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October 04, 2016

As Long As You Hold An Airman Certificate You Must Report Motor Vehicle Actions To The FAA

If you hold an airman certificate you know, or at least you should know, that you are subject to the reporting requirements of 14 C.F.R. §61.15. That is, §61.15(e) requires an airman to report a motor vehicle action ("MVA") to the FAA Civil Aviation Security Division within 60 days. The written report must include: “(1) The person's name, address, date of birth, and airman certificate number; (2) The type of violation that resulted in the conviction or the administrative action; (3) The date of the conviction or administrative action; (4) The State that holds the record of conviction or administrative action; and (5) A statement of whether the motor vehicle action resulted from the same incident or arose out of the same factual circumstances related to a previously reported motor vehicle action.”

What is an MVA? According to the regulation an MVA is (1) a violation of any Federal or State statute relating to the operation of a motor vehicle while intoxicated by alcohol or a drug, while impaired by alcohol or a drug, or while under the influence of alcohol or a drug; (2) the cancellation, suspension, or revocation of a license to operate a motor vehicle, for a cause related to the operation of a motor vehicle while intoxicated by alcohol or a drug, while impaired by alcohol or a drug, or while under the influence of alcohol or a drug; or (3) the denial of an application for a license to operate a motor vehicle for a cause related to the operation of a motor vehicle while intoxicated by alcohol or a drug, while impaired by alcohol or a drug, or while under the influence of alcohol or a drug.

It is important to realize that this definition includes more than just being arrested for or convicted of a DWI, OWI etc. A civil action that often accompanies a DWI arrest in most states and that results in suspension of the driver's license is also considered an MVA. Thus, an arrest for DWI could create the obligation for an airman to provide multiple reports to the FAA depending upon how the civil and criminal cases proceed. And if an airman fails to report an MVA, §61.15(f) states that he or she could be subject to (1) Denial of an application for any certificate or rating for a period of up to 1 year after the date of the arrest; or (2) Suspension or revocation of any certificate or rating.

But what happens if you hold an airman certificate but you no longer hold a medical certificate, or you have "retired" from flying? Are you still subject to this reporting requirement? The short answer is "yes", as a recent NTSB decision explains. In Administrator v. Street, the airman was an experienced airline pilot who failed to report four MVAs arising from two DWIs. When the FAA found out, it issued an order suspending the airman's ATP certificate for 240 days. On appeal, the administrative law judge ("ALJ") agreed that the airman had violated sections 61.15(d) and (e) but determined that the sanction should only be a thirty day suspension.

Not surprisingly, the FAA was unhappy with that decision and appealed to the full Board. The FAA argued that the 240 days should stick and, of course, the airman argued that the ALJ's decision should stand. Specifically, the airman argued that at the time of the violations he did not have a medical certificate and was not actively flying, which should serve as mitigating factors in support of the lower sanction. However, the Board rejected that argument stating the reporting requirements of §61.15(e) are applicable to an airman who temporarily “retires” from flying. The Board explained that "[w]hile respondent testified that he did not plan to return to flying, his obligation to comply with the FARs continued regardless of whether he was actively flying at the time the MVAs occurred. Sections 61.15(d) and (e) are exclusively concerned with conduct outside the scope of an airman’s certificate. It is immaterial whether respondent was actively flying or had a medical certificate at the time the MVAs occurred because his status as an ATP certificate holder rendered the requirements of §§ 61.15(d) and (e) applicable to him."

So, the moral of the story is: If you hold an airman certificate, you need to be familiar with, and comply with, the requirements of §61.15. Until you no longer hold your airman certificate (whether the certificate has been surrendered, suspended or revoked) you will need to report any MVA to the FAA.

Posted by Greg

August 07, 2016

Update On The FAA's New Compliance Philosophy

This year at EAA's Airventure I was fortunate enough to be able to attend a continuing legal education (“CLE”) program generously presented by EAA’s Legal Advisory Council. The program hosted a number of FAA personnel to discuss the FAA’s new compliance philosophy which was announced in June, 2015 and actually went into effect October 1, 2015. The FAA representatives included John Duncan, Director of Flight Standards, James Tagmeier, Great Lakes Regional Counsel and Manager of the Midwest Enforcement Team, Jeffrey Klang, Senior Counsel – International, and Mark Bury, Deputy Chief Counsel – Enforcement & Regulations.

