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August 31, 2011

FAA Amends Pilot, Flight Instructor, And Pilot School Certification Regulations

Exactly two years after issuing a Notice of Proposed Rulemaking ("NPRM") proposing changes to FAR Parts 61, 91, and 141, the FAA today published a Final Rule amending those regulations as well as FAR Part 142. Key changes to the regulations include the following:

Recurrent Proficiency Check for a Pilot in Command of a Single- Piloted Turbojet-Powered Aircraft
The Final Rule extends the requirement of FAR 61.58 for recurrent proficiency checks to pilots operating single-piloted turbojet-powered aircraft. However, for pilots of multi-seat experimental jets, the FAA will accept any of the following as an alternative:
  1. A single proficiency check by an EAE in any one of the experimental jet aircraft for which the airman holds an authorization to operate if conducted within the prior 12 months;

  2. A single proficiency check by an EAE in any experimental jet, if conducted within the prior 12 months;

  3. Maintaining qualification under an Advanced Qualification Program (AQP) under Subpart Y of part 121;

  4. Any pilot proficiency check given in accordance with Subpart K of Part 91, Parts 121, 125, or 135 conducted within the prior 12 months if conducted in a turbojet-powered aircraft; or

  5. Any other FAR 61.58 proficiency check conducted within the prior 12 months if conducted in a turbojet-powered aircraft.

Any one of the these checks will apply to the PIC privileges for all of the experimental jets for which the pilot holds an authorization for a given 12-month period. In the absence of such a check, a pilot may continue to operate the jet aircraft for which the pilot holds authorizations, but he or she will not be able to carry passengers. (Note: This requirement does not apply to pilots of experimental jet aircraft that, through original design, possess only a single seat.)
Application for and Issuance of an Instrument Rating Concurrently With a Private Pilot Certificate
The Final Rule amends FAR 61.65(a) to allow an airman to apply for an instrument rating concurrently with a private pilot certificate. Additionally, the pilot seeking combined private pilot certification and an instrument rating will be able to credit up to 45 hours (47 hours for the helicopter rating) of the required 50 hours of cross-country flight time as PIC when the student pilot is performing the duties of pilot in command while accompanied by an instructor. However, the 5 hours of solo flight, as the sole occupant of the aircraft, required under FAR 61.109(a)(5)(i) (single-engine), FAR 61.109(b)(5)(i) (multiengine), and FAR 61.109(e)(5)(i) (powered- lift), or 3 hours of solo flight required under FAR 61.109(c)(5)(i) (helicopter) must still be met. This provision applies only to training conducted for a combined private pilot certificate and instrument rating.
Conversion of a Foreign Pilot License to a U.S. Pilot Certificate
The Final Rule amends the regulations to allow the conversion of a foreign pilot license to a U.S. certificate under the provisions of a Bilateral Aviation Safety Agreement (BASA) and Implementing Procedures for Licensing (IPL).
Revision of the Definition of "Complex Aircraft"
The Final Rule revises the definition of a "complex aircraft" to include airplanes equipped with a full authority digital engine control ("FADEC"). However, it does not change the definition of those aircraft that were previously defined as complex.
Expanded Use of Airplane With a Single Functioning Throwover Control Wheel for Certain Kinds of Flight Training
The Final Rule amends FAR 91.109 to allow pilots to use a functioning throwover control wheel for certain flight training including the flight review required by FAR 61.56, and the recent flight experience and instrument proficiency check required by FAR 61.57. Thus, exemptions will no longer be required to use these type of aircraft for flight training. The instructor will still need to have logged 25 hours of PIC flight time in the applicable make and model of aircraft, but that time will not have to be in an aircraft having a throwover control wheel.
Exception to Requirement for Ground Training Facility When Training Is an Online Computer-Based Training Program
Pilot schools providing training courses in an online computer-based training program will no longer need to describe each room used for ground training. Thus, the amendment extends distance learning to Part 141 schools.
The Final Rule's amendments become effective October 31, 2011. If you have technical questions regarding the amendments, contact Gregory French, Airman Certification and Training Branch, General Aviation and Commercial Division, AFS-810, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 493-5474; e-mail Gregory.French@faa.gov. Alternatively, if you have legal questions regarding the amendments, contact Michael Chase, Esq., Office of Chief Counsel, AGC-240, Regulations [[Page 54096]] Division, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-3110; e-mail Michael.Chase@faa.gov.

