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September 17, 2010

Why You Need To Read The Questions On An FAA Medical Application Before Answering

An airman recently found out the hard way that failure to read the questions on an FAA medical application was not a defense to a charge of intentional falsification under FAR 67.403(a)1. In Administrator v. Cooper, the FAA alleged that the airman checked "No" in response to question 18(v) on the medical application which asks about convictions and/or administrative actions relating to the applicant's driver's license. However, the airman's driver's license had, in fact, been suspended in connection with an alcohol related motor vehicle action.

As a result, the FAA issued an emergency order revoking the airman's airline transport pilot (ATP), certified flight instructor (CFI), and second-class medical certificates based upon alleged violations of FARs 67.403(a)(1) (prohibiting an airman from making fraudulent or intentionally false statements on an application for a medical certificate), 67.403(c)(1) (providing that the making of an incorrect statement in support of an application for a medical certificate may serve as a basis for suspending or revoking a medical certificate) and 61.15(e) (requiring an airman to provide a written report of each motor vehicle action to the FAA, Civil Aviation Security Division within 60 days).

The airman appealed and presented a number of arguments at the hearing. Although the airman admitted that he failed to answer question 18v correctly, he argued that he did not intentionally falsify the application because he had simply failed to read the question or the instructions that accompanied the medical application before answering. Rather than reading the questions, the airman stated that he had just copied his answers from a previous application. However, he also admitted that, if he had read question 18(v), he would have answered "Yes."

The administrative law judge ("ALJ") determined that the airman's incorrect answer was "inadvertent," and that the FAA had not shown that the airman had an intent to falsify the application. As a result, the ALJ dismissed the FAR 67.403(a)1 charge. However, because the airman did answer question 18(v) incorrectly, the ALJ concluded that revocation of the airman's medical certificate was appropriate for violation of FAR 67.403(c)1. The FAA appealed the ALJ's decision to the full NTSB, arguing that the ALJ erred in finding that the airman had not intentionally falsified the application simply because he did not read it.

The Board initially observed that an airman must read the questions on a medical application carefully before answering them. It went on to state that an airman who does not read the questions on a medical certificate application "should be determined to have intended that whatever answer he gave be utilized in the review of his qualifications." Finally, the Board concluded that "failure to read a question before answering it renders the entire medical certificate application process pointless, and does not provide a defense to a charge of 67.403(a)(1)." As a result, the Board granted the FAA's appeal and affirmed its revocation of all of the airman's certificates.

This case is different from other recent cases that have held that an airman's confusion about a question may present a defense to an intentional falsification charge. Here the airman admitted to not reading the question, rather than not understanding the question. As a result, the defense of "failing to read the question" is no longer a legitimate defense. However, the defense of "confusion" or "misunderstanding" of a question remains a viable defense which an ALJ may or may not find credible, although it is still not a particularly strong defense.

Posted by Greg

September 16, 2010

TSA Clarifies/Updates "Recurrent Training" Requirements For Alien Flight Training

In a recent Interpretation, the TSA clarified the activities that are not considered recurrent training. As a result, alien flight training students will now be able to receive the following types of flight training without having to first submit to a Category 4 Security Threat Assessment ("STA"):
  • Instrument Proficiency Check;

  • Heads Up Display (HUD) Training;

  • Enhanced Vision System (EVS) Qualification;

  • Line Oriented Flight Training (LOFT);

  • Operator Specific Proficiency Checks;

  • Landing Currency;

  • Category I / II Qualification;

  • Special Airport Qualifications;

  • Examiner Training; and

  • Differences Training

The Interpretation is based upon the TSA's determination that these types of flight training "are not described as recurrent training in Federal Aviation Administration (FAA) regulations; they are not training, rather they are checks or tests; or they do not affect the validity of the certificate(s) and/or the qualifications of a type rating."

The Interpretation also includes a change to the STA process "to permit recurrent training candidates who have undergone a successful STA within the previous year to begin recurrent training without waiting for the results of the new STA once TSA accepts all documentation." Each student will still need to undergo a new STA, including submission of documents and payment of fees, but if the training provider ensures that a proper STA submission has been made, the student will be able to begin recurrent training prior to receiving the results of the STA.

The TSA's clarification and change in procedure will certainly make the process of training alien students more efficient for flight schools and for their alien flight training students. It is nice to see the TSA actually do something that makes sense and will actually help the aviation industry. Hopefully the TSA will take this same approach as it reviews security at general aviation airports. Keep your fingers crossed!

Posted by Greg

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