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June 29, 2011

Answers To Aerospace Medicine Questions

Airmen holding pilot certificates, other than a sport pilot certificate, know that they also need a medical certificate in order to fly. In order to obtain a medical certificate, an airman must pass a medical examination by an FAA aviation medical examiner ("AME") which demonstrates that the airman is qualified to hold a medical certificate under FAR Part 67. Not only does Part 67 identify the requirements which an airman must meet, but it also identifies physical and mental conditions that would preclude an airman from being issued a medical certificate.

If an airman has questions regarding the requirements for being issued a medical certificate, how the process for obtaining a medical certificate works, or regarding specific medical or mental conditions, the FAA's Office of Aerospace Medicine provides a number of resources. In addition to reviewing Part 67, airmen can utilize the following: These resources will answer many of the aerospace medicine questions an airman may have. For specific questions, airmen should contact their local AME or consult with a knowledgeable aviation attorney.

Posted by Greg

June 24, 2011

FAA Proposes Clarification Of Seatbelt/Seating Requirements Under FAR 91.107(a)(3)

In a Notice of Proposed Clarification of Prior Interpretations published yesterday, the FAA proposed clarifications of prior interpretations of the seat belt and seating requirements of 14 CFR 91.107(a)(3). FAR 91.107(a)(3) provides that "each person on board a U.S.-registered civil aircraft...must occupy an approved seat or berth with a safety belt and, if installed, shoulder harness, properly secured about him or her during movement on the surface, takeoff, and landing."

The FAA's earlier interpretations state that it may be permissible to share a single restraint. Under the proposed clarification, "the use of a seat belt and/or seat by more than one occupant is appropriate only if: The seat belt is approved and rated for such use; the structural strength requirements for the seat are not exceeded; and the seat usage conforms with the limitations contained in the approved portion of the Airplane Flight Manual."

With respect to the seating of children and their seat belt use, FAR 91.107(a)(3)(i) provides that a child may "[b]e held by an adult who is occupying an approved seat or berth, provided that the person being held has not reached his or her second birthday and does not occupy or use any restraining device." Although the FAA advocates "the use of child restraints such as child safety seats for children who are within the weight restriction of the restraint," it also recognizes that children are often difficult to restrain and a one-size-fits-all approach doesn't work. As a result, the Notice clarifies "that the proper restraint method for children during operations conducted under part 91 relies on the good judgment of the pilot, who should be intimately aware of the capabilities and structural requirements of the aircraft that he or she is operating."

Comments to the proposed clarification must be received by the FAA on or before August 22, 2011. If you have questions or would like more information regarding the proposed clarification, you may contact Alex Zektser, Attorney, Regulations Division, Office of Chief Counsel, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267- 3073; email: Alex.Zektser@faa.gov.

Posted by Greg

June 22, 2011

Denver Judge Finds Former United Express Pilot Guilty Of Operating A Common Carrier Under The Influence Of Alcohol

According to a CNN article, a Denver judge has found a former United Express pilot guilty of operating a common carrier under the influence of alcohol. As a result, the former pilot is facing a sentence of up to 15 years in prison and a fine of as much as $250,000. Although the article doesn't mention it, I have no doubt that the FAA revoked the first officers airman and medical certificates on an emergency basis following the failed alcohol test.

According to the article, the former pilot was the first officer on a flight from Austin, TX to Denver, CO. During the flight, the captain detected the smell of alcohol. Upon landing, the captain determined that the smell of alcohol was coming from the first officer and, as a result, the captain contacted the company while the first officer was performing his after-landing inspection. When the first officer returned to the cockpit, the captain advised that he was ordered to take the first officer to an alcohol-testing facility in the terminal for performance of a reasonable suspicion alcohol test. The first officer subsequently registered a .094 BAC on the test, violations of both the FARs, company policy and Colorado law.

Apparently the first officer had been out drinking at a bar the night before his flight and had also purchased some beer at a store near his hotel, but the article doesn't indicate when the first officer actually stopped drinking. However, even if we give the first officer the benefit of the doubt and assume that he stopped drinking 12 hours before his duty time (a typical policy for Part 121 carriers), he must have consumed a significant amount of alcohol in order to have had enough alcohol in his system to blow a .094 after completion of the first flight of the day.

