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January 30, 2007

FAA To Propose Change To Age 60 Rule

In a Press Release issued today, the FAA announced that it will issue a formal Notice of Proposed Rulemaking (NPRM) later this year proposing to raise the mandatory retirement age for U.S. commercial pilots from 60 to 65. The proposal would adopt the new International Civil Aviation Organization (ICAO) standard that allows one pilot to be up to age 65 provided the other pilot is under age 60. That standard was adopted in November, 2006. After receiving and considering public comments, the FAA will then publish a final rule.

This announcement follows the Age 60 Aviation Rulemaking Committee's (ARC) publication of a report in which it did not reach a consensus recommendation regarding the proposed change. However, it did provide insight and analysis that the FAA anticipates will be helpful as it develops a final rule. You can review the November 29, 2006 Age 60 ARC report, appendices, and public comments online by searching here using docket number 26139.

Posted by Greg

OpSpec A007 Amended To Require Disclosure Of E-Mail Address

The FAA has issued Notice 8000.341 amending OpSpec A007 for FAR Parts 121, 125 (including operators issued a Letter of Deviation Authority (LODA 125)), 133, 137, 135; and 145 certificate holders and fractional ownership program managers operating under Part 91 subpart K. The Notice requires the disclosure in OpSpec A007 of a specific responsible person, by name, as recipient for SAFOs and/or InFOs, together with a working email address and a working telephone number for that responsible person. The FAA intends to use the e-mail addresses provided in OpSpec A007 to distribute its publications to affected certificate holders. If you would like further information, you should review the Notice or contact your principal inspector to discuss.

Posted by Greg

FAA Extends Inspection Authorization Renewal Period To Two Years

In a Direct Final Rule published today, the FAA has extended the Inspection Authorization ("IA") renewal period under FARs 65.92 and 65.93 from one year to two years. The FAA believes the final rule will reduce the renewal administrative costs for both the FAA and mechanics holding the IA by 50%. The final rule does not change the requirements of the prior rule for annual activity (work performed, training, or oral examination).

The final rule is effective March 1, 2007. Comments to the final rule must be submitted no later than March 1, 2007 for inclusion in the final rule's docket. If you would like more information on the final rule you may contact Kim Barnette, AFS-350, 800 Independence Ave, SW., Washington, DC 20591. Telephone: (202) 493-4922; e-mail: kim.barnette@faa.gov; Fax: (202) 267-5115.

Posted by Greg

January 29, 2007

Voluntary Disclosure Reporting Program

If you hold a Part 135 air carrier certificate and you discover that you operated one of your aircraft beyond the mandatory compliance date without completing a required inspection, what do you do? Or, what happens if you hold a Part 145 repair station certificate and you discover that several of your spare parts were either mislabeled or improperly stored? In either situation, a violation of the FARs has likely occurred. But do you have to lose sleep at night wondering if the FAA will discover the violation during the next inspection? Is a civil penalty, suspension or revocation in your future? Not necessarily. If you qualify, the Voluntary Disclosure Reporting Program (“VDRP”) may allow you to disclose the violation to the FAA and merely receive a letter of correction in your file.

For more information on the VDRP, please read my latest article on the topic here.

Posted by Greg

January 26, 2007

DOT Issues Advance Notice of Proposed Rulemaking Regarding Information To Be Given By Charter Operators To Customers

The DOT today issued an advance notice of proposed rulemaking ("ANPRM") titled Consumer Information Regarding On-Demand Air Taxi Operations. The ANPRM seeks comment NTSB recommendations that Part 135 on-demand air taxi operators be required to advise their customers at the time they contract for a flight of: "(1) The name of the company with operational control of the flight; (2) any 'doing business as' names contained in such company's Operations Specifications; (3) the name of the aircraft owner; and (4) the name of any broker involved in arranging the flight" and to update the information thereafter if the information changes.

Although this ANPRM does not seek to regulate the operational control to be exercised by charter operators, it specifically addresses the communication that the NTSB, and apparently the DOT, feels a charter operator should have with a charter customer to disclose who is exercising operational control over a given flight. The DOT believes, and has issued regulations in the past to enforce its belief, that "adequate information is essential in order that consumers be afforded the opportunity to make informed decisions about their flight choices".

