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September 29, 2009

The FSS Weather Briefing

At one point or another, all pilots have called their local flight service station ("FSS") to obtain a weather briefing for their intended flight. When you call FSS, how much information is the FSS specialist/briefer required to give you? Or, from a legal perspective, what duty does the FSS Specialist owe to a pilot who calls for a weather briefing? For the answer to this question, please read my latest article on the topic here.

Posted by Greg

September 24, 2009

NTSB Will Deny A Request For Reconsideration Unless Requirements Are Met

In several recent decisions, Administrator v. Jablon and Administrator v. Ledbetter and Jedszka, the NTSB denied the airmen's requests for reconsideration based upon the airmen's attempts to simply re-argue their case, rather than presenting the Board with new matters that would materially affect the case. As I discuss more thoroughly in my article on requests for reconsideration, the Board will not consider, and will dismiss, repetitious requests for reconsideration. Simply trying to re-argue points made in the underlying case or pointing out that the Board's analysis was incorrect are not legitimate bases for a request for reconsideration under the Board's rules. Additionally, if an airman presents new matter for the Board to consider, the airman will need to show not only that the new matter was not reasonably discoverable during the discovery period prior to the initial hearing before the administrative law judge, but he or she will also need to prove that the new matter would materially affect the case.

Unfortunately, if the Board has denied an airman's appeal, unless the airman can satisfy the Board's requirements for a request for reconsideration, the airman's only recourse at that point in time will be to appeal the Board's decision to the applicable Circuit Court of Appeals.

Posted by Greg

September 18, 2009

FAA Issues Fact Sheet For Its "Consistency and Standardization Initiative"

Yesterday the FAA issued a Fact Sheet for its "Consistency and Standardization Initiative" ("CSI") (formerly known as its "customer service initiative"). The CSI is intended to provide a process for the FAA's stakeholders/customers (certificate holders etc.) to request review of decisions at progressively higher levels within the FAA "with no fear of retribution" and to "ensure consistent interpretation and implementation of agency regulation and policies."

Under the CSI, when someone (the "stakeholder") disagrees with a decision from an FAA inspector or engineer, the FAA employee’s manager reviews that decision and may communicate directly with the stakeholder in an attempt to resolve the issue. If that doesn't work, the stakeholder presents the issue to the field office manager with specific documentation supporting the stakeholder's position. If the issue isn't resolved at the field office level, the stakeholder can appeal to the appropriate FAA regional office. At that point, the regional manager and other FAA employees may meet directly with the stakeholder in an attempt to negotiate a decision resolving the issue. If the issue isn't resolved, the stakeholder's appeal may then be addressed to the "service" level (i.e. Flight Standards or Aircraft Certification at FAA Headquarters in Washington).

The service director of the applicable FAA office reviews the stakeholder’s documentation, the field office’s resolution, and any additional information added during the division or directorate review. According to the fact sheet, the goal at that point "is to determine if there is any new or mitigating information that might help identify alternate paths for resolution." The FAA Chief Counsel's office may be consulted at that point as well. The service director will issue a decision that is considered a "final technical determination," which may still be appealed to the Associate Administrator for Aviation Safety for a review.

If the Associate Administrator disagrees with the service director’s decision, he or she may direct one of the lower levels to resolve the issue. However, if the Associate Administrator concurs with the service director’s decision, that's it. The decision is final and the stakeholder has exhausted the appeal process under the CSI.

It will be important for stakeholders/certificate holders to take advantage of the CSI. Why, you might ask with a healthy degree of skepticism? First, because its possible (although that same skepticism may prevent you from agreeing) that the CSI may, in fact, help to resolve a dispute. Second, before a court will step in and resolve a dispute you may have with the FAA, it will require that you have exhausted your administrative remedies. That means you will need to have pursued resolution all the way through the CSI process before you ask the court for help.

Whether the CSI will, in fact, result in more consistency between FAA offices is anybody's guess. It certainly would be nice to have some uniformity among the FSDOs etc. I guess time will tell.

Posted by Greg

September 17, 2009

Pilot Prosecuted For Forging Airworthiness Certificate

According to a Report issued by the Department of Transportation Office of Inspector General ("DOTOIG"), on September 8, 2009 a New York resident pled guilty to a felony charge related to his use and possession of a forged FAA Standard Airworthiness Certificate for a glider aircraft. (The report refers to the individual as a "former pilot" which leads me to believe that the individual's airman certificates were revoked when the FAA learned of the forged airworthiness certificate).