This raises an issue that pilots should keep in mind: Compliance with an 8 or 12-hour no-alcohol rule by itself won't necessarily keep a pilot out of trouble. If a pilot consumed more alcohol than his or her body can metabolize during that 8 or 12-hours after the pilot stopped drinking, then the pilot will still have alcohol in his or her system. Pilots need to be aware of not only what time they stop drinking, but also how much they drank before they quit. The consequences of failing to do so could be severe, and even deadly.

Posted by Greg

June 21, 2011

Man Sentenced For Making False Statement To FAA To Obtain Airworthiness Certificate

According to a recent Summary on the Department of Transportation Office of Inspector General website, a Texas man was sentenced to serve five months imprisonment, five months home confinement and three years of supervised release for making a false statement to the FAA to obtain an airworthiness certificate for an aircraft. As part of his sentence, the man was also ordered to pay a $10,000 fine, a $100 special assessment and he had to surrender to the government three UH-1H helicopters he obtained through the General Services Administration federal surplus property program.

Apparently the man obtained surplus aircraft through the surplus property program, including a twin-engine aircraft that was previously owned and operated by the U. S. Forest Service. When he received the twin-engine aircraft, it did not have an airworthiness certificate because the U.S Forest Service had surrendered the certificate to the FAA. However, the Summary indicates that the man "then applied for a new airworthiness certificate for the aircraft by submitting an application to the FAA in which he represented that the original airworthiness certificate had been lost, when he knew the certificate had been surrendered."

Another instance of "what were you thinking?". If the guy knew the certificate was surrendered to the FAA, he should have known that the FAA would have a record of that action and which would be reviewed by the FAA when it received the application for a replacement certificate. Of course, the OIG summaries never tell the whole story. Perhaps the case involved a misunderstanding by the man, or some other circumstances which led him to believe that applying for a duplicate airworthiness certificate would be okay.

In any event, this is yet another example of why it is extremely important that the information provided to the FAA on federal forms be accurate and complete.

Posted by Greg

June 17, 2011

NTSB Remands Intentional Falsification Case Back To ALJ After Court Of Appeals Reversal

In yet another intentional falsification case in which the NTSB's initial decision was reversed by a U.S. Court of Appeals, the Board has remanded the case back to the administrative law judge ("ALJ") for a hearing to consider the airman's state of mind at the time he completed the medical certificate applications upon which the FAA is basing its case. Administrator v. Manin involved the FAA's claim that the airman had intentionally falsified several medical applications by failing to disclose two domestic violence/disorderly conduct convictions.

The airman appealed the FAA's emergency revocation order to the NTSB, arguing that the FAA's claims were barred by the doctrine of laches, the stale complaint rule and the fact that he was not aware that the two convictions, which were apparently designated as "minor misdemeanors" under Ohio law, needed to be disclosed. Both parties moved for summary judgment on the FAA's claims. After a hearing on the motions, at which both the airman and the FAA presented evidence, the ALJ granted the FAA’s motion for summary judgment and dismissed the airman’s defenses. The ALJ determined that the FAA had "proceeded diligently" with the case and that the "minor misdemeanors" were still misdemeanors that needed to be disclosed on the medical application.

The airman appealed the ALJ's decision to the full Board which affirmed the ALJ's decision. The Board concluded that the airman's laches and stale complaint rule arguments "did not present a genuine issue of material fact that was sufficient to overcome disposition by summary judgment." According to the Board, since the FAA alleged that the airman lacked qualifications to hold an airman certificate, the stale complaint rule was not applicable. Similarly, it did not consider the doctrine of laches a sufficient basis for reversing the ALJ's decision. Finally, the Board agreed with the ALJ's finding that the airman should have known that the "minor misdemeanors" needed to be disclosed.

However, the Court of Appeals for the District of Columbia Circuit disagreed with the Board and granted the airman's appeal. The Court stated that the airman could assert a laches defense even though the stale complaint rule was inapplicable, but the airman would need to establish that he suffered actual prejudice to his ability to defend himself by the FAA's delay. The Court also held that the Board should have considered the airman's subjective understanding of the question on the medical certificate applications.

Based upon the Court's decision, the Board determined that it must remand the case to the ALJ. With respect to the airman's laches argument, the Board instructed the ALJ to consider whether the airman proved he suffered actual prejudice and whether he articulated how the delay specifically harmed him and provided evidence to support the defense.

The Board also observed that, based upon the Court's decision and the Board's decisions after it denied the airman's initial appeal, summary judgment is an improper means for disposing of intentional falsification cases. It then instructed the ALJ to make specific credibility findings concerning the airman's state of mind at the time he completed the applications in order to rule on the airman's defense that he didn't believe he needed to disclose his "minor misdemeanor" convictions.