Comments to the ANPRM are due no later than March 27, 2007. The DOT would specifically like comment on the following questions:

1. How might customers and passengers benefit from the information covered by the NTSB recommendation in making their air taxi service purchase decisions?

2. Should any notice requirement, if adopted, also apply to air charter brokers and other ticket agents who arrange for air transportation for customers using the services of on-demand air taxis?

3. To what extent is each of the notices recommended by the Safety Board already provided in the normal course of business to persons who travel using an on-demand air taxi? If such notice is not currently routinely provided, what, if any, practical difficulties would the on-demand air taxi industry likely face in providing the notice?

4. What costs, if any, would the recommended changes impose on the industry? Would there be any paperwork burdens? Would there be a significant economic impact on a substantial number of small entities?

5. How might the disclosure of the names of the owners of the aircraft involved in the arranged flights be useful to customers and passengers? What, if any, practical or privacy concerns would be raised by such a requirement?

6. At what point in time must any notice, if required, first be provided to be effective, e.g., in printed and website advertisements, to potential customers when they are seeking information, anytime prior to entering into a contract, upon signing the contract, or anytime prior to boarding the aircraft?

7. What form should any notice requirement, if adopted, take? That is, is verbal notice sufficient or must the notice be in writing?

8. What are the practical problems in requiring notice to individual passengers of an on-demand air taxi? Would any notice requirement be sufficient if provided to the person contracting for the flight, e.g., the customer's broker/agent or a corporation's travel department or an executive's assistant who arranged the flight?

The DOT will then evaluate the comments it receives to determine what, if any, changes to its economic rules applicable to on-demand air taxi operators should be made. I encourage all charter operators and brokers to review the ANPRM and submit comments specifically responding to the DOT's requests. By providing the DOT with this information, if the DOT determines that additional regulation is necessary, hopefully it will be practical and accurately reflect real-world business practices without creating an undue burden on charter operators.

Posted by Greg

January 22, 2007

Intentional Falsification On Application For Medical Certificate Justifies Revocation Of All Certificates

A recent case has affirmed the NTSB's longstanding position that an airman's intentional falsification of an application for a medical certificate justifies revocation of all of an airman's certificates. In Administrator v. Croston, the airman completed a application for a first class medical certificate and, in response to Question 18(v)(whether the airman “ever in [his] life [he] had any … history of any conviction(s) or administrative action(s) involving an offense(s) which resulted in the denial, suspension, cancellation or revocation of driving privileges[.]”) the airman answered no. The airman was subsequently issued a medical certificate.

However, when the FAA obtained the airman's driving record from the National Driver Registry ("NDR"), the FAA learned that the airman had, in fact, had his driver's license suspended on five separate occasions for alcohol related driving offenses. As you might imagine, the FAA was not pleased. The FAA issued an emergency revocation order revoking both the airman's first class medical certificate, as well as his private pilot glider certificate, based upon its allegation that the airman had violated FAR 67.403(a)1(making a fraudulent or intentionally false statement).

The airman then appealed the emergency revocation. At the hearing, the airman argued that he answered the question as he did because he misunderstood the question. He also argued that he didn't intend to deceive the FAA because he knew the FAA would obtain the NDR record. Judge Pope rejected the airman's arguments. He found that the airman's explanation was not credible because the question was "clear and ambiguous". He then affirmed the emergency revocation of the airman's certificates.

On appeal to the NTSB, the airman argued that Judge Pope had misunderstood his explanation for his incorrect answer. However, the Board rejected the airman's argument and deferred to Judge Pope's credibility and factual determinations. It then affirmed its longstanding precedent that "revocation of airman and medical certificates is the appropriate sanction for intentional falsification of a medical certificate application because such falsification demonstrates that an airman lacks the necessary qualifications to properly exercise the privileges of these FAA certificates".

This case demonstrates the danger of answering a question on an application for medical certificate incorrectly, whether due to a misunderstanding or intentionally. An airman with possible disqualifying conditions would do well to review, and understand, the application well before he or she arrives at the aviation medical examiner's office. That way, the airman can obtain appropriate counsel from an aviation attorney to make sure he or she does not end up in the position of the airman in this case.