Posted by Greg

August 30, 2011

FAA Issues Inconclusive Operational Control Legal Interpretation

The FAA recently issued a legal interpretation in response to a request regarding whether the use of a management company might affect the assignment of operational control under certain aircraft dry-lease arrangements. Unfortunately, the legal interpretation didn't really answer the question.

In the August 26, 2011 Legal Interpretation, the presented fact pattern involved an aircraft owner who wanted to contract with an aircraft manager to manage its aircraft. The aircraft manager would be responsible for maintenance of the aircraft, procuring pilots, providing pilot training, providing all consumables such as fuel and oil, providing scheduling services, and providing catering. The aircraft owner also wanted to dry lease some of its aircraft to other individuals. Although the aircraft owner had a "strong preference" for its lessees to use the the aircraft manager's services and "would encourage them to do so", the aircraft owner still intended for the aircraft lessee(s) to retain operational control of the aircraft operating under the dry lease arrangement.

The Interpretation initially references FAR 1.1 which defines operational control, with respect to a flight, as "the exercise of authority over initiating, conducting or terminating a flight" and then observes that "exercise of authority" means "the person having operational control must be responsible for and, in fact, exercise the operational expertise required to operate an aircraft." The FAA determines who has operational control based upon the specific facts and circumstances of each case. According to the FAA,
"[w]henever the aircraft and flight crew are furnished by separate and unrelated persons, it is ... the policy of the FAA to consider the lessee of the aircraft as the operator so long as he retains control, direction, and responsibility of the aircraft .... [However], [w]henever the instrumentalities of transportation, i.e., the aircraft and crew, are furnished by separate persons acting in concert, the situation is not the same. In such cases, the question to be considered is whether the net effect of the actual operational arrangements of the parties places responsibility for the operation of the aircraft in the lessor of the aircraft, the person furnishing the flight crew, or both."
With respect to lease arrangements, operational control is determined "based on the terms of each lease as well as how the arrangement actually operates." The FAA then concludes that the aircraft owner's interest in contracting with the aircraft manager to maintain the owner's aircraft and to schedule the aircraft owner's operations, in combination with the aircraft owner's desire to encourage lessees to procure pilots and crew from the aircraft manager, "may affect the FAA's operational control determination." As a result, the Interpretation states that the FAA would need to further review the situation to determine whether the arrangements were truly dry-leases.

Other than explaining generally how the FAA views operational control, the Interpretation isn't particularly helpful. However, what is clear from the Interpretation, and important for aircraft owners and dry-lessees to keep in mind, is that the FAA will look beyond the terms of a dry-lease agreement to determine who has operational control. Thus, parties engaged in a dry-lease arrangement will need to not only have a properly drafted dry-lease, presumably with the help of an aviation attorney, but they will also need to act and operate the aircraft consistent with a dry-lease arrangement. A dry-lease agreement's words alone will not save an aircraft owner or lessee from an enforcement action if the FAA finds that the wrong party is exercising operational control.

Posted by Greg

August 26, 2011

FAA Advises Air Carriers And Other Pilot Employers To Save Pilot Records

On August 15, 2011 the FAA issued InFO 11014 (InFO is short for "Information for Operators") advising air carriers and other persons who employ pilots to prepare for and retain various records for transmission to the FAA's Pilot Records Database ("PRD"). As you may know, in 2010 the Airline Safety and Federal Aviation Administration Extension Act of 2010, Public Law 111-216, 124 Stat. 2348 (2010) (the "Act") was signed into law. The Act amends 49 U.S.C. 44703(h), the Pilot Records Improvement Act ("PRIA") by requiring the FAA to create the PRD to include pilot records to be provided by the FAA, air carriers and other persons who employ pilots. Air carriers required to perform background checks on a prospective pilot-hires will use the PRD to decide whether or not to hire the individual as a pilot. Under the Act, the FAA must maintain a pilot's records until it receives notice that the pilot is deceased.

