary to hold his airman certificate. The Board held that, in light of the pilot's conduct in this case and the conduct at issue in the previous enforcement actions, the pilot had not convinced the Board that he possessed the care, judgment, and responsibility to hold an airman certificate and, as a result, he lacked the qualifications to hold an airman certificate.

The result here doesn't surprise me. However, I did find the Board's factual explanations and its assumptions humorous. Also, the case certainly does make for interesting conversations with other aviation attorney's (both private and FAA) who handle FAA enforcement cases.

Posted by Greg

June 08, 2009

NTSB Affirms FAA Contention That Continuing Conduct In Disregard Of Regulations Warrants Revocation

In a recent NTSB opninion, the Board reversed an Administrative Law Judge's ("ALJ") reduction of sanction from revocation to suspension based upon the airman's history of conduct in disregard of the regulations. In Administrator v. Poland, the FAA claimed that the airman had (1) operated his Extra 300 aircraft at less than 100 feet above ground level on at least two passes while flying within a 2,000-foot radius horizontally of persons and structures in a congested area and (2) flew aerobatic maneuvers during the flight in Class D airspace at an altitude below 500 feet. The FAA alleged that the airman's conduct violated FARs 91.303(c) and (e) (prohibited aerobatic flight), 91.119(b)4 (operating too low over congested area or open air assembly) and 91.13(a) (careless and reckless).

After a hearing, the law judge found that the airman's conduct had violated FARs 91.303(c) and 91.13(a), but that the FAA had not proved that the airman violated FAR 91.119(b)4. As a result, the ALJ reduced the sanction from revocation to a 270 day suspension of the airman's certificates. The FAA then appealed the ALJ's reduction in sanction, but not the ALJ's determination that it had not proved the FAR 91.119(b) violation.

On appeal, the FAA argued that revocation was appropriate because the Board must defer to the FAA’s choice of sanction, and because the airman’s conduct indicates that he lacks the qualifications necessary to hold an airman certificate. In support of the argument that the airman lacked qualifications, the FAA argued that his lack of qualifications was evident by both the airman's deliberate and reckless conduct and the airman's pattern of conduct exhibited by other enforcement actions for similar conduct, which, the FAA claimed, did not have the intended remedial effect because the airman violated the regulations yet again.

Initially, the Board observed that "the FAA Civil Penalty Administrative Assessment Act (the Act) states that the Board is bound by written agency guidance available to the public relating to sanctions to be imposed, unless the Board finds that any such interpretation or case sanction guidance is arbitrary, capricious, or otherwise not in accordance with law." The FAA must clearly articulate the sanction sought, ask the Board to defer to that determination, and support the request with evidence showing that the sanction has not been selected arbitrarily, capriciously, or contrary to law. However, even if the FAA does not introduce the Sanction Guidance Table (Appendix B to FAA Order 2150.3B) into the record or request such deference, the Board may still order a serious sanction if the airman's conduct indicates that the airman acted in a deliberate manner that demonstrates an unwillingness to comply with the regulations.

The Board then granted the FAA's appeal, concluding that "[t]he facts here indicate that respondent acted in a deliberate manner, once again committing violations similar to those in the not-too-distant past. We conclude that revocation is the appropriate sanction, because of respondent’s demonstrated unwillingness to comply with the Federal Aviation Regulations, which, based on our precedent, indicates that he lacks the qualifications to hold an airman certificate."

Posted by Greg

June 05, 2009

House Passes TSA Authorization Act With Language To Limit Security Directives

Yesterday the U.S. House of Representatives passed the Transportation Security Administration Authorization Act (H.R. 2200). H.R. 2200 authorizes TSA programs and funding levels for the next two years and also includes language to limit the situations in which the TSA may issue Security Directives ("SDs").

SDs are intended to allow the TSA to respond quickly to specific threats, without going through the usual rulemaking process required by the Administrative Procedures Act (notice, solicitation and consideration of public comment, etc.) required for any long-term change in regulations. H.R. 2200 emphasizes that SDs, such as the controversial SD-8F, later clarified in SD-8G (which require background checks and badges for general aviation pilots and aircraft owners operating at airports with any form of commercial service), should only be used to respond to emergencies and immediate threats, not as an alternative to the normal regulatory process. Specifically, H.R. 2200 clarifies that security directives can be issued "in order to respond to an imminent threat of finite duration" and any regulation or SD in effect longer than 180 days would have to go through the public rulemaking process.

Although H.R. 2200 is a victory for general aviation, it isn't the last word on SDs. In order to become law, H.R. 2200 must still either be introduced and voted on as a companion bill in the Senate or be reconciled with a different Senate bill in conference later this year. Now would be a good time to contact your senators and urge their support of H.R. 2200 and its limitations on the TSA's use of SDs.

