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June 29, 2007

Understanding Aircraft Leases

If you own an aircraft, but are not fully utilizing the aircraft, how can you maximize your investment in the aircraft? What do you do if you cannot afford to own an aircraft, but you still want to fly? The solution for these two situations may be aircraft leasing. For more information on aircraft leasing, please read my latest article on the topic here.

Posted by Greg

June 25, 2007

NTSB Issues Safety Recommendations Regarding Evaluation Of Airmen With "Known" Or "Suspected" Substance Dependence

The NTSB today issued Safety Recommendations A-07-41 through A-07-43 regarding information it believes should be provided to the FAA or used by the FAA in connection with evaluating whether an airman has a substance dependence. The recommendations are in response to a number of aircraft accident investigations in which the Board discovered that the FAA had information to indicate, and was or should have been aware, that the airman had a history of substance dependence and the airman's substance dependence was relevant to the cause of the accident.

Recommendation A-07-41 advises the FAA to "[e]nsure that any airman undergoing aeromedical evaluation following a traffic conviction or administrative action that is required to be reported in the FAA Application for Airman Medical Certificate, form 8500-8, item 18v, is required to provide a complete copy of the relevant arrest report and/or court records, and those records are placed in the airman’s FAA medical file prior to clinical evaluation for certification." According to the Board, "a pilot convicted of even a single traffic offense involving alcohol or drugs is reasonably likely to have driven impaired on a large number of occasions and may be substance dependent." As a result, it feels that knowing the circumstances of such an offense would assist the FAA in evaluating substance dependence and deciding about an airman’s continued medical certification.

Recommedation A-07-42 suggests that the FAA "[p]rovide a copy of an airman’s complete medical record (including relevant arrest and court records) on file in the Aerospace Medical Certification Division to any individual performing a clinical evaluation of that airman related to the airman’s application for a medical certificate for the purpose of establishing, ruling out, or monitoring a history or diagnosis of substance dependence (including dependence on alcohol), as defined in 14 Code of Federal Regulations 67.107(a)(4)(ii), 67.207(a)(4)(ii), and 67.307(a)(4)(ii), prior to the completion of such an evaluation." The Board feels that since the third-party evaluators are not routinely provided a copy of an airman’s complete FAA medical record they don't receive the whole history and, thus, "airmen with potentially disqualifying medical conditions may present those conditions in the most favorable light and may not provide evaluators with critical objective information regarding their substance use or abuse."

Recommendation A-07-43 asks the FAA to "[r]equire that all airmen clinically diagnosed with substance dependence (including dependence on alcohol), as defined in 14 Code of Federal Regulations 67.107(a)(4)(ii), 67.207(a)(4)(ii), and 67.307(a)(4)(ii), who are medically certified by the FAA subsequent to such diagnosis, are followed under guidelines for special issuance of medical certificates for the period that they hold uch certificates." Because the Board considers substance dependence a lifelong disorder, it believes that airmen with such a history should be continuously re-evaluated to ensure that their flying does not create unacceptable risk.

Posted by Greg

June 21, 2007

NTSB Rejects Bias Defense In Airman's Appeal Of Suspension

In a recent NTSB decision, Administrator v. Nickl, the Board rejected an airman's defense that ALJ Geraghty was biased. The underlying case arose out of a rotorcraft external load operation during which the FAA alleged the airman was carrying passengers. The FAA issued an order alleging violation of FAR 91.13(a) (careless and reckless) and proposed to suspend the airman's commercial pilot certificate for 45 days. The airman appealed and a hearing was held with ALJ Geraghty presiding. After the hearing, at which witnesses for both the airman and for the FAA testified, ALJ Geraghty determined that the FAA's witnesses were more credible than those presented by the airmane and he affirmed the FAA's order.

On appeal to the Board, the airman argued that ALJ Geraghty was biased against the airman's counsel and biased against the airman as a result of ALJ Geraghty's prior employment with the FAA. The airman also submitted a motion in connection with his appeal to disqualify ALJ Geraghty pursuant to 49 C.F.R. § 821.35(c). The airman argued that ALJ Geraghty's bias was demostrated by the facts that the airman's counsel had not prevailed in other cases over which Judge Geraghty had presided and ALJ Geraghty had suspended a certificate belonging to one of the airman's counsel’s clients after the airman's counsel was too ill to attend a hearing. However, the Board rejected the bias argument because it was untimely. Given that ALJ Geraghty's supposed bias was based on an event that occurred numerous years ago, the Board held that the airman's counsel could have raised the bias issue earlier in the case.

With respect to ALJ Geraghty's prior employment with the FAA, the Board observed that "[w]e have previously acknowledged Judge Geraghty’s former employment with the FAA, and have determined that such a history does not preclude him from presiding over cases at the Safety Board, as Judge Geraghty’s former employment does not establish that he has prejudged any case." It then held ALJ Geraghty had not prejudged the case or presided over the hearing in a biased manner.

