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October 27, 2011

What Happens When You Check "Yes" To Question 18(v) On An FAA Medical Application?

If an airman applies for an FAA Medical Certificate and checks "yes" to question 18v (have you ever had an arrest, any conviction involving driving while intoxicated by, while impaired by, or while under the influence of alcohol or a drug etc.), he or she can expect to be asked for certain information and documents by the aviation medical examiner ("AME"). The first question will be "what was the airmanís blood alcohol level?" In order to confirm what the airman tells the AME, he or she will then ask to see a copy of the police report of the arrest. Be aware that this is in addition to any documents the airman receives when he or she shows up at court and the airman will likely have to specifically request a copy from the prosecuting attorney.

Why is the police report necessary? The FAA wants the report of the arresting officer to review how the airman was detained, his or her reaction to the stop, and whether the airman refused to submit to blood alcohol testing (or the blood alcohol level ("BAC") when he or she did submit). This information is used by the AME to determine whether the airman has a substance abuse/dependence condition that would disqualify the airman from being issued a medical certificate.

If the airman's BAC was 0.15 or greater, or the airman refused to be tested, or this wasn't the airman's first DWI/DUI, the AME will have to defer the airman's application to FAA Aeromedical in Oklahoma City. The airman can then expect to receive a letter requiring him or her to obtain a current substance abuse evaluation. If the BAC was less than 0.15, the AME may issue a medical certificate to the airman.

So, if you are arrested for DWI/DUI, make sure you obtain copies of the court documents AND the police report. Also, don't forget that you have to separately report the accompanying driver's license suspension/revocation and any resulting conviction for DWI/DUI to the FAA within 60 days under FAR 61.15(e).

Posted by Greg

October 19, 2011

FAA Proposes Amendment To Part 43 To Allow Pilots To Update Nav-System Databases

In a Notice of Proposed Rulemaking ("NPRM") published today, the FAA is proposing to amend FAR 43.3 to allow pilots of aircraft operated under Parts 121, 125, 133, 135, and 137 ("certificated operations") to update Nav-System databases. (Note that this NPRM does not apply to aircraft operated under FAR Part 91. Pilots operating aircraft under Part 91 are already allowed to update Nav-System databases).

Under the NPRM, "Nav-System databases" would include "self-contained, front-instrument panel- mounted and pedestal-mounted air traffic control (ATC) navigational system databases (excluding those of automatic flight control systems, transponders, and microwave frequency distance measuring equipment (DME), and any updates that affect system operating software)". Currently, the task of updating a Nav-System on an aircraft engaged in certificated operations is categorized as preventive maintenance under Part 43, Appendix A, paragraph (c)(32) and must be performed by a certificated mechanic or repair station. Under the NPRM, pilots operating aircraft engaged in certificated operations would be allowed to upload the current database rather than transporting a certificated mechanic to the aircraft, or flying the aircraft to a repair station.

The FAA believes that the NPRM "would reduce workloads for pilots and ATC and reduce compliance-related operational costs" but, "it also may have a negative economic impact on certificated mechanics and repair stations that currently perform required updates for affected operations." However, it then concludes that "there would be minimal costs imposed by the proposed rule."

Comments to the NPRM are due on or before December 19, 2011. If you have technical questions regarding the NPRM, you may contact Chris Parfitt, Flight Standards Service, Aircraft Maintenance Division--Avionics Maintenance Branch, AFS-360, Federal [[Page 64860]] Aviation Administration, 950 L'Enfant Plaza, SW., Washington, DC 20024; telephone (202) 385-6398; facsimile (202) 385-6474; e-mail chris.parfitt@faa.gov. For legal questions, contact Viola Pando, Office of the Chief Counsel, Regulations Division--Policy and Adjudication Branch, AGC-210, Federal Aviation Administration, 800 Independence Ave., SW., Washington, DC 20591; telephone (202) 493-5293; e-mail viola.pando@faa.gov.

Posted by Greg

October 12, 2011

FAA Extends Compliance Date For Turbojet Pilots To Complete PIC Proficiency Check

In a Final Rule Correction published today, the FAA is correcting the compliance date for the Final Rule it published on August 31, 2011. As you may recall, the Final Rule established a pilot in command proficiency check requirement for PICs of turbojet aircraft. However, since the Final Rule will be effective October 31, 2011, the FAA realized that the 60 days between publication of the Final Rule and its effective date did not provide sufficient time for pilots to comply with the new requirement. As a result, the FAA is extending the compliance date to October 31, 2012 to provide a one year transition period within which turbojet pilots can complete an FAR 61.58 PIC proficiency check required by the Final Rule.

Posted by Greg

October 07, 2011

Can A Private Pilot Advertise On Facebook For Expense-Sharing Passengers?

