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December 29, 2005

FAA Publishes Space Flight Notice Of Proposed Rulemaking

The FAA today published its Notice of Proposed Rulemaking for Human Space Flight Requirements for Crew and Space Flight Participants. The NPRM "proposes requirements for human space flight of crew and space flight participants as required by the Commercial Space Launch Amendments Act of 2004." If adopted, the NPRM would establish requirements for crew qualifications, training, and notification, as well as training and informed consent requirements for space flight participants. The FAA's intent is "to provide an acceptable level of safety to the general public, and to notify individuals on board of the risks associated with a launch or reentry."

The twenty-nine page NPRM contains a discussion of the background of private space flight programs, a summary of the proposed requirements and draft rules. Since it is an initial NPRM for an industry that is still in its infancy, I would expect an exhaustive discussion of the proposed rules and their likely impact on the private space flight industry. I would also hope that the eventual final rule would appropriately address the comments received in order to ensure safety without unnecessarily impeding the growth of private space flight.

Comments to the NPRM are due on or before February 27, 2006 and may be sent [identified by Docket Number FAA-2005-23449] via the usual methods. If you would like further information, you can contact the following: For technical information, contact Kenneth Wong, Deputy Manager, Licensing and Safety Division, Commercial Space Transportation, AST-200, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-8465; facsimile (202) 267-3686, e-mail ken.wong@faa.gov. For legal information, contact Laura Montgomery, Senior Attorney, Office of the Chief Counsel, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-3150; facsimile (202) 267-7971, e-mail laura.montgomery@faa.gov.

Posted by Greg

December 27, 2005

NTSB Accepts Improperly Addressed But Timely Filed Appeals

In Administrator v. Millenium Propellers, Inc., the NTSB has accepted both the FAA's and the certificate holder's timely filed appeal briefs even though the briefs were filed in the incorrect office. After the initial oral-decision of Judge Mullins ordering a 6-month suspension of Millenium's repair station certificate, both parties appealed. The FAA sent its appeal brief to Judge Mullins' office, as opposed to the office of administrative law judges in Washington, D.C. as required by NTSB Rule 821.7. Millenium then moved to dismiss the FAA's appeal based upon the improperly addressed filing. In response, the FAA pointed out that Millenium had also incorrectly addressed its appeal brief.

The Board began its analysis by reciting its strict adherance to its policy of dismissing untimely notices of appeal and appeal briefs absent good cause or a timely request to file one out of time. It then went on to state that the strict policy does not necessarily extend to timely filed but mis-addressed documents, especially in light of the fact that the Board has at least three different offices that could be the proper recipient of documents filed in an enforcement proceeding. The Board then held that "[f]iling of a document with the wrong one of these offices, although inconvenient for the staff of those offices, is not generally the sort of non-compliance with the Board’s regulatory procedures that calls for dismissal in a non-emergency proceeding." However, with respect to emergency proceedings, it went on to state that "strict adherence might be appropriate in a case where the expedited time limits for emergency proceedings were applicable."

It is important to note that this case involved appeal briefs that were both "timely" filed. The result would have been quite different if the appeal briefs were not timely filed. Under those circumstances, absent good cause or a previously granted request for more time, the appeals would have likely been dismissed consistent with the Board's strict policy. Finally, also keep in mind that the Board may not have accepted the mis-addressed appeals if the case had been brought as an emergency proceeding.

Posted by Greg

December 20, 2005

8th Circuit Court Of Appeals Affirms Dismissal Of Untimely Appeal

Consistent with existing precedent, the 8th Circuit Court of Appeals has dismissed a mechanic's appeal of an NTSB oral decision after the appeal brief was filed nine days late. In Cornish v. FAA, the Court reviewed the rule requiring that the administrative appeal from an oral initial decision, must be perfected by filing a brief within fifty days of that decision absent a showing of good cause. In this case, the mechanic's counsel apparently mistakenly believed that the appeal had to be filed within fifty days from the filing of the notice of appeal, as opposed to the date of the oral decision. The NTSB found that the error was without good cause and dismissed the appeal.