Apparently the individual installed a fraudulent airworthiness certificate on a newly–acquired glider aircraft that had not been inspected and certified as airworthy by the FAA. The investigation, conducted jointly by the FAA and the DOTOIG, revealed that the glider was flown by the individual and multiple members of a soaring club at least 41 times during the 2008 Labor Day weekend. However, the individual was not arrested until April 28, 2009.

This is another example of how an airman's fraudulent conduct can expose the airman not only to certificate action (revocation in almost all cases), but also to criminal prosecution. I think the airman's prosecution, rather than simply the revocation of his airman certificates, resulted from the fact that multiple club members flew the aircraft and, in theory at least, were exposed to potential harm due to the fraudulent airworthiness certificate. Just my guess since the Report doesn't provide any further factual information. In any event, yet another reason to play it straight with aviation documentation (e.g. logbooks, medical applications etc.).

Posted by Greg

September 16, 2009

Cape Town Convention Update

During 2009 the European Union (EU) became the first economic block to ratify the Cape Town Convention and Protocol. As you may recall, the Convention applies to a transaction involving (1) aircraft that are type certified to transport at least 8 persons including crew or to transport goods in excess of 2750 kilos, engines that are rated at least 550 hp or 1750 pounds of thrust, and helicopters that are type certified to transport at least 5 persons including crew or to transport goods in excess of 450 kilos; and (2) a. For aircraft: If the Aircraft is registered in a contracting state (a country that has ratified Cape Town) or the debtor is "situated" in a Contracting State at the time of the "conclusion" of the relevant agreements or if the Aircraft is not registered in a Contracting State but as part of the relevant transaction there is an agreement to register the aircraft in a Contracting State or b. For engines: If the debtor is "situated" in a Contracting State at the time of the "conclusion" of the relevant agreements.

So far, 31 countries have ratified the Convention and Protocol. With the EU ratification, it is expected that many of the EU member states will also ratify the Convention. Currently, only Ireland and Luxembourg, both EU member states, have ratified the Convention and Protocol.

Of additional interest, the commission of experts ("CESAIR") which advises the International Civil Aviation Organization ("ICAO") has been reappointed and extended. CESAIR provides expert advice and recommendations on Regulation changes and other matters which come before ICAO regarding the efficient operation of the International Registry.The following countries are represented: Canada, China, France, Ireland, Nigeria, Pakistan, Singapore, Switzerland, South Africa, United Arab Emirates, United Kingdom, the United States. Curiously, several of the CESAIR members are EU members who have not yet ratified the Convention and Protocol, although perhaps that will now change with the European Union ratification.

Posted by Greg

FAA Publishes Final Report of the 2008 Amateur-Built Aircraft Aviation Rulemaking Committee

The FAA today published a Notice announcing the issuance of the final report of the 2008 Amateur-Built Aircraft Aviation Rulemaking Committee (2008 ARC). The 2008 ARC's report contains recommendations regarding the disposition of (1) public comments received on proposed changes to FAA Order 8130.2F and AC 20-27G (successor to AC 20-27F); (2) the definition of "fabrication" as it differs from "assembly" within the scope of FAR 21.191(g), Operating amateur-built aircraft; and (3) a process to minimize the impact of the proposed policy on amateur-built kits that were evaluated by the FAA before February 15, 2008. The FAA will take these recommendations into consideration as it finalizes its revisions to FAA Order 8130.2F and AC 20-27G

A copy of the final report is available online here. If you would like further information regarding the report and its recommendations, you may contact Frank P. Paskiewicz, Manager, Production and Airworthiness Division, Aircraft Certification Service, AIR-200, Federal Aviation Administration, 950 L'Enfant Plaza, SW., 5th Floor, Suite 500, Washington, DC 20024; telephone number: (202) 385-6346. Also, you can listen to a podcast of Earl Lawrence from the Experimental Aircraft Association discussing the report at UltraFlight Radio (the podcast should be available within the next couple of days).

Posted by Greg

September 09, 2009

Illicit Drug, Not Drug "Metabolite", Must Be In Airman's System At Time Of Operation To Violate FAR 91.17(a)(3)

The NTSB recently reversed an administrative law judge's ("ALJ") decision in which the ALJ affirmed the FAA's revocation of an airman's airline transport pilot, commercial pilot, and flight instructor certificates for allegedly violating FAR 91.17(a)(3) ("No person may act or attempt to act as a crewmember of a civil aircraft . . . while using any drug that affects the person’s faculties in any way contrary to safety.") In Administrator v. Holland the FAA issued an order revoking the airman's certificates after the airman's drug test revealed a positive result for cocaine. The airman then appealed the revocation to the NTSB.

