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February 23, 2011

Mechanic Loses Certificate Permanently In Falsification Plea Deal

In a recent Summary on the Department of Transportation Office of Inspector General website, a Florida mechanic was recently sentenced to three years probation and a $300 special assessment for falsifying the overhaul of a Bell Helicopter main rotor hub assembly and for falsifying the 100 hour inspections on two Bell Helicopters. According to the Summary, the A & P mechanic apparently signed off that he overhauled a main rotor hub assembly, a compressor assembly, a turbine assembly, and a gearbox assembly with new parts when the parts he used were removed from a crashed helicopter. The mechanic also admitted that he signed off on two 100 hour inspections when he hadn't completed proper inspections of either helicopter.

In order to avoid a criminal trial that could have resulted in a conviction and some significant prison time, the mechanic agreed to the plead guilty to the falsification charge and accept the sentence. However, as a condition of the plea and sentence, the mechanic also agreed to permanently surrender and forfeit his mechanic certificate and to not reapply for a mechanic certificate upon completion of his sentence.

Although permanent surrender seems like a severe condition, it is hard to say based upon the minimal facts that are provided in the Summary. Perhaps the case involved aggravating circumstances not disclosed in the Summary (e.g. an accident involving the helicopter that resulted in injuries or fatalities). In any event, this isn't the first time that a judge has imposed such a condition in connection with a criminal sentence. Certificate holders should be on notice of the severe consequences that may be imposed in falsification cases.

Posted by Greg

February 18, 2011

Firearms At The Checkpoint: Don't Do It.

According to a recent post on The TSA Blog, at least two passengers a day are caught at security checkpoints with a gun in their carry-on luggage. According to the post, when the passengers are caught, the most common response is "I didn't know it was in the bag." Unfortunately, that excuse works for the TSA just about as well as "the dog ate my homework" works for a high school teacher.

Once caught, a passenger potentially faces a number of consequences. First, the subsequent interaction with and interrogation by local law enforcement will quite often result in the passenger missing his or her flight. Next, the passenger could face criminal prosecution for violation of 49 U.S.C. 46505 which prohibits carriage of a firearm on an aircraft where the firearm is accessible to the passenger during the flight. The passenger may also be prosecuted under other local statutes that prohibit possession of a handgun at a checkpoint or in the secured area of an airport.

Alternatively, the government could initiate a civil penalty action seeking to impose a civil penalty/monetary fine against the passenger for violation of 49 C.F.R. 1540.111 which prohibits carriage of a weapon on your person or accessible carry-on luggage if security screening was required before boarding of the aircraft. The penalty could range in amount from $1,500 to $7,500, depending upon whether or not the firearm was loaded. The civil penalty action does not provide as many constitutional rights and protections as a passenger would have in a criminal proceeding. However, the action does not result in a criminal conviction.

How does the government decide between criminal prosecution and civil penalty? Well, the DOJ publishes a Criminal Resource Manual that addresses the situation. Section 9-63.161 divides the cases into two categories: "aggravated" cases, which are criminally prosecuted; and cases involving "mitigating factors," which may be referred for civil penalty action.

Aggravated cases include situations where:
  1. The individual has endeavored by obvious and deliberate measures to preclude detection of a concealed weapon on his/her person or in his/her carry-on baggage; or

  2. Evidence available indicates that the subject intended to use the weapon in the commission of an offense;

Cases with mitigating factors involve:
  1. Individuals who are not law enforcement officers, but who nevertheless possess valid permits to carry a weapon;

  2. Individuals who have no serious criminal records, and the circumstances surrounding the offense are clearly extenuating in nature; or

  3. Individuals who possess items which are normally and acceptably used for a noncriminal purpose and which are only marginally of a deadly or dangerous character.

According to the Manual, all un-aggravated weapons violations are referred initially to State and local authorities for disposition. If they are unwilling or unable to prosecute a weapons offense involving a firearm, then the case will be referred to the nearest FAA Civil Aviation Security Field Office for civil penalty action under 49 U.S.C. § 46303

The TSA recommends, and I concur, that all passengers double check their carry-on baggage BEFORE arriving at the security checkpoint to confirm that they do not have a handgun or other prohibited item(s) in their luggage. Seems like a "no-brainer" to me. But, if you are caught "packing" at a checkpoint or in the secured area of an airport, hire an aviation attorney to help protect your rights.

For more information on the restrictions placed upon firearms at airports and in aircraft, please read my article on the topic: Carrying Firearms On Aircraft.