Although the defense was unsuccessful, I credit the attempt to obtain relief for a problem that many have perceived for quite a period of time. Unfortunately, as has most often been the case, the airman was unable to present sufficient evidence to support the defense. It is also disconcerting that the NTSB felt the bias defense should have been raised with ALJ Geraghty. Seems to me that would be adding fuel to the fire. Either way, airman appeals of FAA orders in Circuit III will likely remain difficult.

Posted by Greg

June 07, 2007

Another Pilot Prosecuted And Convicted For Medical Application Omissions

According to a Report from the FAA's Office of Inspector General, a Florida airman was recently convicted on charges of making false statements on his applications for his 2002 and 2004 airman's medical certificates. Apparently the private pilot indicated on his medical application that he was not taking any prescription drugs when, in fact, he was receiving workers compensation from the U.S. Postal Service and was taking prescription medications. As a result of the conviction, the airman was ordered to pay a $1,000 fine and serve three years probation, with the first six months on home confinement.

The airman's prosecution and conviction, in and of themselves, are not particularly newsworthy. Airmen have been, and likely will continue to be, prosecuted for making false statements on medical applications. From that perspective, this case should hopefully serve as a warning to airmen, and as a deterrent, to refrain from intentionally omitting requested information from their airmen medical applications.

However, this case is interesting from another perspective: the circumstances of the case make me wonder how the FAA discovered the airman's omission. Was this case similar to the Operation Safe Pilot investigation in which the FAA cross-checked its medical certification database with the Social Security Administration's disability database (in this case the FAA would have been working with the U.S. Postal Service)? Or did the FAA discover the airman's omission through some independent means?

If the former, then my prediction that investigations such as Operation Safe Pilot would expand has come true. Unfortunately, the OIG's report doesn't provide suffiient information to answer these questions. We will have to continue with the "wait and see" approach before we can determine if my prediction has actually come true.

Posted by Greg

June 05, 2007

NTSB Comments On FAA Practices On Service Of Orders

In a recent opinion, the NTSB repeated its suggestion that the FAA improve its practices and procedures relating to service of orders in enforcement matters. Administrator v. McKinney involved an airman's appeal of the NTSB's dismissal of his appeal of an FAA order of suspension. The ALJ dismissed the appeal as untimely and without good cause for the late filing. On appeal to the Board, the airman argued that his attorney's illness and associated surgery constituted good cause for the untimely appeal. Unfortunately, but quite predictably, the Board determined that the attorney's mistake in interpreting the Board’s rules regarding the service date of the FAA's order of suspension, and the resulting due date of the notice of appeal, did not constitute good cause for the late filing. Similarly, the Board found that the attorney was engaged and capable of filing a notice of appeal or requesting a timely extension despite his illness and surgery. Neither the result of this case nor the Board's analysis are a surprise.

However, what is interesting about this case is that the Board took the opportunity to repeat its previous comments regarding the FAA's practices relating to service of orders. The Board observed that the term "served" is understood to mean "mailed" by the attorneys who are familiar with FAA enforcement cases, but in other legal contexts this term is typically understood by attorneys to mean "received". It then noted that the confusion that often precipitates late appeals could be eliminated if the FAA's order reflected the actual date by which the appeal needed to be filed. The Board concluded "some confusion might result if the FAA incorrectly calculates the deadline, but that also serves to highlight the confusion of respondents in trying to do so and urges us to again ask the Administrator to be more sensitive to this matter and to, at the very least, define the service date in her enforcement orders."

Seems like a reasonable request to me.

Posted by Greg

June 01, 2007

FAA Issues Revised Guidance On Operational Control

On May 25, 2007 the FAA issued Notice 8900.4 Guidance for Operations Specifications A002 and A008: Operational Control. The Notice provides principal inspectors (PIs) with revised guidance to ensure standardized compliance with the operational control requirements of FAR Parts 119 and 135. The 37-page Notice addresses (1) Operational control; (2) Two tier operational control system; (3) Lease agreements; (4) Payments; (5) Insurance arrangements; (6) Holding out; (7) Operator responsibility to ensure a sustainable transfer; (8) Inspections, surveillance, and investigations; and (9) The use of “doing business as” names (DBAs).

The Notice states that as of March 15, 2007, approximately 20 percent of all certificate holders authorized to conduct operations under part 135 had not been issued amended OpSpecs A002 and A008. As a result, "the Flight Standards Service has determined June 30, 2007 to be the sunset date for pre-revision 100 paragraphs A002 and pre-revision 020 paragraphs A008. After June 30, 2007, these obsolete OpSpecs will be rescinded, and operators who have not been issued amendment paragraphs referenced in N8000.347 will no longer have an approved operational control system and, therefore, will no longer be authorized to conduct part 135 operations until the amended OpSpecs are issued."

As with the previous notice, certificate holders may appeal the revised OpSpecs pursuant to FAR 119.51. Certificate holders are encouraged to review the Notice, address questions or concerns with their respective PIs (or an aviation attorney) and confirm that they are in compliance with operational control requirements.

Posted by Greg

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