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November 18, 2009

DOT Inspector General Posts Redacted Version Of Report On Aircraft Repair Station Security

Coincidentally, or not, according to a note on the DOT Office of Inspector General ("OIG") website today, the OIG has "re-posted" a redacted version of a February 28, 2003 report of an audit it performed of air carriers’ use of aircraft repair stations. The OIG reviewed security at certain repair stations and discovered security vulnerabilities at repair stations located at commercial and general–aviation airports and off airport property. At that time, the OIG "recommended that TSA conduct risk–based security assessments as a first step in determining the actions needed to address repair–station security." The version of the audit report posted today has "been redacted by TSA to protect security sensitive information."

This action seems to me to be not only pointless, but also a waste of taxpayer time and money. After all, it has only been over 6 1/2 years that the un-redacted version of the report has been available to the public. I suspect that if someone wanted to use the "security sensitive information" contained in the original report, he or she would have done so by now. I don't know about you, but I feel safer. Not.

Posted by Greg

TSA Publishes Proposed Aircraft Repair Station Security Rule

The TSA today published its Notice of Proposed Rulemaking regarding aircraft repair station security. The TSA is proposing to issue regulations to improve the security of domestic and foreign aircraft repair stations. The rule would require FAR Part 145 repair stations, foreign or domestic, to carry out a standard security program and to comply with additional security related requirements. Under the rule, the TSA would also have the authority to inspect repair stations and to require the FAA to suspend or revoke the certificate of any non-compliant repair station.

Comments to the rule are due by January 19, 2010. For additional information regarding the rule, you may contact Celio Young, Office of Security Operations, TSA-29, Transportation Security Administration, 601 South 12th Street, Arlington, VA 20598-6029; telephone (571) 227-3580; facsimile (571) 227-1905; e-mail celio.young@dhs.gov.

Posted by Greg

November 16, 2009

DOT Increases Montreal Convention Liability Limits

In a Notice published in the Federal Register today, the Department of Transportation advises U.S. and certain foreign air carriers of inflation adjustments to liability limits of air carriers and foreign air carriers under the Montreal Convention. The Convention applies to U.S. and foreign air carriers that provide international carriage between the U.S. and other countries who are also parties to the Convention, as well as all air carriers who provide round trip foreign air transportation that originates and terminates in the U.S. The Convention limits an affected air carrier's liability for damages for passenger death or injury, delay in passenger's arrival, and the loss, delay or damage to baggage or cargo.

The liability limits are defined in terms of Special Drawing Rights ("SDR"), "a defined basket of major currencies periodically reviewed by the International Monetary Fund to reflect the relative importance of the constituent currencies." As of October 28, 2009, a U.S. dollar's value in terms of SDR s was $1.58. The increased limits in terms of SDRs are as follows: for destruction, loss, damage or delay of cargo 19 per kilogram (currently 17); for destruction, loss, damage, or delay of baggage, per passenger, 1,131 (currently 1,000); for delay in carriage of passengers, 4,694 (currently 4,150); "strict liability" for death or bodily injury to passengers, 113,100 (currently 100,000). The increased amounts take effect December 30, 2009 and reflect a 13% rate of inflation between 2003 and 2008.

The Notice advises affected air carriers to revise their contracts of carriage, tariffs, required notices, and practices to conform to the increased limits or risk sanction by the Aviation Enforcement Office for unfair or deceptive business practice and unfair methods of competition in violation of 49 U.S.C. 41712. For further information regarding the Notice, you may contact Nicholas Lowry, Attorney, Office of Aviation Enforcement and Proceedings (C-70), 1200 New Jersey Ave., SE., Washington, DC 20590, (202) 366-9349.

Posted by Greg

November 11, 2009

FAA Releases Portable Electronic Device Fact Sheet

On November 10, 2009 the FAA released a new Fact Sheet regarding portable electronic devices ("PEDs") including cell phones, pagers, pdas, MP3 players etc. and the use of WiFi. The Fact Sheet discusses in very general terms the restrictions/limitations on the use of PEDs on board commercial airlines. However, if you would like more detailed discussion of the topic, including links to the applicable regulations and FAA guidance, please read my article on the subject here.

Posted by Greg

November 10, 2009

How Not To Conduct A Demonstration Flight Under FAR 91.501(b)

The NTSB has affirmed an order suspending an airman's certificates for 30 days for violations arising from a flight which the airman characterized as a demonstration flight under FAR 91.501(b). In Administrator v. McGhee the airman operated a Cessna Citation carrying passengers on a flight on behalf of an air carrier which held an FAR Part 135 certificate authorizing the air carrier to conduct on-demand helicopter operations. However, the Citation was not listed on the air carrier's operation's specifications. As a result, the FAA alleged that the airman, on behalf of the air carrier, operated the Citation as a direct air carrier when the air carrier did not have authority to operate the flight, thereby violating FARs 135.343 (requiring appropriate crewmember training prior to operating flight under Part 135) and 91.13(a) (careless and reckless) because the airman had not fulfilled the training requirements of Part 135.