The Act requires affected pilot-employers to provide the following records to the FAA for pilots employed on August 1, 2005 and thereafter:
  1. Records that are maintained under FARs 121.683, 120.111(a), 120.219(a), 125.401, and 135.63(a)(4), as applicable;

  2. records concerning the pilot's the training, qualifications, proficiency, or professional competence of the individual, including comments and evaluations made by check airmen designated in accordance with FARs 121.411, 125.295, or 135.337;

  3. records regarding any disciplinary action taken with respect to the individual that was not subsequently overturned; and

  4. records regarding any release from employment or resignation, termination, or disqualification with respect to employment.

Once the PRD is implemented, affected pilot-employers will need to provide the listed records to the FAA for inclusion in the PRD. Since the PRD has not yet been implemented, the FAA is recommending that affected pilot-employers take actions now to preserve the specified records that the pilot-employers will need to submit to the PRD.

This is also consistent with the FAA's February 11, 2011 Policy Statement in which it informed airmen that the FAA was suspending its policy of expunging certain records of legal enforcement actions against individuals. Since the Act requires that the PRD include summaries of enforcement actions in which individuals were determined to have violated the regulations, rather than expunging individual information after 5 years as before, the FAA must now keep these records until it receives notice that the individual is deceased.

If you have any questions or comments regarding InFO 11014 you should contact Jack O’Hare, Regulatory Support Division, Designee Quality Assurance Branch, AFS-600 at (405)-954-9808. Otherwise, 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

August 25, 2011

DOT Releases Second Half 2011 SIFL Rates

The U.S. Department of Transportation has released the Standard Industry Fare Level (SIFL) rates for the six-month period from July 1, 2011 to December 31, 2011. These rates are needed in order to apply the IRS's aircraft valuation formula to compute the value of non-business transportation aboard employer-provided aircraft and impute the income of the employee as required by the Internal Revenue Service Rules Section 1.61-21(g). The SIFL rates for the six-month period from July 1, 2011 to December 31, 2011, are: 0500 miles $0.2272; 501-1,500 miles $0.1732; over 1,500 miles $0.1665; and Terminal Charge of $41.53. If you are an employer and an employee or a non-employee guest or family member is flown on your aircraft, the flight is potentially taxable to the individual receiving the ride. The aircraft valuation formula applies on a per-flight, per-person basis and will be calculated using the distance in statute miles from where the individual boards the aircraft to where the individual deplanes.

Posted by Greg

NTSB Rejects ASRP Defense Where Airman's Conduct Was Not Inadvertent

In another blow to the Aviation Safety Reporting System ("ASRP") and the benefit it was intended to provide airman, the NTSB affirmed an administrative law judge's ("ALJ") finding that an airman's conduct, although not deliberate, was not inadvertent as required by the program. To find out more, please read my latest article on the case: Proving "Inadvertence" To Support An ASRP Waiver Of Sanction: Not As Easy As You Might Think

Posted by Greg

August 18, 2011

Common Carriage Versus Private Carriage

An August 11, 2011 Legal Interpretation discusses the difference between common carriage and private carriage and how the FAA determines in which type of carriage an aircraft operator is engaged. The Interpretation was issued in response to an inquiry from an FAR Part 125 certificate holder regarding its ability to enter into certain contracts with the United States government or foreign governments.

The FAA initially noted that Operations Specification ("OpSpec") ADO1, which is typically issued to Part 125 certificate holders, authorizes the certificate holder to conduct flight operations in non-common carriage and private carriage and prohibits operations carrying people or property for compensation or hire, where such operations result directly or indirectly from any person's holding out to the public to furnish transportation. Thus, if a Part 125 certificate holder were to engage in common carriage, that operation would be in violation of the operators OpSpecs.

Next, the Interpretation states that "[n]on-common carriage and private carriage for hire involve the carriage of persons or property that does not involve a holding out." An operator who engages in "non-common carriage" or "private carriage for hire" is often referred to as a "contract carrier." The Interpretation goes on to describe private carriage as carriage for one or several selected customers, which is often on a long-term basis and pursuant to an exclusive, mutual agreement. The key fact for the FAA is whether the operator has so many contracts that "a willingness to contract with anyone is implied." If the number of customers exceeds three, especially if the customers are entirely unrelated, the operator stands a good chance of being investigated for operating as a common carrier.

