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September 27, 2006

Compliance With Deadlines In NTSB Appeals Is Critical

Airmen, and sometimes their counsel, continue to suffer from the National Transportation Board’s (NTSB’s) strict application of its timing requirements for filing appeals. Appeals are routinely dismissed when the airman does not file his or her appeal, notice of appeal or appeal brief when it is due according to the NTSB rules of practice. For a more detailed discussion of the timing requirements and several of the cases applying these rules, please read my latest article on the topic here.

Posted by Greg

September 15, 2006

FAA Will Not Disclose Information From The Voluntary Disclosure Reporting Program

The FAA today published a Notice of Order regarding its issuance of Order 8000.89 on August 17, 2006. The Order states that the FAA will not release safety and security information that is volunteered to it from regulated entities through the Voluntary Disclosure Reporting Program (VDRP) in accordance with Advisory Circular (AC) 00-58 . Under the the VDRP, the FAA foregoes civil penalty actions when a regulated entity (e.g. Part 135, Part 121 and other certificate holder) detects regulatory violations, promptly discloses the violations to the FAA, and takes prompt corrective action to ensure that the same or similar violations do not recur.

According to the FAA, "disclosure of VDRP information would inhibit the voluntary provision of that type of information because regulated entities have stated they are reluctant to voluntarily disclose instances of regulatory noncompliance if such submissions might be subject to public disclosure." Regulated entities are obviously concerned regarding potential public disclosure of the information, and, if disclosed, the potential for it to be used for other than the system safety enhancement purposes for which the VDRP was created.

The Order is effective as of August 17, 2006. For more information, you should review both Order 8000.89 and AC 00-58.

Posted by Greg

September 14, 2006

FAA Changes Policy On LOA Renewals

If you are a FAR Part 91 operator and you have been renewing your FAA letters of authorization (LOAs) permitting operations in special areas of operation (SAO) airspace (e.g. RVSM, NAT MNPS and RNP-10) you will no longer need to do so once you have obtained a LOA using LOA template B046 through the FAA automated operations safety system (OPSS). The OPSS has been issuing LOA's since February 6, 2006. This is a change from past practice where LOAs were valid for two years. If you obtained your LOA using OPSS, you will not need to renew the LOA as long as the information you provided in obtaining the LOA has not changed. If you obtained your LOA manually, pre OPSS, you will need to renew your LOA at least 30 days in advance of the expiration of your LOA using OPSS, but then you won't have to renew unless your information changes.

You can find further information regarding issuance of LOA's using OPSS in FAA Notice N8700.45 located on the FAA's website here.

Posted by Greg

September 12, 2006

History Of Psychosis And Bipolar Disorder Disqualify Airman From Receiving Medical Certificate

The NTSB recently issued a decision holding that an airman with a history of psychosis and bipolar disorder is disqualified from holding a medical certificate even if the airman is no longer suffering from the maladies at the time of the medical exam. In Petition of Sean Allen Lenser, the airman applied for a third-class medical certificate and disclosed a medical history that included an involuntary admission to a psychiatric facility, references to symptoms of psychosis, bipolar disorder and hallucinations and the airman's receipt of psychiatric medication. Based upon the disclosed medial history, the FAA denied the airman's application based upon FAR 67.307(a)2 and 3(clinical diagnosis of bipolar disorder and psychosis are disqualifying conditions), even though the airman was not suffering from the conditions at the time of the exam.

The airman appealed the denial to the NTSB and, after a hearing, Judge Mullins found that the airman had met his burden of proving that he was qualified for a medical certificate. Judge Mullins specifically found that the airman's medical history was not significant enough to disqualify him from receiving a third-class medical certificate. The FAA then appealed the decision to the full Board citing several pages in the voluminous airman medical file and two prior NTSB decisions in support of its argument that the airman was not qualified. In response, the airman argued that he had been misdiagnosed and he submitted a doctor's report to that effect. He also argued that he was qualified for a medical certificate based upon his current absence of symptoms.

The Board reversed Judge Mullins's decision. It held that the evidence of the airman's symptoms of psychosis and bipolar disorder, both of which are specifically disqualifying conditions, outweighed the influence of the doctor's report regarding the misdiagnosis. The Board noted that "a psychotic episode or psychosis is sufficient to deny a petitioner’s application for a medical certificate and found that the airman's medical records contained multiple reports referring to hallucinations, "which, under the regulations, would be sufficient to constitute a history of psychosis," and other symptoms of psychosis and bipolar disorder.

Although the airman argued that "no clinical evidence of psychosis or bipolar disorder exists because no one observed petitioner while he was hallucinating," the Board stated that "the regulations do not require observation of a petitioner while he or she experiences such symptoms; instead, the applicable regulation requires petitioners to have 'no established medical history or clinical diagnosis' of psychosis or bipolar disorder." As a result, the Board concluded that the airman had not met his burden of proving his qualification to hold a medical certificate.

This case is another example of how difficult it can be for an airman to meet his or her burden of proving qualification once the medical record contains some evidence of a disqualifying condition. When receiving any type of medical treatment, an airman should be aware of potentially disqualifying conditions and should proactively work with his or her physician to minimize any adverse impact a medical diagnosis or treatment may have on the airman's qualification for a medical certificate. If the airman's physician is not a pilot or does not have experience with airman medical certification, the airman will need to educate his or her physician to assist in the diagnosis/treatment process. Information is key, both for the airman and the physician.

Posted by Greg

September 06, 2006

Wisconsin Student Pilot Pleads Guilty To Submitting A False Statement

According to a post on the FAA's Office of Inspector General's website here, on August 31, 2006 a student pilot in Wisconsin plead guilty to charges of submitting a fraudulent statement on a FAA application for an airman medical and student pilot certificate in August 2001. Apparently the student pilot had an extensive criminal history which he conveniently omitted on his application. Although the student pilot has not yet been sentenced, he has surrendered his expired student pilot certificate and pilot logbook.

Unfortunately, this situation is becoming more common. I think most pilots do not realize the implications of failing to disclose or misrepresenting information that is requested on applications for airman or medical certificates. Most pilots probably assume that if they are caught, they will simply lose their certificate(s). However, as the above case shows, this is not all that will happen. If you omit or misrepresent information on an application, not only do you run the risk of losing your certificate(s), you also expose yourself to criminal liability for submitting a false statement under FAR's 61.59 or 67.403. Don't let this happen to you.

Posted by Greg

September 05, 2006

DOT Releases SIFL Rates For Last 6 Months Of 2006

The U.S. Department of Transportation has released the Standard Industry Fare Level (SIFL) rates for the six-month period from July 1, 2006, to December 31, 2006. 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, 2006, to December 31, 2006, are: 0500 miles $ 0.2071 ; 501-1,500 miles $ 0.1579; over 1,500 miles $ 0.1518; and Terminal Charge of $ 37.85.

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. Additionally, imputation of the SIFL rate applies regardless of whether the employer was allowed to deduct the cost of the flight.

Posted by Greg

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