Greg Reigel's Aero Legal Services

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September 26, 2007

ATC Instructions Not Subject To Negotiation

In a recently decided case, Administrator v. McCarthney, the NTSB has affirmed its long-standing holding that ATC instructions are not subject to negotiation . The case arose out a flight in which the airman was operating a Cessna 500 at flight level 350. ATC requested that the airman descend to flight level 310, but he refused. ATC then requested that the airman turn to a 045 degree heading and, again, the airman refused to comply. After ATC advised the airman that he needed to either turn or to descend to avoid traffic, the airman then descended to flight level 310.

Subsequently, the FAA issued an order seeking to suspend the airman's commercial pilot certificate for 90 days for allegedly violating FARs 91.123(a) and (b) (compliance with ATC clearances and instructions) and 91.13(a) (careless and reckless). After a hearing, the ALJ upheld the violations, but reduced the suspension from 90 to 60 days. The airman then appealed to the full Board.

On appeal, the airman argued that the ALJ erred in finding that he had violated FARs 91.123(a) and (b) and 91.13(a) because he responded to ATC’s instructions "in the safest possible manner, by advising ATC that he could not descend because a descent would compromise fuel reserves on his aircraft." However, the record indicated that the airman did not declare an emergency and had enough fuel to complete his trip. He also argued that the 91.13(a) violation was improper because his primary concern was safety.

The Board rejected the airman's arguments holding that "given the time-sensitive nature of ATC communications and aviation operations, combined with the fact that air traffic controllers must communicate with multiple aircraft within the same short period of time, ATC instructions are not subject to negotiation." It went on to observe that "an operator’s failure to adhere to an ATC instruction will often render the operator in violation of § 91.13(a), because, in general, such refusal is careless and reckless."

This case is instructive because it clearly states the Board's rigid position on this issue. If an airman chooses to disregard an ATC instruction, as in this case, the airman will have the burden of justifying the refusal. In the absence of an emergency or fuel critical situation, that burden may be tough to meet.

Posted by Greg

September 20, 2007

FAA Form 337s For Extended Range Fuel Tanks Go Missing

If you have had extended range fuel tanks installed in the passenger or baggage compartment of your aircraft within the last twenty years (since 1987), it is possible that the corresponding FAA Form 337 your A&P mechanic was required to complete and send in to the FAA never made it. According to a Final Rule published today, the FAA hasn't been receiving as many Form 337s for extended-range fuel tanks as it had in the past. When it investigated the situation, the FAA discovered that FAR Part 43, Appendix B, which was amended back in 1987, provides an incorrect address for mailing Form 337s disclosing extended range fuel system installations.

In order to rectify the situation, the Final Rule advises that "[a]ny FAA Form 337 that describes a modification to an aircraft fuel system or that shows additional tanks installed, should be mailed to the FAA, Aircraft Registration Branch, AFS-751, P.O. Box 25724, Oklahoma City, OK." All other FAA Form 337s should be mailed to the FAA, Aircraft Registration Branch, AFS-750, P.O. Box 25504, Oklahoma City, OK.

The amendment contained in the Final Rule is effective September 20, 2007. If for some reason you have questions regarding the Final Rule or would like further information, you may contact Kim Barnette, Aircraft Maintenance Division, Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202- 493-4922); facsimile: (202-267-5115); e-mail: kim.a.barnette@faa.gov.

Since copies of any Form 337s submitted in connection with an aircraft remain with that aircraft's maintenance records, along with a corresponding logbook entry, this probably isn't a big issue for aircraft owners. In fact, the only way I can think of that this issue would arise for an aircraft owner is if the aircraft owner, or a potential purchaser of the aircraft, requested a copy of the aircraft's records from the FAA in Oklahoma City and, upon review, discovered that the FAA was missing a Form 337 that was prepared in connection with an extended range fuel system installation. Probably not a real common occurrence.

As a side note, I wonder what happened to all of the Form 337s that went to the wrong address. Are they collecting dust in some unopened post office box in Oklahoma City? Or were they all returned as undeliverable and none of the A&P mechanics during the past 20 years let the FAA know about the problem? My vote is with the former.

Posted by Greg

September 19, 2007

FAA Aviation Safety Inspectors Have To Comply With TSA When Going Through Security

The FAA today published a Notice of Proposed Rulemaking addressing the authority of FAA Aviation Safety Inspectors (ASI) to access air operations areas (AOAs), secured areas, and security identification display areas (SIDAs). Apparently two previous rulemakings somehow removed the regulatory language that implemented the ASIs' statutory authority for access to these areas.

The NPRM was issued to reiterate and clarify the authority of an ASI with the proper credentials to access the AOAs, secured areas, and SIDAs of an airport. in order to ensure that they have "access to these areas of an airport so they can perform official duties in support of the FAA's safety mission." Under the new rule, airport operators must grant ASIs with proper credentials free and uninterrupted access to airports and facilities to conduct safety inspections. According to the FAA, the NPRM does not substantively change any requirements in 14 CFR, nor does the NPRM's reestablishment of these requirements in a new part 153 impose any additional obligations on operators affected by the rules. As such, the NPRM reaffirms that "when entering the sterile area through the TSA screening checkpoint, FAA personnel will continue to comply with TSA's screening procedures."