Next, the Interpretation observes that under Advisory Circular 120-12A Private Carriage Versus Common Carriage of Persons or Property "[a]n operator may be deemed to be a common carrier when it:
holds itself out to the public, or to a segment of the public, as willing to furnish transportation within the limits of its facilities to any person who wants it. Absence of tariff or rate schedules, transportation only pursuant to separately negotiated contracts, or occasional refusals to transport, are not conclusive proof that the carrier is not a common carrier. There are four elements in defining a common carrier: (l) a holding out of a willingness to (2) transport persons or property (3) from place to place (4) for compensation. This "holding out" which makes a person a common carrier can be done in many ways and it does not matter how it is done.
An operator may be holding out by advertising, through an agent or salespersons, or if the operator simply has a reputation of serving whoever makes contact with them. The Interpretation concludes that the final determination of whether an operator was engaged in common carriage "would be based on the nature and character of the operations involved, which would depend on the particular facts in each case."

The distinction between common carriage and private carriage applies to Part 91 operators as well. An operator conducting flights under FAR Part 91 may not engage in common carriage. Rather, that operator would need an operating certificate under FAR Part 119 and would likely conduct flights under FAR Part 135. If the FAA finds that a Part 91 or Part 125 operator is engaged in common carriage, you can bet an enforcement action will probably be in the operator's future.

Posted by Greg

August 15, 2011

Answers To Aircraft Dry Lease Questions

In an August 11, 2011 Legal Interpretation, the FAA discussed regulation of aircraft wet and dry leases. Under a dry lease of an aircraft the lessor provides the aircraft and the lessee supplies his or her own flight crew, retains operational control of the flight and may operate under FAR Part 91. Under a wet lease, the lessor provides both the aircraft and the crew and retains operational control of the flight, but the lessor is usually required to hold an operating certificate because the FAA considers it to be providing air transportation.

According to the Interpretation, "[a] key consideration in differentiating a dry lease from a wet lease is whether the aircraft and flight crew are obtained separately, or provided together as a package." For example, if the evidence shows that the parties are "acting in concert" to furnish an aircraft and crew, then the FAA would likely consider the arrangement a wet lease. However, whether an aircraft lease is a dry or wet lease is determined on a case-by-case basis.

The Interpretation goes on to state that the regulations do not limit the number of lessees that may lease an aircraft, nor do they establish hourly requirements for aircraft leases. Those issues are "contractual terms negotiated by the owner and the lessee." Additionally, a lessee may hire the same management company that is used by the owner, provided that the other facts and circumstances do not show that the arrangement is "merely a wet lease in disguise."

The interpretation also notes that a lessee may contract with the same flight crew that is contracted for by the aircraft owner. But again, only so long as the other evidence does not suggest that the arrangement is really a wet lease. The Interpretation states "[g]enerally the FAA would consider an arrangement where a person leases an aircraft from its owner, and secures the flight crew from another source to be a dry lease. If the aircraft and flight crew are provided as a package, the lease would be a wet-lease."

Finally, the Interpretation indicates that the FAA "does not have specific requirements regarding collection of payment for the flight crew. However, the method of payment may serve as indicia of whether the parties have entered into a wet- or dry-lease agreement."

If you enter into aircraft lease arrangements, you should become familiar with this Interpretation. However, the Interpretation only provides a general outline of how the FAA will review such arrangements. Since the "devil is in the detail," having an aviation attorney review your circumstances and then draft or review your written lease agreement can protect aircraft lessors and the pilots who operate the aircraft from FAA enforcement.

Posted by Greg

August 11, 2011

Violation of FAR 135.25(b) Requires Actual Operation While Air Carrier Did Not Have Exclusive Use Of At Least One Aircraft

In a recent civil penalty action, the FAA administrator actually reversed an administrative law judge's ("ALJ") assessment of civil penalty finding that the FAA had failed to prove its case. In The Matter of Helicopter Flite, Inc. the FAA alleged that an FAR Part 135 air carrier failed to have exclusive use of the only aircraft that it was authorized to operate under its operations specifications in violation of FAR 135.25(b) ("Each certificate holder must have the exclusive use of at least one aircraft that meets the requirements for at least one kind of operation authorized in the certificate holder's operations specifications."). The FAA issued an order assessing an $11,000.00 civil penalty against the air carrier. The air carrier appealed the order and requested a hearing before an ALJ.

After a hearing, the ALJ held that the FAA proved by a preponderance of the evidence that for a period of at least seven months the air carrier lacked exclusive use and possession of the only aircraft listed in its operations specifications in violation of FAR 135.25(b). He then assessed the full $11,000.00 civil penalty against the air carrier. Not surprisingly, the air carrier appealed the decision to the FAA administrator.