During the hearing before the ALJ, the FAA's witnesses testified that a cocaine metabolite was present in the airman's system, rather than the drug cocaine. (Metabolites are molecular compounds produced by the body, and are present in the body for at least some time period after the body metabolizes a drug or other substance.) Although the airman raised a number of defenses, the ALJ rejected the defenses and affirmed the FAA's order of revocation. The airman then appealed the ALJ's decision to the full NTSB.

On appeal, the airman raised a number of arguments relating to the conduct of the test and chain of custody for the specimen. The airman also argued that the FAA did not prove that he violated FAR 91.17(a)(3) because it did not establish that the airman operated an aircraft "while using" a "drug" that affected his faculties. However, the Board focused its analysis on this latter argument.

The Board initially observed that it is required to defer to the FAA's interpretation of a regulation unless the FAA attempts to impose a requirement not contained in the plain language of the regulation, in which case the FAA is not entitled to deference. With that background, the Board reiterated that the FAA was attempting to interpret the presence of drug metabolites in an airman’s urine prior to a flight as prima facie evidence that the airman was "using" a prohibited substance at the time of his or her operation of an aircraft contrary to FAR 91.17(a)(3).

The Board then determined that the FAA's interpretation that "metabolite" is equivalent to "drug" and that any metabolite level alone would suffice to prove a violation of FAR 91.17(a)(3) was an arbitrary and capricious interpretation of the plain language of FAR 91.17(a)(3). The Board concluded that FAR 91.17(a)(3) "proscribes having a drug 'that affects a person’s faculties in any way contrary to safety' in one’s system at the time he or she serves or attempts to serve as a crewmember." Since the FAA did not present any evidence showing that cocaine or any other prohibited substance was actually in the airman's system at the time he operated the flight, the FAA failed to prove a violation of FAR 91.17(a)(3).

The Board definitely had a hard time ruling in favor of the airman in this case: "[W]e are ourselves troubled by the evidence indicating the presence of cocaine metabolites in respondent’s system contemporaneous with his operation of an aircraft and while in possession of a commercial pilot certificate." But it made the right decision by, surprisingly, refusing to defer to the FAA's interpretation of FAR 91.17(a)(3).

Unfortunately for the FAA, this case was lost because the FAA only alleged a violation of FAR 91.17(a)(3), rather than also including FAR 67.107(b)(2), 67.207(b)(2), or 67.307(b)(2) (depending upon the class of medical certificate held by the airman) which would be violated by a positive drug test, regardless of the "drug"/"metabolite" distinction. Bet the FAA, or at least the FAA attorney who prosecuted the case, won't make that mistake again.

Posted by Greg

September 02, 2009

FAA Engine And Propeller Directorate Announces Two New Advisory Circulars

Today the FAA's Engine and Propeller Directorate published announcements in the Federal Register regarding two new advisory circulars. The first, Advisory Circular (AC) 33.70-1, Guidance Material for Aircraft Engine Life-limited Parts Requirements, was actually issued on July 31, 2009. AC 33.70-1 provides definitions, guidance, and acceptable methods that may be used to demonstrate compliance with the engine life-limited parts integrity requirements of FAR 33.70 (requirements applicable to the design and life management of propulsion system life-limited parts including high-energy rotating parts).

If you have questions regarding AC 33.70-1 or would like further information regarding the AC, you may contact Timoleon Mouzakis, Engine and Propeller Standards Staff, ANE-111, 12 New England Executive Park, Burlington, MA 01803-5299; telephone: (781) 238-7114; fax: (781) 238-7199; e-mail: timoleon.mouzakis@faa.gov.

The second, Advisory Circular (AC) 33-8, Guidance for Parts Manufacturer Approval of Turbine Engine and Auxiliary Power Unit Parts under Test and Computation, was actually issued on August 19, 2009. AC 33-8 provides guidance for developing substantiation data to support the design approval of critical and complex turbine engine and auxiliary power unit (APU) parts produced under parts manufacturer approval. The AC's guidance is for the comparative test and analysis method used to show compliance to the airworthiness requirements under test and computation, per FAR 21.303 and supports showing the engine or APU still complies with FAR Part 33 and Technical Standard Order C77b.

If you have questions regarding AC 33-8 or would like further information regarding the AC, you may contact Karen M. Grant, Engine and Propeller Standards Staff, ANE-111, 12 New England Executive Park, Burlington, MA 01803-5299; telephone: (781) 238-7119; fax: (781) 238-7199; e-mail: karen.m.grant@faa.gov.

Posted by Greg

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