The Court of Appeals affirmed the NTSB's dismissal of the appeal. In response to the mechanic's argument that the dismissal was arbitrary and capricious because the Board had dismissed many appeals without explaining what constituted good cause, the Court stated that "the Board need not attempt to catalog what might be good cause in other cases when it consistently rules that mistakes by the appellant’s attorney in construing the agency’s procedural rules is not good cause." Although the mechanic also appeared to argue that the stale complaint rule should have somehow precluded dismissal, the Court noted that the stale complaint rule doesn't apply in cases where lack of qualification is alleged as was the situation in this case.

The Court's decision isn't much of a surprise. As this case and the many other cases decided upon similar facts show, the Board will dismiss appeals that are not filed when required unless good cause for the delay is shown. Unfortunately, neither the 8th Circuit nor the Board provided any helpful explanation as to what constitutes good cause. As a result, in order to avoid this uncharted territory Counsel representing certificate holders before the NTSB need to be familiar with the rules of procedure before the Board and to strictly comply with those rules.

Posted by Greg

December 16, 2005

TSA Waives "In-Month" Security Awareness Training Recurrency Requirement

In an Exemption issued December 13, 2005, the TSA has waived a requirement for flight school employees and independent CFIs to receive recurrent security training in the same month as when they received initial security awareness training. The exemption instead allows 18 months for flight school employees and independent CFI's to complete annual security awareness recurrency training. This is good news for many instructors who met the initial training requirements in October and November 2004 but have not yet completed the mandated recurrent training. The exemption will remain in effect until January 1, 2007. If you would like more information regarding the recurrent training requirement, check out the EAA's webpage on the subject here.

Posted by Greg

FAA Passes The Buck On Interpretation of the Flight Time, Rest and Duty Period Regulations

In a Notice published today, the FAA "has decided that it would be beneficial to follow the procedures announced in the May 8, 1980 Federal Register Notice (45 FR 30424) to request public comments on the requesters' questions, before the FAA issues its responses" to the multiple requests it receives for interpretaion of the flight time, rest and duty period regulations. The new procedure will be effective January 1, 2006.

Under this procedure, when the FAA receives requests for interpretation of the flight time, duty and rest period regulations, it will open a new public docket for each questions and request public comments/answers to the request. FAA intends to avoid repetitive type questions and can still issue an immediate interpretation without receiving pre-issuance comments. In such a situation, it will then solicit post-issuance comments. Also, the FAA reserves the right to modify or discontinue the use of these procedures at any time at the election of the Office of the Chief Counsel.

It seems to me that the FAA is just being lazy. Rather than responding directly to requesters' questions, the FAA is publishing them to the rest of the class hoping that someone else will provide the answers. Unfortunately, the answers that will presumably be posted by a public commenter will not be official nor will they have any binding or precedential effect as would an official interpretation issued by the Office of the Chief Counsel. Of course, this assumes that members of the public will actually check the public docket and take the time to submit comments. Given that the comments will not have the force of law, the FAA would probably be served just as well with a blog or internet forum. It certainly would be easier and more efficient.

Oh well, it will be interesting to see whether this works and, if so, for how long. If you would like more information regarding this procedure, you may contact Constance M. Subadan, Regulations Division, AGC-200, Office of the Chief Counsel, 800 Independence Avenue, SW., Washington, DC 20591; telephone 202-267-3073.

Posted by Greg

December 15, 2005

Independent Careless And Reckless Charge Against Airman Must Be Plead In FAA Complaint

In a recent case, Administrator v. W.H.M.J. Van Der Horst, the NTSB reversed an administrative law judge's (ALJ) suspension of an airman's commercial pilot certificate for allegedly performing a preflight inspection carelessly and recklessly. The FAA's complaint against the airman asserted, as is usually the case, that the airman acted carelessly and recklessly in connection with his alleged operation of a balloon carrying passengers when the balloon was in an unairworthy condition. In this situation the careless and reckless charge is typically referred to as a "residual" charge because it relies upon a finding of violation for the underlying charge.

