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July 31, 2009

DOT Reinstates Direct Observation Collections For Return-To-Duty/Follow-Up Tests

On July 30, 2009, the Department of Transportation ("DOT") published a Final Rule reinstating the requirement for direct observation collections for return-to-duty and follow-up drug and alcohol tests. The direct observation provision was originally included in a final rule published June 25, 2008. The June 25, 2008 Final Rule modified 49 C.F.R. 40.67(b) (drug and alcohol testing procedures) and added a new paragraph (§ 40.67(i)) addressing the use of direct observation collections, as a method to combat attempts by employees to cheat on their drug tests. Direct observation requires an observer of the same gender as the tested employee to actual observe the urine go directly from the employee's body into the collection container.

The amended rule specifically required direct observation collections for all return-to-duty and follow-up tests (e.g. testing of employees who have already failed or refused to take a prior drug test) and also required that the observer be allowed to check the individual for prosthetic or other cheating devices used to carry "clean" urine and urine substitutes (e.g. the "Whizzinator", the "Urinator" or the "Executive Ultra Realistic Kit" etc.). Under this latter requirement, an employee being tested must lift his or her shirt and expose himself or herself sufficiently enough to allow the observer to inspect for cheating devices (e.g. "please lift up your shirt and drop your shorts").

However, the direct observation provision of the June 25, 2008 final rule was stayed by the United States Court of Appeals for the District of Columbia Circuit effective November 1, 2008. Subsequently, on July 1, 2009 the Court issued a Mandate which lifted the stay. In effect, the Court's Mandate reinstated the direct-observation requirements of DOT's June 25, 2008 final rule. The DOT's July 30, 2009 final rule was then published to implement the Court's ruling.

Effective August 31, 2009, direct observation of return-to-duty and follow-up tests will be the law. "Lift up your shirt and drop your shorts" will be mandatory for employees who have already failed or refused to take a prior drug test.

Posted by Greg

July 29, 2009

NATA Seeks Industry Data Regarding Inconsistent Interpretations Of Regulations By FAA

NATA is conducting a survey in connection with the Government Accountability Office's (GAO) initiation of a review of inconsistencies in how FAA field inspectors and offices interpret and apply the Federal Aviation Regulations (FARs) to businesses holding FAA certificates (e.g. certificates under FAR Parts 61-flight training, 135-on-demand charter, 141-flight training and 145-repair station). Currently, FAA interpretations of the FARs can vary between the FAA's regional, aircraft certification and flight standards district offices. Examples of the lack of standardization range from requirements for moving an aircraft on a certificate from one FSDO to another to approval of maintenance manuals etc. The survey will allow NATA to present summary data and examples of this issue, including the costs these inconsistencies impose on the industry, to the GAO. If you would like to participate in the survey and share your experiences, you can go do so here.

Posted by Greg

July 28, 2009

FAA Revokes Mechanic's Certificate For Falsification Of Maintenance School Records

According to a report by the Department of Transportation Office of Inspector General, on July 10, 2009 the FAA issued an emergency order revoking a mechanic's certificate for falsifying records at the maintenance school from which the mechanic allegedly graduated. Apparently the mechanic admitted that he systematically breached the school’s computer database and falsified grades and FAA regulated attendance records while he was a student at the Pittsburgh Institute of Aeronautics (PIA) of West Mifflin, PA.

The mechanic's hacking allowed him to fraudulently receive a graduation diploma from PIA, which in turn met the prerequisite for the mechanic to test for an FAA Airman Mechanic Certificate. Not content to simply ensure his graduation, the mechanic also inflated his grades to the degree that he was named the class valedictorian. Of course, when PIA learned of the mechanic's actions, it revoked his degree, repealed his completion certificate, and nullified his status as valedictorian of his graduating class.

