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May 20, 2011

FAA Publishes Air Carrier SNPRM To Enhance Crewmember Training

The FAA today published a supplemental notice of proposed rulemaking ("SNPRM") titled Qualification, Service, and Use of Crewmembers and Aircraft Dispatchers; Proposed Rule in which it proposes significant changes in the regulations governing the training of air carrier pilots, flight attendants and dispatchers. According to the FAA, "the key features of the SNPRM include:
  • Enhancing training programs by requiring the use of flight simulation training devices (FSTD) for flight crewmembers;

  • Addressing National Transportation Safety Board (NTSB) recommendations regarding crewmember training;

  • Realigning the recurrent training and evaluation interval to 9 months for both pilots in command (PICs) and second in command (SICs) that results in an equivalent level of training for both. SICs would now receive twice the amount of FSTD time over a 36 month training cycle as they receive today;

  • Focusing on the value of training and evaluation in a complete flightcrew environment through this realignment, which would increase the likelihood that PICs and SICs who need recurrent training would train together;

  • Providing a clear definition of the tasks required to train and evaluate pilots in part 121 operations during the 36-month recurrent training cycle while maintaining flexibility for the certificate holder;

  • Clarifying the minimal impact on certificate holders training under an Advanced Qualification Program (AQP)"

The SNPRM significantly reorganizes and revises the qualification, training, and evaluation requirements for all crewmembers and dispatchers. More specifically, under the SNPRM flight crews would have to demonstrate critical skills in real-world training scenarios and would be required to train as a complete flight crew, using Crew Resource Management. Additional ground and flight training to teach pilots how to recognize and recover from stalls and aircraft upsets is also proposed. In the event that a pilot fails a proficiency test or check, or his or her performance during flight training or a simulator course is unsatisfactory, remedial training would be required. It also addresses air carrier training programs.

Comments regarding the SNPRM are due on or before July 19, 2011. If you would like further information regarding the SNPRM, for flightcrew member information contact James K. Sheppard, e-mail:; for flight attendant information contact Nancy Lauck Claussen, e-mail:; and for aircraft dispatcher information contact Leo D. Hollis, e-mail:; Air Transportation Division (AFS-200), Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-8166. For legal questions, contact Anne Bechdolt, Office of Chief Counsel (AGC-200), Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; e-mail:; telephone 202-267-3073.

Posted by Greg

May 17, 2011

Unexplained Disturbance In Consciousness Results In Denial Of Airman's Medical Application

The United States Court of Appeals for the District of Columbia recently affirmed the FAA's denial of an airman’s application for a first-class medical certificate because the airman "had a history of 'disturbance of consciousness without satisfactory medical explanation' or 'other seizure disorder, disturbance of consciousness, or neurologic condition'." In Dickson v. NTSB and FAA, the FAA denied the airman's application because he had "a history of disturbance of consciousness without satisfactory medical explanation, and/or other seizure disorder, disturbance of consciousness, or neurologic condition" which disqualified him from receiving a medical certificate under FAR 67.109(a)(2)(b). The FAA's finding was based upon two incidents in which the airman had suffered what appeared to the FAA to be unexplained seizures, one of which occurred while the airman was acting as a first officer on a flight.

The airman appealed the denial and, after a three-day hearing at which both the airman and the FAA presented expert medical testimony, an Administrative Law Judge ("ALJ") affirmed the FAA’s denial. Upon further appeal, the full Board affirmed the ALJ’s order. The airman then appealed the Board's decision to the United States Court of Appeals for the District of Columbia arguing that the Board's decision was not supported by substantial evidence.

The Court initially noted that the airman had the burden of proof to establish his medical qualifications by a preponderance of reliable, probative, and substantial evidence. (This is the opposite of enforcement actions in which the FAA has the burden of proof). Thus, the Court observed that "to succeed in this court, Dickson has a particularly difficult burden: he must show that substantial evidence does not support the Board’s determination that Dickson failed to establish his medical qualifications by a preponderance of the evidence."