Posted by Greg

June 04, 2009

FAA Not Realizing the Full Benefits of the Aviation Safety Action Program

According to a May 14, 2009 Memorandum released by the Department of Transportation Office of Inspector General ("OIG"), the FAA "is not realizing the full benefits of the Aviation Safety Action Program." The Memorandum explains the results of the OIG's audit of the aviation safety reporting programs ("ASAP") at several Part 121 air carriers. (An ASAP is similar to the Aviation Safety Reporting Program established for non-Part 121, general aviation operations).

An ASAP allows aviation employees of Part 121 air carriers(pilots, mechanics, flight attendants, dispatchers etc.) to self-report safety violations to their air carrier and the FAA, including violations of the FARs, without fear of reprisal through legal or disciplinary actions. The purpose of an ASAP is to obtain voluntarily reported safety information to proactively prevent accidents and incidents.

The OIG found that the "FAA’s ineffective implementation and inadequate guidelines have allowed inconsistent use and potential abuse of the program." It also determined that the "FAA has limited the program’s effectiveness because it has not devised a method to fully compile data reported through ASAP and analyze these data on a national level to identify trends." As a result, the OIG observed that "ASAP, as currently implemented, is a missed opportunity for FAA to enhance the national margin of safety."

In order to maximize the safety benefits from ASAP, the OIG recommended that the FAA:

1. Revise current ASAP guidance to exclude accidents from the program and clarify what constitutes an “intentional disregard for safety.

2. Require that FAA representatives on ERCs receive ASAP reports in a timely manner and concurrently with other ERC members.

3. Modify Advisory Circular 120-66B to clarify that ASAP is not an amnesty program and that employees submitting ASAP reports are subject to administrative action by FAA and corrective action by the air carrier.

4. Revise its ERC training to emphasize the need for FAA’s ERC members to remain impartial and require periodic refresher training in this area.

5. Clarify field office management responsibilities to ensure personal relationships between inspectors and airline personnel do not influence decision-making.

6. Standardize current ASAP guidance regarding quarterly report submissions and ensure they include, at a minimum, summary information regarding the ASAP reports submitted.

7. Require inspectors to examine repetitive reports of safety concerns and enhancements to ensure that corrective actions are completed in a satisfactory manner.

8. Develop a central database of all air carriers’ ASAP reports that the Agency can use for trend analysis at a national level.

The FAA concurred with seven recommendations and partially concurred with Recommendation 1. The OIG then concluded by requesting that the FAA reconsider its position regarding the part of recommendation 1 related to excluding accidents from ASAP reporting and by accepting the FAA’s planned actions and target dates for recommendations 2, 3, 4, 5, 6, 7, and 8 pending completion of the proposed actions.

Posted by Greg

June 03, 2009

TSA Revises Airport Security Directive SD-8G To Address Transient Operations

If you fly into an airport that has Part 121 air carrier service and that is not your home-base, you should be aware of the TSA's Airport Security Directive SD-8G. Although the directive has not been made publicly available (because the TSA considers it to be sensitive security information), the TSA reported in an e-mail the impact of SD-8G on transient pilot operations when it became effective June 1, 2009.

According to the TSA, "[f]or transient pilots, they will not be required to have airport badges or background checks from any of the non Home-Based airports they visit. Transient pilots are advised to remain in the footprint of their aircraft and to and from fixed-based operator, service provider or airport exit. Special allowance will be given to transient pilot operators in the AOA (Airport Operations Area) who are fueling or in emergency status."

Unfortunately, SD-8G does not take into account its impact on pilots, including those with multiple bases of operations; after-hours aircraft operations; self-fueling operations; and other normal airport activities (e.g. EAA chapter events or airport open house events). To compound matters, the TSA still has not provided an official list of the airports that are subject to SD-8G's requirements.

In addition to the obvious hub airports in class B airspace, SD-8G will also apply to other airports in class C or D airspace that have Part 121 air carrier operations. Pilots should make sure that they obtain the most current security information at all airports they plan to fly to and from during their pre-flight planning. In this situation, a flight service briefing, and the record it provides, may be a good idea to make sure your information is current and to afford you a potential defense if you are not provided with the correct information and you later have a problem at the affected airport.

Finally, this is yet further regulation by the TSA without complying with the Administrative Procedures Act ("APA"). Ordinarily, an agency, such as the TSA or FAA, must comply with the APA if it wants to issue regulations (e.g. publishing notice of proposed rulemaking, receiving public comment, publishing a final rule etc.). However, TSA's unilateral issuance of Security Directives without notice and comment is, in effect, regulating without complying with the APA.

Unfortunately, I think this will only be changed through one of two methods. First, it could certainly be dealt with politically, although that hasn't been successful so far. Second, if the TSA pursues an enforcement action against an airman for allegedly violating SD-8G, I suppose it may be possible to challenge the validity of SD-8G as a regulation that did not comply with the APA. Although I wouldn't encourage any pilot to be a test case, if a pilot finds himself or herself in this situation, this may be an appropriate defense. Probably worth a shot.

Posted by Greg

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