One of the interesting aspects of this case is that the airman actually passed the FAA examination and was issued his FAA mechanic certificate. He must have known enough, or learned enough in school, to be able to pass the test. As a result, it is unclear to me why he would need to hack the school's computer, at least with respect to his grades. I suppose that class attendance, or lack thereof, may have prompted his actions, at least in part. But to also make oneself class valedictorian? Makes me wonder what the airman was thinking. Unfortunately, what appears to me to be the airman's greed, has now cost him his career.

Posted by Greg

July 21, 2009

FAA Issues Final Rule Implementing Age 65 Limit

The FAA recently published a Final Rule amending the Code of Federal Regulations to conform certain regulations with recent legislation raising the upper age limit for pilots serving in domestic, flag, and supplemental operations from 60 to 65 (49 U.S.C. Section 44729). Although the legislation became effective December 13, 2007, the Final Rule's amendments became effective July 15, 2009.

Not only does the Final Rule specifically implement the legislation, it also goes beyond that legislation to maintain consistency throughout the remaining aviation regulations. The FAA believes Congress clearly intended the legislation to implement the ICAO age requirements for pilots operating internationally, to allow them to conduct commercial air transportation operations under certain conditions until the age of 65. As a result, additional implementation includes amendments to FAR Sections 121.411 and 121.412 to raise the age limit from age 60 to age 65 to allow check airmen and flight instructors to serve as pilot flight crewmembers until they reach the age of 65 and amendments to the applicable provisions of FAR Part 61 to reflect the new upper age limit and to allow a person over the age of 60 to serve as a pilot in command in covered operations between the United States and another country, and in operations between other countries, if there is another pilot in the flight deck crew under the age of 60.

If you would like further information regarding the Final Rule, you may contact the following: For technical questions concerning this rule contact Lawrence Youngblut, Air Transportation Division, AFS-200, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-9630, e-mail lawrence.youngblut@faa.gov. For legal questions concerning this rule contact Angela Washington, Office of the Chief Counsel, AGC-210, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-7556; e-mail angela.washington@faa.gov.

Posted by Greg

TSA Publishes Final Rule Revising Enforcement Procedures

The TSA today published a Final Rule in the Federal Register that revises its enforcement procedures. The Rule establishes procedures by which the TSA may issue civil monetary penalties for violations of any statutory requirement administered by the TSA. Previously, the TSA assessed administrative civil penalties only for violations of aviation security related statutes under 49 U.S.C. 449 (general security regulations), 49 U.S.C. 46302 (providing false information) and 49 U.S.C. 46303 (carrying a weapon on an aircraft).

The Final Rule also makes several changes to TSA's enforcement procedures, codified at 49 CFR part 1503. Specifically, it (1) reorganizes and clarifies TSA's enforcement procedures and make them easier to use; (2) applies TSA's enforcement procedures to violations of surface transportation requirements and of TSA's Transportation Worker Identification Credential requirements; and (3) adjusts for inflation the maximum civil penalty amounts.

The Final Rule is effective August 20, 2009. However, the TSA will accept public comments on the Final Rule if they are received by September 21, 2009. If you would like further information regarding the Final Rule, you may contact Sarah Tauber, Office of Chief Counsel, TSA-2, Transportation Security Administration, 601 South 12th Street, Arlington, VA 20598-6002; telephone (571) 227-3964; facsimile (571) 227-1380; e-mail sarah.tauber@dhs.gov.

Posted by Greg

July 07, 2009

NTSB Rules That FAR 91.207 Does Not Apply To A Mechanic Who Does Not Operate The Aircraft

In a recent decision, the NTSB ruled that a mechanic who does not operate an aircraft he or she inspected cannot violate FAR 91.207 (no U.S. civil aircraft may be operated without an emergency locator transmitter ("ELT")). In Administrator v. Hayes the FAA alleged that the mechanic violated FARs 43.12(a)(1) (prohibition against making a fraudulent/false logbook entry), 43.13(a) and (b) (standard for performing maintenance), and 43.15(a)(1) (standard for performing inspections), when he performed an annual inspection of a Beech 35 aircraft and made a logbook entry indicating that he had removed and replaced the battery from the aircraft’s ELT, and when he returned the aircraft to service with an expired ELT battery.