Posted by Greg

February 17, 2011

FAA Suspends Its Enforcement Expunction Policy

On February 11, 2011, the FAA published a Policy Statement in which it informs airman that the FAA is suspending its policy of expunging certain records of legal enforcement actions against individuals. Up until recently, the FAA would expunge an airman's personal information from the FAA's enforcement database 5 years after the FAA’s action in civil penalty and certain certificate action cases (suspension cases, but not revocation cases). However, the FAA is now suspending that policy in order to ensure compliance with recent amendments to 49 U.S.C. 44703(h),the Pilot Records Improvement Act ("PRIA").

On August 1, 2010, the Airline Safety and Federal Aviation Administration Extension Act of 2010 (the "Act") amended PRIA to now require the FAA to create a pilot records database that, among other things, will include summaries of enforcement actions in which individuals were determined to have violated the regulations. Under the Act and PRIA, Part 121 and Part 135 air carriers will be required to use this database to perform background checks on pilots before hiring them. Rather than expunging individual information after 5 years as before, under the Act the FAA must now keep these records until it receives notice that the individual is deceased.

It is unclear exactly what impact this change in policy will have. Although PRIA requires the FAA to provide this information to air carriers making hiring decisions, as a practical matter, many, if not most, air carriers' employment applications also ask some variant of the question "have you ever been subject to an enforcement action in which you were found to have violated the Federal Aviation Regulations?" Of course, this amendment may, perhaps, deter airmen from providing a false answer, or, more likely, it will reveal an airman who has, in fact, provided a false answer to that question.

With respect to airmen who are not seeking employment with an air carrier, this amendment will likely have limited effect. It is possible that this could affect an airman involved in an aircraft property or casualty lawsuit in which the enforcement information that previously would have been expunged will now be available for use in the litigation. However, given that properly drafted discovery requests in such a case (e.g. "have you ever....") will ask for that same information, the impact of the Act may have the same effect as it might on air carrier applicants.

In any event, it appears that the amendment is another example of legislation resulting in, perhaps, unintended consequences. Fortunately, the FAA will continue to expunge records of administrative actions and cases with no enforcement action, since the FAA is not required to maintain that information under PRIA.

For more information about expunction under PRIA, you can read the FAA's Pilots Records Expunction Policy Frequently Asked Questions or, for a general discussion of PRIA, you can read my article What Will The FAA Say About You?

Posted by Greg

February 10, 2011

FAA Publishes Final Rule Regarding Part 129 Operations

The FAA published a Final Rule today addressing operations under FAR Part 129 by foreign air carriers conducting operations within the United States and foreign air carriers and foreign persons operating U.S.-registered aircraft in common carriage solely outside the United States. Specifically, the final rule clarifies and standardizes the rules for applications for operations specifications by adding three new regulations: FAR 129.5, Operations Specifications; FAR 129.7, Application, issuance, or denial of operations specifications; and FAR 129.9 Contents of operations specifications. The final rule also amends Sec. 129.11 to establish new standards for amendment, suspension, and termination of operations specifications.

Additionally, the FAA has transferred all of the definitions in FAR 119.3 to a new FAR Part 110. FAR 119.3 will now be FAR 110.2. However, the FAA has not made substantive changes to any of the definitions.

The final rule's amendments become effective April 11, 2011. Operators will need to comply with FAR 129.9(a)(2) and (b)(2) by February 10, 2012. Compliance with the information collection requirement in FAR 129.7 will not be required until the FAA publishes in the Federal Register the control number assigned by the Office of Management and Budget (OMB) for this information collection requirement. Compliance with all other provisions of the final rule is required by April 11, 2011.

For a more detailed explanation of the new and amended regulations, please refer to the Final Rule.

Posted by Greg

February 09, 2011

Waiver Of Emergency Procedures Will Not Save An Untimely Appeal

The NTSB recently rejected an airman's argument that his untimely appeal was saved by his waiver of emergency procedures after the time for him to file his appeal pursuant to the emergency procedures had passed. In Administrator v. Converse, the FAA initiated an emergency proceeding revoking the airman's commercial pilot, mechanic, and second-class airman medical certificates for allegedly falsifying his application for a medical certificate. Under 49 C.F.R. § 821.53, the airman had to file his appeal with the Board within 10-days. However, the airman filed his appeal and motion for leave to late-file his notice of appeal 10 days after the deadline. On the 11th day after the deadline the airman waived applicability of the procedures for emergency proceedings.

The FAA subsequently filed a motion to dismiss the airman’s appeal as untimely and the administrative law judge ("ALJ") granted the motion and terminated the case. The ALJ determined that the airman's appeal was untimely and the airman had not established good cause for his delay. The airman then appealed to the full Board.

