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April 26, 2012

August-Issued Aircraft Certificate Re-Registration Deadline Approaches

If you own an aircraft that was registered in the month of August of any year before October 1, 2010, your aircraft must be re-registered by June 30, 2012. 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, 2012 until you receive your new registration certificate. Online re-registrations will be accepted until April 30, 2012. After that, you will need to submit your re-registration application to the FAA via mail. Online re-registration applications may be submitted 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. Additionally, the FAA has a Frequently Asked Questions page regarding re-registration which you can view here.

Posted by Greg

April 18, 2012

May A Pilot With Less Than 250 Hours PIC Logged Flight Time Apply For An ATP?

That was the question recently posed to, and answered by, the FAA's Office of Chief Counsel in a April 13, 2012 Memorandum. The short answer is yes, "a pilot may apply for an ATP with fewer than 250 hours of flight time as pilot in command."

The Memorandum initially observed that under FAR 61.159(a)(4) "an applicant for an ATP certificate must have '250 hours of flight time in an airplane as a pilot in command, or as second in command performing the duties of pilot in command while under the supervision of a pilot in command, or any combination thereof[.]'" However, the Memorandum goes on to explain the FAA's previous clarification that "a copilot employed by a certificated air carrier may credit ... that time during which he performs all the functions of the pilot-in-command including landings and takeoffs, en route flying, low approaches, and ground functions." In order to obtain that type of credit, the flight time would need to be recorded and certified by the PIC under whose supervision the airman was performing the PIC functions.

This is similar to a situation governed by FAR 61.51(e)(l)(iv) which allows an airman with a commercial pilot or ATP certificate that is appropriate to the category and class of aircraft to log PIC time while the airman is performing "the duties of pilot in command while under the supervision of a qualified pilot in command" as long as the pilot performs the duties as part of an approved PIC training program. But the Memorandum cautions not to confuse or misapply these two regulations.

The Memorandum concludes by stating "if an SIC is not participating in an approved PIC training program in accordance with the terms of 61.51(e)(l)(iv), the time performing the duties of PIC under the supervision of a PIC must be logged as SIC time that may be relied upon for meeting the requirement in 61.159(a)(4)." Of course, if the SIC holds category, class, and type ratings appropriate to the aircraft that he or she is flying, and not just an SIC limited type rating, then this isnt' an issue because the airman may still log PIC time under FAR 61.51(e)(l)(i) provided that the airman is the sole manipulator of the controls the aircraft.

This Memorandum highlights the fact that two regulations may characterize a pilot's actions and flight time differently, depending upon the regulations and the circumstances to which they are applied. In this situation, using time to qualify for a certificate may be different than actually being able to log the time as PIC flight time. You need to review the regulations carefully to determine how, or whether, they apply to your particular situation.

Posted by Greg

April 13, 2012

FAA Amends Certain Airport Improvement Program Grant Assurances

The FAA today published a Notice of Modification of Airport Improvement Program Grant Assurances which amends certain Airport Improvement Program ("AIP") grant assurances to conform with the recently passed FAA Modernization and Reform Act of 2012. The amended grant assurances include the following:
  • Grant Assurance 5. Preserving Rights and Powers (relating to "through-the-fence" arrangements)

  • Grant Assurance 15. Veteran's Preference (granting preferences to Vietnam era veterans, Persian Gulf veterans, Afghanistan-Iraq war veterans, disabled veterans, and small business concerns owned and controlled by disabled veterans

  • Grant Assurance 25. Airport Revenues (relating to use of airport revenue for airport operations)

  • Grant Assurance 29. Airport Layout Plan (requiring plan and submission to DOT for review if alterations are made)

  • Grant Assurance 31. Disposal of Land (dictating disposal of unused land for fair market value and DOT involvement in determining use of funds received)

The modifications to the AIP grant assurances are effective today, April 13, 2012. However, the FAA will consider comments on the modifications to the grant assurances if they are received on or before May 14, 2012. If the FAA makes any changes to the modifications based upon the comments it receives, those changes will be adopted as of the date of a subsequent publication in the Federal Register.

Posted by Greg

April 11, 2012

What Do You Do If You Receive A Letter Of Investigation From The FAA?

If you receive a letter of investigation from an FAA inspector claiming that the FAA is investigating possible violations of the FARs, do you know (1) whether you should respond, and (2) if so, how you should respond? If you don't know the answers to these two questions, you may want to read my article on the subject: Responding To An FAA Letter Of Investigation.

Posted by Greg

April 05, 2012

Have Questions About The FAA's New Flightcrew Member Duty & Rest Rules? Ask the FAA!

As you may recall, on January 4, 2012 the FAA published a Final Rule that amends the existing flight, duty and rest regulations applicable to FAR Part 121 air carriers and their flightcrew members. Since that time, the FAA has received many questions regarding the provisions of the Final Rule despite the fact that compliance date is almost two years away on January 4, 2014. In response to all of the questions, the FAA has concluded "that responding to the questions and providing additional regulatory clarity will enable the stakeholders to better plan the changes that they will need to make in order to comply with the final rule." The FAA also wants to "ensure consistency of interpretation by answering the stakeholders' questions in a single document instead of multiple different interpretations."