At least now the airman will get a hearing on his defenses. It is unfortunate that he had to appeal to the Court of Appeals to get it. Hopefully now that several courts of appeal have forced the Board to establish precedent in intentional falsification cases, airmen will get their day in court the first time around. Of course, airmen will still need to persuade the ALJ on the merit of their defenses, which will remain a daunting task.

Posted by Greg

June 16, 2011

Credibility Is Key To Convincing ALJ In Intentional Falsification Case

As I have explained in previous posts, in order for an airman to convince an administrative law judge ("ALJ") that he or she did not subjectively know or understand that an answer on a medical certificate application was false, the ALJ must find the airman credible. An airman failed to do this in a recent case. In Administrator v. Ledwell, the airman was facing an emergency revocation order alleging that he failed to disclose his DWI arrest and subsequent convictions for both violation of the implied consent statute and reckless driving in response to Question 18(v) on his application for medical certificate.

At the hearing, the airman argued that "he did not think reckless driving was an alcohol-related conviction and he was not aware that he was convicted for a violation of implied consent." He also stated that he didn't think he was arrested, although he had previously admitted that fact in his response to the FAA's letter of investigation. Unfortunately, the ALJ didn't buy it.

The ALJ stated that he couldn't assess any credibility to the airman's statement that he didn’t understand the question on the application. He observed that "this wasn’t just some little stop and have coffee with a policeman out there on that road … I mean, he was placed in the back of the patrol car. He was taken downtown...And then to come and say that he had never been arrested is just not credible."

As a result, the ALJ concluded that the airman had intentionally falsified his answer on the medical application and he affirmed the FAA's order of revocation. Deferring to the ALJ's credibility determination, as it must, the NTSB agreed with the ALJ's determination that the airman was arrested for an alcohol-related driving offense. Accordingly, the Board denied the airman's appeal and affirmed the ALJ's decision.

Although the airman and his attorney made the right arguments, unfortunately they were not able to persuade the ALJ. In order to convince an ALJ, an airman will need sufficient facts to support his or her defense. That will continue to be a tough burden for airmen in intentional falsification cases.

Posted by Greg

June 15, 2011

NTSB Affirms ALJ's Decision After Ninth Circuit Reversal

In a recent decision, Administrator v. Finazzo the NTSB affirmed an administrative law judge's ("ALJ") decision after the Ninth Circuit Court of Appeals reversed the Board's earlier substitution of its credibility determination for the determination made by the ALJ at the hearing. The case involved the FAA's claim that the airman had intentionally falsified nine medical applications by failing to disclose several physician visits, prescription medications she was taking, and certain diagnoses. After a hearing, the ALJ found the airman's testimony that she was unaware of certain diagnoses was credible and that the undisclosed physician visits were not in reference to a material fact. The ALJ also determined that the FAA had failed to prove that the airman was "currently" taking the prescribed medications. As a result, the ALJ held that the FAA had not met its burden of proving the airman intentionally falsified her medical applications.

The FAA appealed the ALJ's decision to the full Board which reversed the ALJ's decision. The Board "concluded the weight of the evidence was directly contrary to the law judge’s assessment that [airman’s] testimony was credible." It reversed the ALJ's decision and found that the FAA had proven the allegations of intentional falsification.

However, in granting the airman's appeal of the Board's decision, the Ninth Circuit subsequently ruled that the Board did not rely upon sufficient evidence in rejecting the ALJ's credibility assessment. The Court also indicated the Board should not have considered certain evidence as persuasive in light of other more favorable testimony concerning the airman’s truthfulness.

On remand, the Board initially reiterated its standard that "resolution of a credibility determination, unless made in an arbitrary or capricious manner or unless clearly erroneous, is within the exclusive province of the law judge." Unless the testimony is inherently incredible or inconsistent with the overwhelming weight of the evidence, the Board must defer to an ALJ's credibility finding even if other evidence in the record could have been given greater weight. The Board then concluded that it was compelled to affirm the ALJ's credibility determinations and decision.

The Board also noted in a footnote that the ALJ's determination that the airman "did not falsify the application by failing to list all prescription drugs because, at the moment respondent completed the application, she was not using the medications, is wrong as a matter of law." According to Board precedent, "brief abstentions from a medication do not mean that an applicant is not 'currently' using the medication." For the record, the Board then stated that "[o]ur opinion here does not represent affirmation of the law judge’s incorrect statement concerning the issue of current use of medications."