This was one of the questions addressed in an October 3, 2011 Legal Interpretation issued by the FAA's Office of Chief Counsel. The individual requesting the interpretation posed the questions in the context of a proposed trip to a wedding in which the pilot would receive a pro-rata share operating expense reimbursement from additional passengers pursuant to FAR 61.113(c). The questions presented were:
  1. Whether the pilot may advertise, on Facebook, the specific time and date that he was traveling in order to carry two additional passengers with him in exchange for a pro-rata reimbursement of the operating expenses;

  2. If he receives a response to his Facebook post from two friends that expressed an interest in traveling with him in order to attend a baseball game whether he and his passengers share a "common purpose"?

  3. Whether he may post the same information on a fixed based operator's (FBO) bulletin board instead of on Facebook; and

  4. Whether he could receive the pro-rata expenses through Paypal since Paypal extracts a 3% commission from any fees paid through their service.

The Interpretation initially noted that FAR 6l.113( c) "allows a private pilot to receive a pro-rata reimbursement from his passengers for fuel, oil, airport expenditures, or rental fees, so long as the pilot and his passengers share a bona fide common purpose for conducting the flight." It went on to discuss "common carriage," which is not allowed without a FAR Part 119 commercial operating certificate. If an operator is "holding out" to the public or a segment of the public, that "is the 'crucial determination' in deciding if one has engaged in common carriage or not. According to the Interpretation, holding out is accomplished through any "'means which communicates to the public that a transportation service is indiscriminately available' to the members of that segment of the public it is designed to attract." This can be done through signs, advertising or even where an operator has a reputation to serve all.

With respect to advertising the specific time and date of his trip on Facebook to his "friends/family/acquaintances," the Interpretation stated that would be acceptable as a private pilot, since he would not be holding out to "the general public." However, since the pilot didn't provide any additional details about the nature of the Facebook post or how large his Facebook audience was, the FAA cautioned that Facebook advertising could still be construed as holding out. For example, if the pilot advertised to a class such as all Facebook users, that could still be considered holding out if the advertising was expressing a willingness to provide transportation for all within that class.

Regarding the "common purpose," the Interpretation noted that "[t]he existence of a bona fide common purpose is determined on a case-by-case basis." It then concluded that based on the facts presented by the pilot, it appeared to be a bona fide common purpose, since the destination was dictated by the pilot, not the passengers, and he and his passengers both had personal business to conduct at the destination. Thus, the purpose of the flight was not just to transport the pilot's passengers to the destination.

Finally, the Interpretation cautioned that putting the Facebook post on the bulletin board at an FBO could be considered holding out. It also noted that "payment through Paypal would suggest that there is an interest in carrying passengers with whom there is no previous personal relationship and that the offer to accept passengers is being made to the general public," which would suggest that the pilot was "holding out." However, in specific response to the pilot's question, stated that whether or not the passengers reimburse the pilot through an online payment system such as Paypal has no bearing on the legality of the payment so long as the pilot does not pay less than his pro-rata share of expenses.

This Interpretation provides some fact specific insight into determining whether a private pilot may share expenses under FAR 61.113(c). For additional discussion on the topic, please read my article Shared Expenses and the Private Pilot.

Posted by Greg

October 05, 2011

Duct Tape Over Helicopter's Fuel Filler Port Results In Civil Penalty For Air Tour Operator

After a hearing in a recent civil penalty case, a administrative law judge ("ALJ") issued an Order assessing a $22,500 civil penalty against an air tour operator for operating ten passenger carrying flights with duct tape over the fuel filler port of a Bell 206 helicopter. The ALJ determined that the operator violated FARs 91.7(a) (prohibiting operation of an aircraft in an unairworthy condition) and 91.13(a) (prohibiting careless and reckless operation of an aircraft).

During the hearing, the pilot admitted that he placed the duct tape over the fuel filler port after he found the cap missing and was unable to locate the cap or a replacement. The owner of the air tour operator also admitted that he was aware of the duct tape over the fuel filler port. However, the air tour operator and the FAA disagreed about the airworthiness of the helicopter.

Of course the FAA argued that the aircraft was not airworthy because (1) it did not conform to its type certificate which, per Bell engineering drawings, required use of a fuel filler cap; and (2) it was not safe for flight because the duct tape could allow fuel contamination or leaking of fuel that could cause a fire. The air tour operator argued that it had received assurances from "knowledgeable and experienced people in the industry," including a Bell engineer, that the duct-tape solution did not render the helicopter unairworthy.

The ALJ agreed with the FAA. He concluded that the helicopter failed to conform to its type certificate because it "did not match its essential engineering drawings." The ALJ also found that "the prospect of fire and the possibility of fuel depletion were too great to be consistent with minimum mandated levels of aircraft safety" and rendered the helicopter unsafe. He went on to observe that operation of the helicopter in the unairworthy condition "endangered life and property to an unacceptable degree" and "[i]ts actions risked fuel contamination and created an intolerable risk of fire" As a result, the ALJ concluded that the air tour operator violated FAR 91.13(a) and he rejected the air tour operator's argument that the FAR 91.13(a) violation should be treated merely as a residual violation.