Initially, the Administrator agreed that the FAA did prove that the air carrier did not have exclusive use of the only aircraft listed on its operations specifications for approximately seven months. However, the Administrator went on to state that "it makes no sense to enforce this requirement by imposing a civil penalty unless there is evidence that the certificate holder continued to operate during the time period that it did not have exclusive use of at least one aircraft."

The Administrator reasoned that FAR 135.25(b) must have an implicit operation requirement, otherwise the FAA could assess a civil penalty if an air carrier's exclusive use aircraft was destroyed by fire or natural disaster. Similarly, if the air carrier wanted to sell its exclusive use aircraft, it would have to sell the aircraft and simultaneously purchase another aircraft to avoid being in violation of Section 135.25(b). As a result, the Administrator concluded "[s]imply not having an exclusive use aircraft will not be considered as constituting a violation of Section 135.25(b), warranting the assessment of a civil penalty, absent evidence of operation under Part 135."

Turning to the facts of the case, the Administrator observed that the FAA did not introduce any evidence at the hearing to show that the air carrier operated any aircraft while it did not have exclusive use of the only aircraft listed on its operations specifications. Consequently, the Administrator reversed the ALJ, finding that a civil penalty was not warranted in the case.

The Administrator's legal analysis and reasoning in this case make sense. And, it is nice to now have some legal precedent for how FAR 135.25(b) should be interpreted and applied. This would be a good case for the Administrator to distribute to its aviation safety inspectors. But if that doesn't happen, at least this case is available to air carriers and their aviation attorneys should the need ever arise.

Posted by Greg

August 10, 2011

ALJ Admonishes Overzealous Non-Attorney Representative In Civil Penalty Action

An administrative law judge ("ALJ") slapped the wrist of a non-attorney representative for a respondent in a recent FAA civil penalty action. In The Matter of M & R Helicopters, LLC, the representative filed 53 pre-trial motions. Many of these motions were duplicative and requested relief that was inappropriate and unsupported by the facts or procedural posture of the case. The ALJ denied all 53.

In denying the motions, the ALJ initially noted that the representative advocated the respondent's position with "passion and zealotry." However, the ALJ went on to cite the representative for failing to sufficiently "appreciate the solemnity and decorum of the legal process." The ALJ further stated
"the process and its participants must be treated with appropriate dignity. It is not consistent with proper decorum to demean Complainant's attorneys and/or this process. Such language lacks the dignity expected of participants in this or any other legal proceedings. All parties should use language and make arguments which uphold the dignity of the proceeding of which they are a part."
Finally, the ALJ concluded with the warning that "[v]iolation of these principles will be dealt with appropriately."

This is an extreme example of how a non-attorney representative can do more damage to your case than to help. In this situation, the representative has certainly not done his client any favors by making excessive, inappropriate motions and, in the process, alienating and likely annoying the ALJ. Zealous advocacy is one thing. But when the rules, civility and decorum are disregarded, then the process is miserable for everyone. For his client's sake, hopefully the representative will get the message and proceed more appropriately.

Posted by Greg

August 09, 2011

FAA Withdrawal Of Complaint In Civil Penalty Action Precludes Prevailing Party Status For Air Carrier

In a recent civil penalty decision, the FAA Administrator determined that an administrative law judge's ("ALJ") dismissal of the FAA's case with prejudice, after the FAA withdrew its complaint, did not make the accused air carrier a "prevailing party" for the purposes of the Equal Access to Justice Act ("EAJA"). Before we talk about the case, a brief EAJA refresher is in order.

The EAJA is found at 5 U.S.C. 504 and is implemented in 49 CFR 826. According to 49 CFR 826.1, “The Equal Access to Justice Act, 5 U.S.C. 504 (the Act), provides for the award of attorney fees and other expenses to eligible individuals and entities who are parties to certain administrative proceedings (adversary adjudications) before the National Transportation Safety Board (Board). An eligible party may receive an award when it prevails over the Federal Aviation Administration (FAA), unless the Government agency's position in the proceeding was substantially justified or special circumstances make an award unjust.” In order to determine whether EAJA fees are available, the key inquiries for an "applicant" (a certificate holder or target of a civil penalty action who is applying for an award of fees) are: (1) Is the Applicant a “prevailing party”? (2) Was the Applicant involved in an “adversary adjudication”? (3) Was the FAA’s position “substantially justified”? and (4) Were the fees actually “incurred” by the Applicant?