Posted by Greg

January 10, 2007

Air Carriers Now Need Approval From Washington For Addition Of Turbine Aircraft To Certificate

According to recently issued Notice 8000.343, Part 135 operators seeking to add turbine aircraft to their certificates or to add any aircraft (regardless of type of powerplant) for use in air ambulance service will now need the approval of the FAA's Air Transportation Division (AFS-200) in Washington, D.C. Turbine-powered airplanes include turbopropeller, turbojet, and turbofan airplanes. The discussion in the Notice states that "[m]any air transportation operators may have franchised, leased, or otherwise rented their authority to conduct operations to noncertificated entities. Companies engaging in these practices compromise their ability to maintain the operational control required by regulations." Thus, it appears that the Notice is continuing fallout from the FAA's increased scrutiny over operators' exercise of "operational control" over their flights.

Under the Notice, before a principal inspector ("PI") may add "any affected airplanes to the OpSpecs of any operator, or applicant seeking authorization to conduct turbine powered airplane or airplane (regardless of type of powerplant) air ambulance operations", the PI must notify AFS-200 with the air operator or applicant’s name (as applicable) and the airplane registration number and airplane serial number and then the PI must receive AFS-200’s concurrence before he or she may add the airplane to the OpSpecs. However, "[n]ewly manufactured airplanes delivered directly to the certificate holder are exempted from the notification requirements of this notice and may be added immediately to the certificate holder’s operations specification (OpSpec) without approval from AFS-200." Prior to the Notice, approval of the addition of an aircraft to an air carrier's certificate came from either the local FSDO or, if needed, from the regional level.

This Notice may be good news for some operators and bad news for others. If the operator's PI has been hesitant or slow to add aircraft to the operator's certificate in the past, it is possible that the process specified in the Notice may speed up the approval. However, for operators with PIs who are cooperative and efficient, having to go through the extra step of obtaining AFS-200 concurrence may actually increase the time needed to add an aircraft to the air carrier's certificate. After all, additional bureaucracy rarely seems to add efficiency or expedite a process.

The Notice was effective December 18, 2006 and is being distributed to the division level in the Flight Standards Service in Washington headquarters, including the Regulatory Standards Division at the Mike Monroney Aeronautical Center; to the branch level in the regional Flight Standards divisions; and to all Flight Standards District Offices. It will ultimately be incorporated into the Flight Standards Information Management System before its December 18, 2007 cancellation date. If you have questions regarding the Notice you should contact the Air Transportation Division, AFS-200, at (202) 267-8166.

Posted by Greg

January 09, 2007

NTSB Affirms Dismissal of Intentional Falsification Charge Against Airman

In Administrator v. Roarty, the FAA issued an emergency revocation order charging the airman with violations of FARs 67.413(a)(failure to provide information) and 67.403(a)(1)(making fraudulent or intentional false statement) arising from the airman's failure to disclose the revocation of his medical certificate on a later application for a medical certificate (the airman's medical certificate was previously revoked for failing to disclose a DUI conviction on two prior medical applications). The airman appealed the order to the NTSB.

At the hearing, Judge Mullins granted the FAA's motion for summary judgment on the FAR 67.413(a) violation and suspended the airman's medical certificate pending the FAA's receipt from the airman of the omitted information and the FAA's determination that the airman was qualified to hold a medical certificate. With respect to the intentional falsification claim, the airman claimed that "he did not purposely answer Question 13 incorrectly in filling out his 2003 medical application, and claimed that there was no reason for him to falsify his application". The FAA argued that it was not credible for the airman not to have remembered the revocation and, thus, his answer on the application was intentionally false.

Judge Mullins held that the airman did not intentionally falsify the application but, instead, acted negligently and apparently made a mistake. He also observed that the airman's prior revocation was contained in the FAA's records. The FAA appealed the Judge's determination to the full Board arguing that the airman's statement was negligent rather than intentionally false.

On appeal, the Board reluctantly affirmed the Judge's credibility determination that the airman had simply made a mistake and answered the question incorrectly. The Board observed that "we are constrained to conclude that we have no basis to characterize the law judge’s credibility determination in favor of respondent arbitrary or capricious." The Board blamed the FAA for leaving it in a position where it had to affirm a finding with which it clearly disagreed.

The Board felt the FAA did not cross-examine the airman aggressively enough and did not vigorously pursue evidence of a possible motive for the airman to intentionally falsify his application. It also observed that if the airman had made similar arguments in connection with his previous enforcement action, that allegation would be relevant to the airman's credibility. However, the FAA did not present evidence of that allegation at the hearing and it thus remained unsubstantiated in the record.