Although the FAA was seeking a $25,000 civil penalty, the ALJ found that the air tour operator's reliance on the opinion from a Bell technician was a mitigating factor. However, since the air tour operator did not produce the Bell technician to testify at the hearing or offer even a written statement from the technician, the ALJ only gave the mitigation argument a little weight since the testimony was pure hearsay. The ALJ concluded that the sanction amount of $22,500 "suitably accounts for the totality of the circumstances of this case" and was otherwise substantial enough to have "sufficient 'bite,' or deterrent effect."

Just goes to show that although duct tape has a million and one uses, using it to "fix" an aircraft may not be the best idea.

Posted by Greg

October 04, 2011

Pilot's Certificate Is Suspended Pending Successful Completion Of A "709 Ride"

The NTSB recently affirmed the suspension of an airman's private pilot certificate until he submitted to and successfully completed a re-examination of his qualifications. In Administrator v. Green, the airman struck a fence on take-off and substantially damaged the aircraft. After the incident, and pursuant to 49 U.S.C. 44709, the FAA sent the airman two letters requesting that he appear for a re-examination of his competency to hold his private pilot certificate. When the airman failed to appear for the examination, the FAA issued an emergency order revoking his private pilot certificate.

The airman appealed the order and at the hearing before the administrative law judge ("ALJ") he admitted that he was involved in the incident and that he had not submitted to the re-examination. He argued that he didn't know how the incident occurred and that his recent flight review under FAR 61.56 was conducted by an FAA designated pilot examiner and, therefore, it met the requirements of 49 U.S.C. 44709. The ALJ disagreed and concluded that the evidence concerning the incident indicated the FAA had a reasonable basis to question airmanís competence. He also stated that the airman hadn't provided any evidence of his alleged flight review. As a result, the ALJ issued an order suspending the airman's private pilot certificate pending his successful completion of the re-examination.

On appeal to the full Board, the airman argued that the FAA did not prove that he lost directional control of the aircraft on the flight in question. He also argued that the FAA's request improperly stated that he should complete a "soft field takeoff" when the airfield at issue was frozen at the time of the incident. Finally, he argued that his satisfactory completion of a flight review with "an FAA examiner" after the incident should count as a re-examination.

Not surprisingly, the Board rejected the airman' arguments. The Board initially observed that the FAA has significant discretion in determining whether a re-examination is warranted. Additionally, since the scope of the Board's review of re-examination requests is very narrow and limited to the reasonableness of the request, the Board refused to consider the airman's argument that he shouldn't have to perform soft-field take-offs. The Board concluded that the evidence showing the damage to the airmanís aircraft after the incident, coupled with his failure to dispute that the incident occurred, supported the ALJ's finding that the FAA had a reasonable basis for requesting re-examination of the airmanís qualifications.

With respect to the airman's argument that his flight review met the re-examination requirement, the Board observed that a flight review under FAR 61.56 has different requirements from those of a reexamination under 49 U.S.C. ß 44709(a). A request for re-examination occurs upon request, rather than on a periodic basis. Additionally, since the airman did not provide any authority for his argument, nor did the Board find any authority for the proposition, the Board refused to substitute a flight review for a re-examination.

Fortunately for the airman, his certificate was only suspended, rather than revoked. Unfortunately, the airman wasted time, energy and money appealing a case where the FAA's burden is so low that it is very, very difficult for an airman to win. Had the airman talked with an aviation attorney prior to appealing the FAA's order, he would likely have been told to focus his resources on preparing for and successfully completing the re-examination rather than filing an appeal. Oh well. At least now the airman simply needs to successfully complete the re-examination to get his certificate back.

Posted by Greg

October 03, 2011

Presidential Memorandum Authorizes DOT To Continue To Make Insurance Available To U.S. Flag Commerial Carriers

By Memorandum of September 28, 2011--Provision of Aviation Insurance Coverage for Commercial Air Carrier Service in Domestic and International Operations published in the Federal Register today, the President has authorized the Department of Transportation to continue to make insurance coverage available to U.S. Flag Commercial Carriers until September 30, 2012.

This insurance coverage was originally implemented pursuant to 49 U.S.C. 44302 as a direct result of the events of September 11, 2001. Following the terrorist attacks, most aviation insurers cancelled the war risk coverage they previously provided to air carriers. The insurers that did not cancel the coverage increased their premiums so significantly that the government intervened to ensure that air carriers would still be able to obtain the needed coverage. The Presidential Memorandum merely extends the time period for that legislative program.

Posted by Greg

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