After a hearing, the ALJ found that the FAA had failed to meet its burden of proving that the ballon was unairworthy and he dismissed that charge. However, the ALJ then held that the airman was careless in not inspecting the balloon more carefully before flight to ensure that its load tapes were not damaged after the balloon received some fire damage. The airman then appealed claiming that the FAA's complaint did not put him on notice that his preflight inspection of the burn damage was insufficient or performed in a careless and reckless manner.

The Board agreed with the airman and reversed the ALJ's decision. It held that "[a] fair reading of the Administrator’s complaint indicates that both the section 91.7(a) and the section 91.13(a) charges were premised upon a case theory that respondent’s balloon was damaged to such an extent that it was unairworthy" and that "[t]he complaint did not provide respondent with adequate notice that he must defend against an independent charge of carelessness based on an inadequate preflight."

The Board further noted that under these circumstances, "whether respondent was careless and whether he was on notice that he was being charged with being careless independent of the [operational violation cited in the complaint] are two separate questions" and, as a result, "it was prejudicial error for the law judge to uphold the section 91.13(a) violation on grounds not adequately described in the complaint."

Not only was this a good outcome for the airman, it was also fair and correct. Holding the FAA and the ALJ to the allegations specifically plead in the complaint makes them accountable and prevents a trial by ambush. Mind you, this rule also applies to the statements contained in an airman's answer to the allegations in an FAA complaint. However, this isn't necessarily a bad thing as long as the playing field between the parties is level, or at least slanted in favor of the FAA as little as possible.

Posted by Greg

December 14, 2005

NTSB Affirms Revocation Of Airman's Certificates Based Upon Felony Conviction

The NTSB recently affirmed an administrative law judge's decision revoking all of an airman's pilot and medical certificates, but not his mechanic certificate, for making intentional or fraudulent statements on an application for medical certificate. In Administrator v. Culliton, the FAA alleged that the airman failed to disclose a number of potentially disqualifying conditions on his application for medical certificate. The FAA's enforcement action followed a criminal action in which a jury convicted the airman of making a false statement on the same application, in violation of Title 18, Section 1001(a)(2) (a felony). The conviction was based upon the same answers on the medical application that were the subject of the FAA's enforcement action.

The ALJ applied the doctrine of res judicata and granted the FAA's motion for summary judgment based upon the felony conviction. Under res judicata, a final judgment on the merits of a prior action precludes the party common to the prior and a subsequent proceeding from relitigating issues that were or could have been raised in the prior action.

The NTSB agreed with the ALJ and the FAA holding that the requirements of res judicata were met and the findings in the criminal case foreclosed the airman from raising the issues in the enforcement action. It held that the issue in both cases "is exactly the same: whether respondent intentionally falsified his June 1997 application." It also noted that the burden of proof in the criminal case (beyond a reasonable doubt) was much greater than in the enforcment action (preponderance of the substantial, reliable and probative evidence). Finally, the NTSB reversed the ALJ's refusal to revoke the airman's mechanic certificate holding that FAR 67.403 authorizes the FAA to revoke all certificates for intentional falsification, as does the FAA's sanction policy.

I don't think this is the last time you will see an enforcement action relying upon res judicata to bind an airman based upon a felony conviction for making a false statement. This is especially true in light of the "Operation Safe Pilot" investigation in California discussed in my July 20, 2005 post and the likely expansion of the effort recommended by DOT Inspector General Kenneth Mead discussed in my August 1, 2005 post. It also seems clear that the FAA will seek, and likely be granted, revocation of all FAA issued certificates under similar circumstances.

Posted by Greg

December 13, 2005

Public Meetings On FAA Proposal To Codify DC ADIZ Announced

The FAA today published a Notice identifying two public meetings it will hold to solicit feedback and comments regarding its proposed codification of the Washington DC Air Defense Identification Zone (DC ADIZ). Specifically, the FAA would like responses, with supporting documentation, to the following questions: (1) What has been the effect of the airspace restrictions on aircraft owners that relocated outside the DC ADIZ? What has been the loss of income for those aircraft owners? (2) What has been the loss in time and revenue of pilots flying longer routes to avoid the DC ADIZ or curtailing their flying because of the DC ADIZ? and (3) What is the percentage of reduction in overall flying because of the existence of the DC ADIZ?