When it was issued, this new philosophy appeared to be a positive shift in the FAA's national enforcement policy. But the rubber really hits the runway with the inspectors at the FSDO level. So, at the time my concern was whether this philosophy would actually trickle down to the FAA inspectors and whether this would philosophy would apply to all divisions within the FAA.

Which brings us to the CLE program nearly one year later. According to John Duncan, the new compliance philosophy has been implemented agency-wide. That is, all divisions within the FAA are required to apply the new compliance philosophy. Although he did note that some divisions, such as the drug abatement and the security divisions, may not be implementing the philosophy as aggressively as others such as flight standards. While this is good to know, from my perspective, it does not appear to me that those divisions of the FAA have truly embraced or implemented the new philosophy. But it is good to know that they are supposed to be applying the new philosophy.

Both John Duncan and James Tagmeier emphasized that the philosophy is being applied to those certificate holders who are both “willing and able” to comply with the goals of returning the certificate holder to compliance and ensuring future compliance. In the event that the certificate holder is either unwilling or unable to be “rehabilitated”, then the philosophy dictates that the certificate holder be removed from the national air space (“NAS”) (e.g. via certificate suspension or revocation).

What does this mean for FAA inspectors? John Duncan indicated that in all cases the FAA’s priorities are to (1) deal with the risk posed or created by the certificate holder and, only then, (2) determine if a violation has occurred. According to John, inspectors who are initially investigating a situation will assume that a compliance action will be used. Legal enforcement action will only be considered after the investigation reveals that a compliance action is not appropriate.

What does this mean for certificate holders? Generally it means that the risk of a legal enforcement action has been significantly reduced. According to John Duncan, as of April 2016 the FAA had process approximately 2,200 compliance actions. In the absence of the new philosophy, I suspect a significant number of those cases would have resulted in certificate actions.

But, here is the catch: In order to take advantage of this new philosophy, the FAA inspectors require that a certificate holder talk to them to discuss the “how” and “why” the risk was created as well as options for making sure it doesn’t happen again. Without that information, it makes it difficult for the inspectors to determine whether the situation can be resolved with a compliance action.

From my perspective as an aviation attorney who defends certificate holders against FAA legal enforcement action, this approach raises concerns that the certificate holder will provide the inspector with information that could later be used against the certificate holder in an enforcement action. In the past, my typical advice to certificate holders was to either not speak with the inspector or to at least not volunteer any information that could later come back to bite the certificate holder. Under the new philosophy, that isn’t necessarily the best advice.

Now a certificate holder must carefully analyze the situation to try and determine whether the situation will qualify for a compliance action before the certificate holder starts to volunteer information to the inspector. While resolution of the case through a compliance action is definitely preferable, the certificate holder should try and avoid disclosing information that could preclude a compliance action or that would put the certificate holder in a more difficult position if the FAA pursues legal enforcement action. Discussing the matter with a knowledgeable aviation attorney before you speak with the inspector can certainly assist in making this decision.

The FAA’s new compliance philosophy is definitely a step in the right direction. It is benefitting both certificate holders and the safety of the NAS. As with any change, it does raise some concerns and issues that will yet need to be worked out. However, after nearly a year the new policy seems to be working.

Posted by Greg

August 03, 2016

Waiver of Emergency Procedures in an NTSB Appeal Will Not Cure a Missed Deadline

Since the FAA began implementing its new compliance philosophy last year, fewer case are being appealed to the NTSB. However, it appears that the cases that are being appealed the most are emergency orders of either suspension or revocation. As you may recall from past articles, when a certificate holder appeals an emergency order to the NTSB, emergency procedures apply to the case which require that a hearing be held within 30 days after the appeal is filed. Other deadlines are also much shorter under the emergency procedures than they are under the procedures for a non-emergency appeal. The purpose for the accelerated hearing and deadlines is to ensure that a certificate holder whose certificate has been suspended or revoked on an emergency basis (i.e. the order is effective immediately) receives a hearing and decision as soon as possible to minimize the impact of the suspension or revocation if the NTSB administrative law judge ("ALJ") ultimately reverses the FAA's order.