This case is consistent with recent cases in which the Board, and several federal circuit courts of appeal, have held that an airman's subjective knowledge when filling out the medical application is a factual and credibility determination that must be made by the ALJ at a hearing. If the airman can convince the ALJ that he or she didn't know or understand that an answer was false, then the Board will have to defer to that determination unless it is contrary to the overwhelming weight of evidence. Unfortunately, that is usually a very difficult task in intentional falsification cases.

Posted by Greg

June 14, 2011

Submitting A "Certified Security Concern" To Block Flight Tracking

Under the FAA's plan to dismantle the BARR program, a "Certified Security Concern" must be submitted to the FAA by July, 5, 2011 in order to maintain N-number blocking after the FAA/Subscriber Memorandum of Agreement Amendment ("MOA") is effective August 2, 2011. According to the MOA, an aircraft owner or operator will have to certify that it has a valid security concern by either demonstrating a generic factual justification for a specific security concern or showing that it meets the Treasury requirements of 26 C.F.R. section 1.132-5(m) for a business-oriented security concern in order to have its N-number blocked.

A business-oriented security concern requires the aircraft owner or operator to show that the facts and circumstances establish a specific, rather than a generalized, basis for concern regarding the safety of the employee. The regulation lists examples such as a "threat of death or kidnapping of, or serious bodily harm to, the employee or a similarly situated employee because of either employee's status as an employee of the employer" or a "recent history of violent terrorist activity (such as bombings) in the geographic area in which the transportation is provided."

The aircraft owner or operator may establish a bona fide business-oriented security concern satisfactory to the FAA by submitting a written certification consistent with Section 1.132-5(m) that is signed by an appropriate company official. The certification may request a period in excess of 12 months, but a new certification supporting the security concern will need to be filed before the expiration of the then-current 12-month period in order to avoid a lapse. The certification may be sent to the FAA via e-mail or U.S. Mail.

If you have questions regarding the certification required, you may contact Barry Davis, U.S. Department of Transportation, FAA System Operations Service Unit, Programs Directorate, ATO-R, barry.davis@faa.gov.

Posted by Greg

June 13, 2011

CFI Sentenced For Falsifying Medical Certificate Application

According to a Summary Report issued by the Department of Transportation Office of Inspector General, a CFI in Pennsylvania was recently sentenced in U.S. District Court to 6-months home confinement, followed by 30-months of probation, and $2,600 in fines, for intentionally falsifying his application for a medical certificate. He is also prohibited from applying for a pilot certificate for a period of three years.

According to the report, the CFI admitted that he intentionally failed to disclose his diagnosed substance abuse and mental disorder on his medical application because he was afraid the FAA would revoke his commercial pilot and flight instructor certificates. Unfortunately, the CFI was mistaken. A disclosed diagnosis of substance abuse and mental disorder would have had no effect on his commercial pilot or his flight instructor certificates. The disclosure would, however, have resulted in denial of an application for medical certificate, although it may still have been possible to obtain a special issuance medical certificate if the airman met the FAA's requirements.

This case is yet another good example of the severe consequences an airman could face for falsifying a medical application. Sadly, and also ironically, by failing to disclose his disqualifying condition, not only has the CFI lost his medical certificate, but I am certain his other airman certificates were also revoked. If the CFI had talked to an aviation attorney before applying for the medical certificate, he would likely still have his commercial and CFI certificates.

Posted by Greg

June 10, 2011

NTSB Issues Safety Recommendations As A Result Of Alaskan Turbine Beaver Accident

The NTSB today issued five recommendations as a result of its investigation into the 2010 turbine beaver accident that claimed the life of then former Alaskan Senator Ted Stevens. Safety Recommendations A-11-048 through A-11-051 are directed to the FAA and recommend that the FAA:
  • Consult with appropriate specialists and revise the current internal Federal Aviation Administration guidance on issuance of medical certification subsequent to ischemic stroke or intracerebral hemorrhage to ensure that it is clear and that it includes specific requirements for a neuropsychological evaluation and the appropriate assessment of the risk of recurrence or other adverse consequences subsequent to such events. (A-11-48);

  • Correct the deficiencies with the in-service automated weather sensor system (AWSS) stations, specifically the known problems with present weather sensors and ceilometers, to ensure that the AWSS stations provide accurate information as soon as practical. (A-11-49);