The public meetings will be held on the following dates: (1) January 12, 2006 from 1 p.m. until no later than 4 p.m., and from 6:30 p.m. until no later than 9 p.m. at the Sheraton Colombia Hotel, 10207 Wincopin Circle, Columbia, MD 21044; telephone 410-730-3900; http://www.starwoodhotels.com/sheraton/index.html. (The deadline to submit a request to make an oral statement at this meeting is January 5, 2006.); and (2) January 18, 2006 from 1 p.m. until no later than 4 p.m., and from 6:30 p.m. until no later than 9 p.m. at the Washington Dulles Airport Marriott (Salon A, B, and C), 45020 Aviation Drive, Dulles, VA 20166; telephone 703-471-9500; http://marriott.com/default.mi. (The deadline to submit a request to make an oral statement at this meeting is January 11, 2006.)

Requests to present a statement at the public meetings and questions regarding the logistics of the meetings should be directed to Noreen Hannigan, Office of Rulemaking (ARM-106), Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-7476, facsimile (202) 267- 5075. Additionally, the written comment period for the proposed rule will close on February 6, 2006.

If you are in the Washington DC area, these meetings present an opportunity to inform the FAA of the impact of the DC ADIZ on general aviation and the impropriety of codifying the DC ADIZ. They also represent a chance to let the FAA know that additional ADIZ's beyond the DC area are similarly unnecessary, improper and will be detrimental to general aviation. Regardless of whether you are able to attend either of the meetings, you should still submit written comments to the proposed rule.

Posted by Greg

FAA Publishes Notice Regarding Enforcement Of Aircraft Registration

The Federal Aviation Administration (FAA), along with the Transportation Security Administration (TSA), issued a Notice intended to ensure that only properly registered aircraft operate within the National Airspace System (NAS). According to the FAA, efforts undertaken pursuant to this Notice will revitalize and refocus their airspace monitoring capabilities to ensure that each aircraft operating within the NAS has met all statutory, regulatory, and certification requirements.

Beginning February 1, 2006, "operators of identified aircraft with questionable registrations and or no TSA required security measures/waivers will be: (1) Notified of the deficiency, (2) a pilot deviation will be filed on the operator, (3) operator may be denied access to the NAS. In the event the operator is not the owner, the operator and owner will be notified of the deficiency and both will be subject to any action deemed warranted by the agency in accordance with local, state and federal regulations."

If you would like further information you can contact Douglas Gould, Manager of Strategic Operations Security (AJR-22), by mail at Federal Aviation Administration, 800 Independence Ave., SW, Washington, D.C. 20591, or by telephone at 202-267-7683.

Posted by Greg

December 12, 2005

EPA Publishes Amended SPCC Proposed Rule

The EPA today published an Amendment to the Spill Prevention, Control, and Countermeasure Plan Requirements proposed rule. The proposed rule is a major revision to previous EPA proposals and removes many of the earlier requirements that would have resulted in a significant burden on aviation fuel providers.

Most notably, the propsed rule omits the requirement that aviation fuel providers have "sized secondary containment" (the previous mandate that fuel trucks be parked in special containment or "bermed" areas when not in service). However, general secondary containment requirements will still be required, but the proposed rule includes a number of more reasonable containment options.

The proposed rule extends the compliance date for SPCC plans from August 2006 to October 2007. All facilities subject to SPCC regulations must have an approved plan implemented by then. Comments to the proposed rule are due no later than February 10, 2006. For more information contact either Vanessa E. Rodriguez at 202-564-7913 rodriguez.vanessa@epa.gov), or Mark W. Howard at 202-564-1964 howard.markw@epa.gov), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC, 20460-0002, Mail Code 5104A.

Posted by Greg

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