But in some situations, this expedited timeline can also be a problem for a certificate holder who may need more time to properly prepare for a hearing. So, it is also possible to waive the emergency procedures in an appeal of an emergency order. Whether the emergency procedures should be waived is a decision that will depend upon the circumstances of each case. But the certificate holder must be sure to comply with the deadlines applicable to the case, whether under the emergency or non-emergency procedures. Failure to comply can result in harsh consequences. If a certificate holder is going to waive the emergency procedures, the waiver should occur before any applicable deadline has passed. A recent decision by the NTSB illustrates the unfortunate consequences of an untimely waiver.

In Administrator v. Jimenez; the airman appealed an emergency order revoking his commercial pilot certificate. The airman appealed the order to the NTSB, but failed to file his answer to the FAA's complaint within the five days required by the Board's emergency procedures. As a result, the FAA subsequently filed a motion to deem the facts admitted and requesting summary judgment. One day after the FAA filed its motion, the airman waived the emergency procedures and filed his answer which would have still been timely under the proceedures applicable to a non-emergency case. In the absence of good cause for the late filing, the ALJ granted the FAA's motion based upon the airman's failure to timely file his answer. The airman then appealed the ALJ's decision to the full Board.

On appeal, the airman argued that his answer was timely under the non-emergency procedures that were applicable to the case once the airman had waived the emergency procedures. However, the Board rejected the airman's argument. While the Board observed that Section 821.52(d) permits an airman to waive the the accelerated time limits applicable to emergency cases, it then referred to the rule's limitation that “such a waiver shall not serve to lengthen any period of time for doing an act prescribed by this subpart which expired before the date on which the waiver was made.” Thus, the Board held that the express language of the rule precluded the airman's argument that the 20-day deadline, which would apply in a non-emergency case, was applicable because the airman did not waive the the emergency procedures until after the time to file his answer expired.

The rules for emergency and non-emergency cases can sometimes be confusing. And, unfortunately, the consequences of failing to comply with the rules can be significant. This case is yet another example of why it makes sense to have an experienced aviation attorney assist you with appeal of an FAA order of suspension or revocation. If you find yourself in this situation, make sure you get the help you need.

Posted by Greg

July 12, 2016

What Can You Do Inside Your Aircraft Hangar?

If you own or lease an aircraft hangar on a private airport, that airport may have some restrictions or limitations on what you can do inside your hangar. Other private airports do not have any restrictions on hangar use. It just depends upon the airport.

However, if you own or lease an aircraft hangar on a public airport that receives federal grants under the Airport Improvement Program ("AIP"), then you are definitely subject to restrictions upon how you can use your hangar. The FAA recently clarified its guidance on what an aircraft hangar owner or lessee on an AIP airport can and cannot do within his or her hangar. You can read more about these limitations in my latest article on the subject: What Are You Allowed To Do Inside Your Aircraft Hangar At An AIP Airport?.

Posted by Greg

July 07, 2016

What's the Difference Between "Wet" and "Dry" Aircraft Leases?

Have you ever wondered what someone means when they refer to a "wet" versus a "dry" aircraft lease? Many people think it has something to do with whether the aircraft is being leased with or without fuel. However, fuel actually has nothing to do with the distinction.

For an explanation of the difference between "wet" and "dry" aircraft leases, and why it matters, please read my latest article on the subject: The Difference Between "Wet" and "Dry" Aircraft Leases.

Posted by Greg

March 03, 2016

Drone Operators Are Subject To FAA Enforcement

If you operate an unmanned aircraft system ("UAS") or drone, you should be aware that your operation of the drone is subject to FAA enforcement. What does that mean? Well, for a discussion of FAA enforcement as it applies to UAS or drone operations, please read my latest article on the subject: Drone Operators Beware: Drone Operations Are Subject To FAA Enforcement.

Posted by Greg

December 23, 2015

D.C. Circuit Grounds Flytenow & Airpooler Private Pilot Flight Sharing Business Model

The D.C. Circuit Court of Appeals has rejected Flytenow's petition to overturn the FAA's interpretation that private pilots are not permitted to use online flight sharing portals/websites connecting them with potential passengers to share in the expenses of their flights. For a discussion of the decision and its impact on the online flight sharing business model please read my article on the topic: D.C. Circuit Court of Appeals Grounds Flytenow & AirPooler Private Pilot Flight-Sharing Concept.

Posted by Greg

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