As a result, the FAA issued a Notice of Procedures for Submitting Clarifying Questions to solicit questions about how the Final Rule works so that the FAA can "provide greater clarity to the stakeholders by answering those questions." However, the FAA "emphasizes that it is not reconsidering the provisions of the final rule or reopening the final rule to notice and comment." If you would like to submit a request to the FAA for clarification of the Final Rule, you must send your request to the FAA by June 4, 2012. You can submit requests one of two ways:
  1. Post your request on the Federal eRulemaking Portal ( Enter Docket Number FAA-2012-0358, and follow the online instructions for sending your request electronically; or

  2. Send a copy via email to the subject matter expert as noted below:

    • Technical Questions: Dale E. Roberts, Air Transportation Division, Flight Standards Service, Federal Aviation Administration; email; or

    • Legal Questions: Alex Zektser, Office of the Chief Counsel, Regulations Division, Federal Aviation Administration; email

My guess is that an e-mail request is going to get a quicker response. However, it is probably a good idea to send your request using both methods for the best chance of a response. After all, in the Notice the FAA states it will "attempt to reply to the clarifying questions that are submitted by June 4, 2012," which doesn't leave me feeling particularly confident about actually receiving a response. However, we can hope for the best.

Posted by Greg

April 04, 2012

NTSB Rejects Second Attempt To Obtain Medical Certificate By Airman With Disqualifying Conditions

A recent NTSB decision involved an airman's attempts to obtain a medical certificate in spite of the airman's disqualifying conditions. The case was based upon the FAA's denial of a second application for medical certificate submitted by the airman after the airman had lost his appeal of the FAA's denial of a previously submitted application. For a discussion and analysis of the case, and the difficulties faced by the airman, please read my article: NTSB Affirms Dismissal Of Airman's Second Attempt To Gain Medical Certificate In Spite Of History Of Disqualifying Conditions.

Posted by Greg

April 03, 2012

Airman Fails To Prove "Unknowing Ingestion" Defense To Positive Drug Test

The NTSB recently affirmed an administrative law judge's ("ALJ") determination that an airman failed to carry his burden of proving that his positive drug test resulted from "unknowing ingestion." In
Administrator v. Zumarraga the FAA issued an emergency order revoking all of the airman's certificates under FAR 120.33(b) based upon a positive result from a random drug test. The airman appealed the order arguing that the positive result, indicating cocaine metabolytes, was caused by his ingestion of mate de coca tea. At the hearing, the airman testified regarding his consumption of the tea and two medical experts appearing on the airman's behalf testified that the positive drug test result could have been caused by the tea. Unfortunately, the ALJ made a credibility determination adverse to the airman and affirmed the FAA's emergency revocation order.

The ALJ found that the airman failed to carry his burden of proving whether he ingested the mate de coca tea before the random drug test and whether the positive drug test resulted from his ingestion of that tea. Since the airman did not prove his "unknowing ingestion" affirmative defense, the ALJ then determined that he did not need to decide upon the airman's challenge to the FAA's strict liability interpretation of FAR 120.33(b) (the FAA argued that a positive test result was a violation of the regulation regardless of any affirmative defense an airman may assert). The airman then appealed the ALJ's decision to the full Board.

On appeal, the airman argued that the ALJ abused his discretion by entering a decision adverse to the airman absent substantial evidence. However, deferring to the ALJ's credibility determinations, the Board agreed that the airman failed to carry his burden of proving the affirmative defense of "unknowing ingestion." Although the airman claimed that the FAA did not rebut his evidence, the Board noted that the airman had the burden of proving his affirmative defense by a preponderance of the evidence and even absent a rebuttal case, the ALJ still found that he did not meet his burden. As a result, since the ALJ relied upon explicit facts and evidence in the record when he determined that the airman was not credible, the Board found that the ALJ's decision was not arbitrary or capricious.

The airman also argued that the FAA's strict liability policy on a positive drug test result improperly precludes the affirmative defense of "unknowing ingestion." However, the Board observed that the airman was actually allowed a full and fair opportunity to present his affirmative defense at the hearing. Since the airman had the chance and failed to prove his affirmative defense, the Board concluded that it did not need to determine "whether the FAA's strict liability interpretation of FAR 120.33(b) barred a defense of unknowing ingestion and thus, is arbitrary and capricious."

From a factual perspective, this case isn't surprising. Once an ALJ makes specific credibility determinations, it is very difficult to get the Board to reverse those findings. However, from a legal perspective this case is disappointing. It would have been nice to have a decision on whether the FAA's interpretation of FAR 120.33(b) as a "strict liability" regulation that cannot be rebutted by a factual affirmative defense is proper. I guess we'll have to wait for a case in which an airman carries his or her burden of proving the affirmative defense in order to force an ALJ, and potentially the Board, to decide whether the FAA's interpretation is correct.

Posted by Greg

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