The FAA issued an emergency order revoking the mechanic's mechanic certificate with airframe and powerplant ratings, inspection authorization, and commercial pilot certificate. The mechanic appealed the order to the NTSB and, after a hearing, the administrative law judge ("ALJ") granted the mechanic's appeal and dismissed the FAA's order. The FAA then appealed the ALJ's decision to the full Board.

On appeal, the Board determined that the FAA had failed to prove that the mechanic violated FARs 43.13(a) and (b) and 43.15(a)(1) when he returned the aircraft to service with the expired battery. Since the FAA stipulated that the FARs do not state that an aircraft is unairworthy if it does not have a functioning ELT, the mechanic's return of the aircraft to service with an expired batter did not render the aircraft unairworthy. Although the FAA argued that an expired ELT battery would render an aircraft unairworthy, the FAA couldn't dispute that FAR 91.207 is an operational regulation, meaning that it only applies to actual operation of an aircraft, as opposed to maintenance or repair, and that the mechanic did not operate the aircraft.

The Board also observed that the FAA did not charge the mechanic with a violation of FAR 91.207, but rather was attempting to boot-strap the requirements of FARs 43.13(a) and (b) and 43.15(a)(1) onto the requirements of FAR 91.207(f)(10) (that an aircraft can only be returned to service without a functioning ELT if the mechanic complies with requirements listed at FAR 91.207(f)(10)). However, the Board concluded that the FAA had not established that FAR 91.207 applies to a mechanic. Thus, since the mechanic did not operate the aircraft, the mechanic's approval of the aircraft for return to service did not constitute a violation of the regulations as alleged by the FAA.

From the FAA's perspective, I am sure this must appear to be a loophole in the regulations. Otherwise, they wouldn't have had to try and bootstrap onto FAR 91.207. Apparently "return to service" does not necessarily mean "in an airworthy condition", at least in the context of an ELT and FAA enforcement. However, as between a mechanic and an aircraft owner, if a mechanic's logbook entry states that an inspection was completed and the aircraft was found to be in an airworthy condition and if the aircraft would not be airworthy if operated, it is certainly possible the aircraft owner would think the statement was false. But that would be a separate issue from an enforcement action.

Posted by Greg

July 03, 2009

FAA Issues Carburetor Icing SAIB

On June 30, 2009, the FAA issued Special Airworthiness Information Bulletin CE-09-35 "to inform pilots of the potential hazards associated with carburetor icing." The SAIB observes that the rate of accidents attributed to carburetor icing has remained steady over the years despite efforts by the FAA, AOPA and others to raise awareness. As a result, the SAIB briefly describes how a pilot may prevent and/or identify carburetor icing.

To prevent carburetor icing, the pilot should (1) make sure the carburetor heat works prior to takeoff; and (2) use carburetor heat on approach and descent when operating at low power settings, or in conditions where carburetor icing is probable. Carburetor icing can be identified by (1) a drop in rpm in fixed pitch propeller airplanes; (2) a drop in manifold pressure in constant speed propeller airplanes; or (3) roughness in engine operation in either type of aircraft. Once identified, the pilot should apply full carburetor heat immediately. The SAIB also concludes that pilots should consult the AFM or the pilot's operating handbook for the manufacturer recommended use of carburetor heat in the applicable make/model of aircraft.

This seems like old news to me. I know when I learned how to fly, and when I have received advanced and recurrent training since that time, the procedures for identifying and dealing with carburetor icing have been covered. Maybe that isn't the case for other pilots and I have just been fortunate to have top-notch instruction over the years. In any event, I guess a reminder/refresher isn't a bad thing.

Posted by Greg

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