In the case of In the Matter of: Green Aviation Management Co., LLC the FAA accused the air carrier of violating several FARs and sought a $33,000 civil penalty. However, before the hearing, the FAA withdrew its complaint and the ALJ dismissed the case with prejudice as required by 14 C.F.R. § 13.215. Green Air then applied for attorney's fees under EAJA. However, the ALJ denied its application on the grounds that the FAA was substantially justified in pursuing its case against Green Air.

On appeal to the "FAA administrator," yes, the same administrator responsible for the FAA, the Administrator initially observed that in order to be a "prevailing party", the following elements must be present:
  1. there must be a court-ordered change in the legal relationship of the parties;

  2. the judgment must be in favor of the party seeking fees; and

  3. judicial relief must accompany the judicial pronouncement.

The Administrator determined that Green Air met some of the "prevailing party" requirements because the "order of dismissal with prejudice effected a material alteration of Green Air's legal relationship with the FAA because if the FAA tried to bring the same claim in the future, Green Air could rely successfully on a res judicata defense" which would be enforceable against the FAA. However, the Administrator then concluded that Green Air was not a "prevailing party" because the ALJ's dismissal, even though "with prejudice", was not "judicially sanctioned" because the ALJ did not have any discretion and was required by Rule 13.215 to dismiss the case "with prejudice." According to the Administrator, an ALJ's "exercise of discretion" was required to give the dismissal with prejudice "the necessary 'judicial imprimatur' so that the order constituted a 'judicially sanctioned change in the legal relationship of the parties'".

Unfortunately, after this decision, if a respondent in a civil penalty action wants any shot at an EAJA award, the respondent will have to have a hearing, obtain a favorable decision and hope the FAA does not withdraw/dismiss its case before then. By placing procedure before substance, the Administrator has certainly made it more difficult to ensure that the FAA is justified in pursuing its civil penalty cases.

However, the issue of whether a respondent in a certificate action, rather than a civil penalty action, can be a "prevailing party" when an ALJ dismisses a case with prejudice after the FAA withdraws its complaint remains undecided. NTSB Rule of Practice Part 821, which governs certificate actions, does not contain a provision similar to 14 C.F.R. § 13.215. As a result, it could be possible for a respondent to be a "prevailing party" under similar circumstances in a certificate action if the ALJ, presumably using his discretion since he is not otherwise bound by rule, dismisses the case with prejudice. Unfortunately, we will have to wait for the right case to see how this issue is decided.

Posted by Greg

August 04, 2011

Pilot's Admission Of Low Flight Results In 120-Day Suspension

The NTSB recently affirmed an order suspending an airman's commercial pilot certificate for 120 days as a sanction for violations of FARs 91.119(a) (minimum safe altitudes) and 91.13(a) (careless and reckless). In Administrator v. Garst the FAA alleged that the airman flew a Robinson R44 helicopter over a number of homes and businesses at an altitude of between approximately 100—300 feet and that, if the helicopter power unit failed during the low-altitude flight, the airman would not have been able to conduct an emergency landing without undue hazard to persons or property on the surface. The FAA issued an order of suspension which the airman appealed.

At the hearing, FAA witnesses testified that they observed the low flight and/or that the pilot had admitted at a local commission meeting that he flew the helicopter at a low altitude. The airman denied that he was the pilot for the low flights and stated that his statements to the commission were "not literally truthful." However, based upon all of the evidence, the Administrative Law Judge ("ALJ") determined that the airman's testimony was not credible and the ALJ affirmed the FAA's suspension order.

On appeal to the full Board, the airman argued that the FAA's witnesses' testimony did not support the ALJ's decision. After initially noting the deference it must give to the ALJ's credibility determinations, the Board concluded that the airman's testimony, in light of his admissions and the other evidence, was simply not credible. As a result, the Board affirmed the ALJ's order of suspension.

The moral of the story: If you are violate the regulations, intentionally or otherwise, it is probably not a good idea to brag about it or admit it to a bunch of witnesses.

Posted by Greg

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