Comments to the NPRM are due on or before October 19, 2007. If you would like further information regarding the NPRM, you may contact Pat Hempen, Federal Aviation Administration, Flight Standards Service, Air Transportation Division (AFS-200), 800 Independence Avenue, SW., Washington, DC 20591; Telephone 202-267-8166, E-mail patrick.hempen@faa.gov.

Posted by Greg

September 18, 2007

NTSB Affirms FAA's Revocation Of St. Louis FSDO Operations Supervisor's Airman Certificates

In a recent decision, Administrator v. Hodges, the NTSB has affirmed the revocation of the airman and certified flight instructor certificates held by an operations supervisor with the St. Louis FSDO. The emergency revocation order was based on a May 2005 incident in which the airman allegedly presented an application, FAA Form 8710-1, Airman Certificate and/or Rating, to an Aviation Safety Inspector in her FSDO who she also happened to supervise at the time. The airman asked the inspector to renew her certified flight instructor certificate (CFI). Although the application was dated February 28, 2005, and the airman's old certificate had expired on February 28, 2005, the inspector completed the renewal three months after the certificate's expiration.

Almost a year later, in June 2006, following his retirement from the FAA, the inspector contacted an FAA enforcement attorney and told him that he and the airman had backdated the forms for the CFI renewal package. Based upon the former inspector's statement and its own investigation, the FAA then issued an emergency order revoking the airman's flight instructor certificate and airman certificate with commercial pilot privileges, based on the airman's alleged violation of 14 C.F.R. § 61.59(a)(1)(Falsification, reproduction, or alteration of applications, certificates, logbooks, reports, or records). After a hearing, the NTSB ALJ affirmed the FAA's order of revocation.

On appeal to the full Board, the airman argued that the ALJ should have dismissed the FAA's complaint based upon the stale complaint defense. The stale complaint defense provides for dismissal of allegations in a complaint regarding offenses that occurred more than 6 months prior to the FAA's advising the airman of the reasons for proposed action. However, the stale complaint defense does not apply where lack of qualification is alleged by the FAA. In such cases, the ALJ must first determine whether an issue of lack of qualification would be presented if all of the allegations, stale and timely, are assumed to be true. If lack of qualification is presented, the case proceeds.

In rejecting the airman's appeal, the Board observed that "[f]alsification of required documents has everything to do with qualification to hold any certificate. It does not matter that the falsification was 'not directly related to the documents allegedly falsified'". It then concluded that "[t]his is a lack of qualification because it involves the judgment and responsibility to comply with rules and regulations designed to ensure safe operation and safety in air commerce" and "[w]e rely on airmen to be truthful on documents relating to aviation matters, and especially those airmen upon whom we rely to enforce the regulations."

Nice to see a case like this dealt with out in the open, rather than simply being swept under the carpet. I think those who enforce the regulations should, at a minimum, be held to the same standard as those to whom the regulations apply, and, perhaps, it makes sense to hold them to an even higher standard. Either way, those who enforce the regulations should be held accountable, and I think this case accomplishes that objective.

Posted by Greg

September 06, 2007

Air Charter Broker Enters Into Consent Order With The DOT Regarding Alleged Violation Of 49 U.S.C. 41712

An air charter broker entered into a consent order with the DOT on August 10, 2007 to resolve allegations by the DOT that the charter broker had unlawfully engaged in an unfair and deceptive trade practice and an unfair method of competition in violation of 49 U.S.C. 41712. According to the Consent Order, the DOT believed that the air charter broker had marketed and sold air transportation services ultimately operated by a company that did not hold proper authority from the Department. DOT has found entities that have facilitated the unlawful common carriage operations of third-parties to have themselves engaged in an unfair and deceptive practice and an unfair method of competition in violation of 49 U.S.C. 41712 when the they knew or should have known that the unlicensed entities lacked economic authority.

In this case, the DOT alleged that the the charter broker entered into a "charter marketing agreement" with a non-common carrier that owned and operated a single executive-configured Boeing 737 pursuant to 14 C.F.R. Part 125. Both the broker and the carrier believed that the carrier's aircraft was going to be added to an air-carrier certificate that would allow it to be operated for charter flights. The charter broker marketed use of the aircraft for charter and, in fact, secured charter flights on behalf of two customers. However, the carrier was unable to have its aircraft added to the air-carrier's certificate and, unfortunately, performed the charter flights previously booked by the charter broker anyway.

The DOT concluded that the unauthorized common carriage operations were the fruit of the charter broker's marketing efforts, which the charter broker undertook with knowledge that the carrier did not have economic authority. As a result, the charter broker was an instrument of the carrier's illegal activity and, by facilitating the carrier's illegal conduct, it engaged in an unfair and deceptive trade practice and an unfair method of competition in violation of section 41712.

This case represents the continuing fallout of FAA's/DOT's heightened scrutiny of air charter broker's and charter operators. Air charter brokers would do well to familiarize themselves with the DOT's Notice Regarding The Role of Air Charter Brokers in Arranging Air Transportation

Posted by Greg

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