All in all, it is obvious that the Board felt the airman had intentionally falsified his medical application. But because the FAA did not pursue the case as the Board felt it should, the record did not contain the evidence the Board needed to be able to reverse Judge Mullins' dismissal of the intentional falsification charge. The airman lucked out. Not only did he have a sympathetic judge, but he also had an FAA attorney that probably believed the case was a "slam-dunk" for revocation and thus was not as thorough or aggressive as hindsight ultimately dictated was necessary. And the Board followed the law and did its job, despite its disagreement with Judge Mullins' decision.

Unfortunately, the NTSB opinion never includes the entire story. Although this is a good result for the airman, don't forget that the airman still needs to convince the FAA that he is qualified to hold a medical certificate. In this case, the airman's story is definitely not over.

Posted by Greg

January 05, 2007

FAA Issues NPRM Requiring Conversion To Plastic Airmen Certificates

The FAA today issued a Notice of Proposed Rulemaking ("NPRM") that proposes changes to the airmen certification and aircraft registration rules. Under the NPRM, two years after a final rule becomes effective, an airman would no longer be able to exercise piloting privileges using a paper pilot certificate. Five years after a final rule becomes effective, certain other paper airmen certificates, such as those of flight engineers, mechanics and other flight crewmembers, would also become ineffective. In order to exercise the privileges after those times, a certificate holder would have to have upgraded to the counterfeit-resistant, plastic certificate that the FAA is currently issuing for new or replacement airmen certificates. This rule would not affect student pilot certificates which are currently issued in paper format in connection with an airman's initial third-class medical examination.

In addition, the NPRM proposes that anyone transferring ownership of a U.S.-registered aircraft would have to notify the FAA Aircraft Registry within five days of the closing of the transaction. Applicants for aircraft registration would also have to include their printed or typed name with their signature on the Form 8050-1, Aircraft Registration Application.

According to the FAA, the "changes are responsive to concerns raised in the FAA Drug Enforcement Assistance Act" and are intended "to upgrade the quality of data and documents to assist Federal, State, and local agencies to enforce the Nation's drug laws." The FAA believes the rule changes will allow law enforcement agencies to more readily establish the true identity of those who hold legitimate airmen certificates, as opposed to counterfeit certificates, and to identify the actual owner of an aircraft, particularly when ownership of the aircraft has recently been transferred.

Comments to the NPRM are due no later than March 6, 2007. For more information you should review the NPRM here or you may contact Mark D. Lash, Civil Aviation Registry, Mike Monroney Aeronautical Center, 6500 South MacArthur Boulevard, Oklahoma City, OK 73169, telephone (405) 954-4331.

Posted by Greg

January 03, 2007

FAA Issues Final Operational Control Notice

On December 28, 2006, the FAA issued the long awaited Notice 8000.347, Operational Control: Revised Operations Specifications A008 and A002. The Notice sets forth the criteria and guidance that the FAA will be using to determine whether Part 135 operators are exercising operational control as required by the regulations. The Notice has received mixed reviews. Some operators believe that the Notice simply repeats the existing regulatory requirements for exercising operational control. Others believe the Notice presents a more restrictive view of operational control. Regardless of which view operators hold, all operators should review the Notice and confirm that their operations are in compliance with the Notice's guidance.

Principal Operations Inspectors ("POI's") are supposed to distribute the Notice to their respective Part 135 operators within 10 days and operators will then have 10 days within which to respond to the Notice with any written information, views, and arguments regarding the amended OpSpecs. However, given the process the FAA used to arrive at this final version of the Notice (public meetings, comments etc.) it is questionable whether any further comment submitted by an operator will result in additional revisions except as it may relate to a very specific issue/situation faced by the individual operator.

Needless to say, this is, and has been, a "hot button" with the FAA since the Challenger accident at KTEB. The FAA has increased its review and surveillance of Part 135 operators and has aggressively pursued enforcement actions against operators it believes are not exercising the required operational control. All Part 135 operators would be wise to familiarize themselves with the Notice and to discuss the Notice with their POI's to ensure that they understand the Notice and that their operations are consistent with its requirements.

Posted by Greg

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