  • Implement a collaborative test program in Alaska between the Federal Aviation Administration, the National Weather Service (NWS), the local academic community, and private entities to establish the viability of relaying weather information collected from airborne aircraft equipped with existing data-link technology, such as universal access transceivers, to the NWS Alaska Aviation Weather Unit in real-time. (A-11-50); and

  • If the Federal Aviation Administration’s test program recommended in Safety Recommendation A-11-50 establishes that the use of existing data-link technology, such as universal access transceivers, is a viable means of relaying collected information in real-time from an airborne platform, encourage and provide incentives to data link-equipped aircraft operators in Alaska to outfit their aircraft with weather-sensing equipment for real-time data relay. (A-11-51)

Safety Recommendation A-11-052 is directed to AOPA and recommends that the association:
  • Educate pilots of 14 Code of Federal Regulations Part 91 flight operations about the benefits of notifying passengers about the location and operation of survival and emergency communication equipment on board their airplanes. (A-11-52)

Of course, these safety recommendations are just that, recommendations. Neither the FAA nor AOPA are obligated to comply with the recommendations. In fact, the NTSB has made many recommendations in the past that with which the FAA has not complied.

However, with respect to the AOPA recommendation, I wouldn't be surprised if AOPA took some action in response to the recommendation. Although it seems to me that the passenger notification should already be part of a thorough pilot's pre-flight briefing of his or her passengers.

Posted by Greg

June 07, 2011

An Aviation Insurer's Denial Of Coverage After Breach Of Insurance Policy May Depend Upon Causal Connection

If you are in an aircraft accident or you suffer a loss will your aviation insurance policy provide coverage when you need it? That depends.

Aircraft insurance policies have requirements, conditions and provisions with which the insured must comply in order for the policy to provide coverage. These requirements often mandate the condition of the aircraft, qualifications and currency of the pilot and accuracy of the information provided by the insured to the insurance company.

If an accident or loss occurs, and a policy’s provision has been breached by the insured, the insurer may have the right to deny coverage. In that situation, the insured could find that he or she is without coverage. But, you may ask, “What if the breach of a policy provision is unrelated to or had nothing to do with the accident or loss, will coverage still be denied?”

The answer to that question will depend upon the state law applicable to the case. In some states (Florida, Hawaii, Illinois, Iowa, Mississippi, Montana, South Carolina, Texas and Washington) an insurer cannot deny coverage unless the breach was causally related to the accident or loss. In other states (Alaska, Arizona, California, Colorado, Georgia, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, North Carolina, Oregon, Pennsylvania, South Dakota, Tennessee and Virginia) a causal connection between the policy breach and the accident or loss is not required for the insurer to deny coverage. The remaining states have not decided the issue one-way or the other.

If you live in a state that does not require a causal connection between a policy breach and the accident or loss, you need to make sure you comply with all of the provisions and requirements contained in your policy. Failure to comply could very well result in a denial of coverage if you are ever involved in an accident or loss.

If you live in a state in which a causal connection is required between a policy breach and an accident or loss, the insurer will have the burden of proving the existence of a causal connection. That may or may not be easy, depending upon the circumstances.

In either case, you would be fighting for coverage. In the aftermath of an accident or loss, a fight over coverage is the last thing an insured should have to worry about. To avoid these situations and to ensure that you will have coverage when you need it, you need to be aware of and comply with the requirements and conditions of your aviation insurance policy. Then you can enjoy the security of the aviation insurance policy for which you are paying your premiums.

Posted by Greg

June 03, 2011

April-Issued Certificate Re-Registration Deadline Approaches

If you own an aircraft that was registered in the month of April of any year, your aircraft must be re-registered by June 30, 2011. Since the window for online registration has closed, if you haven't done so already, you will need to submit your re-registration application to the FAA by mail. You should submit your re-registration application as soon as possible since you won't be able to operate your aircraft legally after June 30 until you receive your new registration certificate.

For May-issued certificates, aircraft owners may submit re-registration applications now through July 31, 2011. After July 31, those aircraft may not be operated legally until the owner receives the new registration certificate. You can re-register May-issued certificates online here by entering the aircraft's N-number and re-registration code to begin the process, or you may submit a written re-registration application to the FAA via mail.

For a discussion of the FAA's re-registration requirements, please read my article Understanding The FAA's New Aircraft Re-Registration And Renewal Requirements.

Posted by Greg

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