On appeal, the airman argued his appeal was timely because he waived the application of the expedited procedures applicable to emergency cases. Initially, the Board reiterated its longstanding rule that it "will not entertain untimely appeals without a showing of good cause for delay." It then observed that "the Board considers timeliness in emergency cases to be paramount, given the expedited timeline applicable to emergency orders."

The Board then rejected the airman's argument as "at best, a misinterpretation of our Rules of Practice." The Board observed that Section 821.52(d) allows an airman to waive the accelerated time limits applicable to emergency cases, but that, "such a waiver shall not serve to lengthen any period of time for doing an act prescribed by this subpart which expired before the date on which the waiver was made." As a result, the Board concluded that the airman was precluded from arguing the non-emergency deadline because he did not waive the applicability of the emergency procedures until after his appeal deadline under the emergency procedures expired.

Interesting argument. But, unfortunately for the airman, Section 821.52(d) was likely drafted with that argument in mind. As a result, climbing the nearly insurmountable mountain of "good cause" remains one of the few ways for an airman to save an untimely appeal.

Posted by Greg

February 08, 2011

Pilot Sentenced To 30 Days In Jail For Falsification Of Aircraft Maintenance Records

According to a Summary on the Department of Transportation Office of Inspector General website, a pilot in Virginia was recently convicted of falsifying aircraft maintenance records. The pilot was then sentenced to 30 days in jail followed by a 12-month period of supervised release.

Apparently the pilot, or an aircraft sales and management company owned by the pilot, sold an aircraft to a buyer and represented to the buyer that the aircraft had received an annual inspection per FAR 91.409. However, when the aircraft was delivered it did not contain any logbook entries or records reflecting the completed annual inspection. The pilot then instructed his company's director of maintenance to create false maintenance record entries showing that the annual inspection was completed by one of the company's former mechanics. The pilot then delivered the fraudulent maintenance records to the buyer.

This is an interesting case because the pilot wasn't the person who actually created the false maintenance records. Granted, he authorized his employee to create the records and then passed them off as originals to the buyer. I suspect that the FAA probably revoked the the director of maintenance's airman certificates since his or her conduct violated FAR 43.12. However, I wonder if the FAA took any enforcement action against the pilot. After all, he didn't actually make the false entries. Unfortunately, the Summary doesn't say anything about FAA enforcement actions.

In any event, this is, yet again, another reminder that false or fraudulent entries in aircraft maintenance records can result in both criminal and civil consequences. In the end, it just isn't worth it.

Posted by Greg

February 07, 2011

Senator Inhofe Avoids Certificate Action

According to an article in the Tulsa World, (FAA will not pursue legal action against Inhofe), Senator Inhofe has reached an agreement with the FAA under which he received a warning letter and agreed to remedial training to avoid any action against his airman certificate. As you may recall, the Senator landed on a closed runway back in October of 2010. At the time, I was very curious to see whether the Senator would be treated the same as any other airman in that situation. We now have the answer: No, he was not treated the same.

I believe the Senator received preferential treatment. Based upon the facts reported in the media, which I acknowledge did not tell the whole story (of course, they never do), I think any other airman would most likely have been looking at a suspension of his or her certificate. First, the FAA rarely agrees to remedial training these days. Although a warning letter and remedial training are probably more effective at preventing future violations, the FAA seems to prefer certificate action. Second, this type of operational violation, where the potential for an accident or injury to someone on the ground was significant, usually generates a certificate action seeking suspension of an airman's certificate.

Interestingly, the Senator seemed to acknowledge the possibility of preferential treatment when he stated "I often wonder though if I had not been a United States senator … somebody who is just a pilot would have gone through this and if they were not able to get the two documents that I want, they could have ended up losing their license." Although he still denies that he did anything wrong.

This is a great result for the Senator. A warning letter, no finding of violation, remedial training and expungement after two years. But, does it mean that those of us who are not U.S. Senators are doomed to second-class citizen status when it comes to dealing with the FAA? Maybe not.

It is possible that the Senator's case could be cited as precedent. Even though the FAA has discretion in how it handles investigations and enforcement, and its treatment of the Senator doesn't require it to treat other airmen in similar circumstances the same way, perhaps the court of opinion won't look too kindly on disparate treatment. Will that be enough to influence an FAA inspector to pursue administrative action rather than a certificate action? Who knows?

However, as an aviation attorney, I'll put my money on the FAA continuing to pursue certificate actions.

Posted by Greg

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