Although the airman disagreed with the ALJ's and Board's credibility findings in favor of the FAA, the airman conceded to the Court that a difference of medical opinion existed as to whether he experienced seizures during the two incidents: the FAA’s experts saying he had and the airman’s experts saying he did not. In response, the Court stated that "a difference of opinion is not enough to show that the NTSB lacked substantial evidence for its decision" and "a conclusion may be supported by substantial evidence even though a plausible alternative interpretation of the evidence would support a contrary view." As a result, the Court affirmed the denial of the airman's medical application.

This case illustrates the difficulty an airman faces in appealing the FAA's denial of a medical application. Although not impossible, convincing an ALJ that the FAA's basis for denial is unsupported by substantial evidence is a significant challenge.

Posted by Greg

May 13, 2011

FAA Issues iPad InFO

The FAA today released Information for Operators ("InFO") 11011 regarding "The Apple iPad and Other Suitable Tablet Computing Devices as Electronic Flight Bags (EFB)." The InFO is intended to provide "information about the use of the iPad and other suitable tablet computing devices as EFBs. In addition, it provides information about EFB use and the Flight Standards Information Management System (FSIMS) process that may be helpful to operators seeking authorization to use an EFB."

Although InFO 11011 is intended for certificated operators (e.g. Part 135 air carriers and Part 91K fractional operators), the InFO also notes that Part 91 operators other than under Part 91K, do not need FAA authorization for use of an EFB. According to the FAA, the use of an EFB in lieu of paper is the decision of the Part 91 aircraft operator and/or the pilot in command. However, Part 91 operators will still need to comply with the installation and airworthiness requirements specified in AC 120-76A for use of EFBs such as the iPad.

Posted by Greg

May 12, 2011

FAA To Hold Public Meeting Re: Owner Trustee Registration Of Aircraft

In a Notice of Public Meeting published April 26, 2011, the FAA announced that it will be holding a public meeting on Wednesday, June 1, 2011, to discuss and receive input on the issue of the U.S. registration of aircraft in the name of owner trustees on behalf of owner trusts whose beneficiaries are neither U.S. citizens nor resident aliens. At the meeting FAA representatives will review the provisions of 49 U.S.C. 44102 and 14 CFR 47.7(c) and identify the issues that are relevant to compliance with those statutory and regulatory requirements in the context of trusts with foreign beneficiaries. The FAA will also provide attendees with an opportunity to provide input to the FAA regarding the appropriate application of the statute and regulations in the context of "how a trust can be structured and implemented for purposes of aircraft registrations that satisfy statutory and regulatory requirements regarding ownership and U.S. citizenship."

To that end, the FAA "seeks a discussion with interested members of the public about the factors that would weigh in favor of or against a finding that a trustee is an "owner" of an aircraft." In this context the FAA is interested in answers to the following questions:
  1. What are the appropriate obligations to impose on a trustee of a trust with beneficiaries that are neither U.S. citizens nor resident aliens in order to satisfy the statute and regulations?

  2. In the case of a trust with beneficiaries that are neither U.S. citizens nor resident aliens, which rights and actions must be prohibited on the part of the beneficiaries in order to satisfy the statute and regulations?

  3. Which forms of granting possession, use or operational control of an aircraft by a trustee to its beneficiaries that are not U.S. citizens or resident aliens are permitted and which are prohibited under the statute and regulations?

  4. What are the specific elements of "the trustee's authority" (14 CFR 47.7(c)(iii)) about which the FAA should be concerned, and what are the forms of influence or limitation that the FAA should proscribe?

  5. How may a beneficiary that is not a U.S. citizen or resident alien participate in the decision to remove a trustee in accordance with the statute and regulations?

  6. To what extent, if any, are the FAA interpretations cited above in need of amendment? and

  7. Which, if any, knowledge and information requirements (e.g., address of operator, location of maintenance records, principal hangar location) are appropriate for the FAA to impose on trustees of trusts beneficiaries that are not U.S. citizens or resident aliens?

The meeting will be held at the Marriott Renaissance Convention Center Hotel, 10 North Broadway Avenue, Oklahoma City, OK 73102, Phone (405) 228-8000 or (800) 468-3571. If you would like further information regarding the meeting, you may contact LaDeana Peden at (405) 954-3296, Office of Aeronautical Center Counsel, Federal Aviation Administration.

Posted by Greg

NTSB Allows Airmen To Waive Exclusion Of ASAP Report From Enforcement Action

In a recent decision by the NTSB, Administrator v. Austin and McCall, the Board determined that an administrative law judge ("ALJ") should have admitted into evidence two Aviation Safety Action Program ("ASAP") reports offered by two airmen in an enforcement hearing. ASAP programs are governed by FAA Advisory Circular 120-66B and typically provide that an airman flying for an air carrier has the option of submitting a voluntary report concerning an incident. Once submitted, the ASAP event review committee (ERC) may review the report, accept the reporting airman into the ASAP, and the FAA then agrees not to initiate a certificate action against the airman based upon the reported incident. AC 120-66B also specifically provides that an ASAP report may not be used for any purpose in an FAA legal enforcement action, unless the report involves criminal activity, substance abuse, controlled substances, or intentional falsification.

In this case, the airmen wanted to have ASAP reports they submitted admitted into evidence at the hearing. However, the ALJ granted the FAA's motion to exclude the ASAP reports based upon AC 12-66B. The ALJ determined that ASAP reports were not subject to review and that such a review would render ineffectual the memoranda of understanding under which ASAP programs operate. (The elements of an ASAP are set forth in a Memorandum of Understanding (MOU) between the FAA, certificate holder management, and an appropriate third party, such as an employee’s labor organization or their representatives). Interestingly, the ALJ also acknowledged that this issue was one of first impression for the Board and that the Board needed to decide the issue before he would review the ASAP reports.

After a hearing, the ALJ affirmed the FAA's orders of suspension against the airmen. One of the airman then appealed the ALJ's decision to the full Board. Not surprisingly, the airman argued, among other things, that the ALJ improperly excluded the ASAP reports.

The Board initially noted that the protection provided by AC 120-66B prohibits the FAA from using ASAP evidence in an enforcement action. However, it then concluded that AC 120-66B "does not prohibit a pilot from waiving this protection to submit his or her own ASAP report into evidence." As a result, the Board remanded the case back to the ALJ for him to review the ASAP reports and to consider whether the airmen's filing of their respective ASAP reports protected one or both of them from FAA enforcement action.

It will be interesting to see how the ALJ rules on remand since the Board simply ruled that the ASAP reports were admissible and should be considered by the ALJ. Unfortunately, the Board didn't provide any guidance on whether the ASAP reports should have precluded the FAA from pursuing enforcement action against the airmen in the first place. I guess we will have to see what the ALJ decides.

Posted by Greg

May 10, 2011

FAA Issues Notice Of Experimental Aircraft Advisory Circular

In a Notice published today, the FAA announced the availability of Advisory Circular (AC) 90-109 Airmen Transition to Experimental or Unfamiliar Airplanes, which "provides information and guidance to owners and pilots of experimental airplanes and to flight instructors who teach in these airplanes." The AC will also assist a pilot who is planning on participating in a flight-test program in an unfamiliar experimental aircraft and may also be useful for pilots planning the transition to any unfamiliar fixed-wing aircraft, including type-certificated aircraft.

The AC divides aircraft into a variety of groupings based on the aircraft performance and handling characteristics. The groupings are then used to provide the basis of a training plan and transition program. A pilot may use the AC with a qualified CFI to obtain the appropriate instruction necessary for a successful transition.

AC 90-109 became effective on March 30, 2010. If you would like more information regarding the AC, you should contact the FAA General Aviation and Commercial Division (202) 267-8212, Flight Standards Service, AFS-800, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591.

Posted by Greg

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