The FAA's order suspended all of the airman's certificates for 90 days. However, the airman appealed the order to the NTSB arguing that the flight was really a demonstration flight under FAR 91.501(b). After a hearing before an NTSB administrative law judge ("ALJ"), the ALJ found that the airman had the operated a flight without authority under Part 135, rather than in compliance with Part 91. The ALJ affirmed the violations alleged by the FAA, but he reduced the suspension from 90 to 30 days since the airman had only operated one flight in the Citation. The airman then appealed the ALJ's decision to the full Board.

On appeal, the airman repeated his argument that the flight was a demonstration flight and not a Part 135 charter flight. The Board initially observed that "where a passenger has an expectation of being charged for a flight, this expectation indicates that the flight did not occur under the provisions of 14 C.F.R. part 91." It further noted that a passenger may only waive the protections afforded by Part 135 knowingly.

Next, the Board recounted the evidence supporting the conclusion that the flight was a charter flight. The Board observed that the FAA presented evidence showing money was paid by the passengers' employer to the air carrier in excess of the flight expenses allowed under FAR 91.501(d) (e.g. fuel, oil, lubricants, crew expenses, hangar costs, insurance) and the employer considered the flight to be a charter flight under part 135. Additionally, testimony indicated that the employer was not considering purchasing an aircraft and the Citation's owner did not believe that the airman had conducted any demonstration flights in the aircraft.

Further, the Board recounted the evidence the airman should have been able to provide, but didn't, to show that the flight was a demonstration flight. The Board expected that the airman would have been able to explain why he chose the particular destination for the demonstration flight, and why the passengers disembarked at the destination and stayed for several hours. The Board also felt the airman would have likely spoken with the passengers about the aircraft while at the destination; but, the airman testified that he did not speak with the passengers.

Finally, the airman testified that the air carrier contacted him and asked him to conduct the flights, even though the air carrier had no interest in purchasing the Citation and was not otherwise involved in a potential sale of the aircraft. Additionally, although the airman was the "aircraft manager” for the Citation, he couldn't explain why he didn't have any direct contact with the passengers' employer without the air carrier's involvement. The Board concluded that the airman had not met his burden of proving the flight was conducted for demonstration purposes.

As this case shows, a belief that a particular flight is a Part 91, rather than a Part 135, flight is not enough to avoid sanction by the FAA. The facts need to support any argument that a flight for which compensation is received is something other than a Part 135 charter flight. Unfortunately for the airman in this case, he didn't have those facts. In this time of heightened scrutiny by the FAA, airmen should take care to ensure that they have the facts and documentation necessary to prove their compliance with the FARs applicable to their operations.

Posted by Greg

November 09, 2009

NTSB Affirms Suspension Of Mechanic's Certificate For Improper Repairs

In a recent decision, Administrator v. Nyerges, the NTSB affirmed the FAA's suspension of a mechanic's certificate. The case first appeared on the FAA's radar, as many cases do, during the FAA's investigation of an incident in which a Beechcraft Queen Air's landing gear collapsed on landing. During a review of the aircraft's maintenance records, the FAA discovered that the mechanic had performed maintenance on the aircraft after the incident. As a result of its investigation, the FAA subsequently alleged that the mechanic violated FARs 43.13(a) and (b), and 43.9(d), because the mechanic conducted a major repair, as defined by FAR Part 43, Appendix A, § (b)(1)(xxii) and (xiv), and did not submit FAA Form 337 concerning the repair, and the mechanic did not conduct the repair in the manner required by Advisory Circular (AC) 43.13-1B (requires a mechanic to use approved data for repairs). After a hearing, the administrative law judge ("ALJ") affirmed the FAA's order and imposed a 120 days suspension of the mechanic's certificate. The mechanic then appealed the ALJ's decision to the full board.

On appeal, one of the arguments asserted by the mechanic was that the FAA's complaint did not include sufficient facts to prove that the mechanic undoubtedly violated the regulations. The Board initially noted that the function of a complaint is to notify the airman of the charges in order to allow the airman to prepare a defense. It then agreed with the ALJ's determination that the complaint adequately put the mechanic on notice of the charges, and provided sufficient details concerning the allegations contained in the complaint.

The mechanic also argued that the repairs he performed were not "major" because the FAA had classified the gear-up landing as an "incident" rather than an "accident." However, the Board again agreed with the ALJ's position that the classification of the gear-up landing as an "incident" was irrelevant to the issue of whether the mechanic violated the regulations. The Board determined that the FAA had provided sufficient evidence to show that the aircraft "was not repaired in accordance with methods, techniques, and practices prescribed in the current manufacturer’s maintenance manual," and the mechanic "did not repair the parts in a manner equal to their original or properly altered condition." As a result, the Board affirmed the suspension of the mechanic's certificate.

I am not surprised by the Board's decision on these two issues. With respect to the complaint, on occasion a complaint issued by the FAA will omit some necessary facts or allegations such that the airman does not have sufficient notice of a particular charge. However, most of the time a complaint will have sufficient facts to put the airman on notice of the charges against him or her. With respect to the accident/incident argument, the regulation only addresses "major" repair. The classification of the repair dictates whether an accident or incident occurred, not the other way around.

Interestingly, the mechanic in this case did not have an attorney, aviation or otherwise, represent him at the hearing or on his appeal. Whether this had any bearing on the arguments made by the mechanic, I don't know. However, perhaps the result would have been better with an aviation attorney defending him.

Posted by Greg

November 06, 2009

DOT OIG Concludes That FAA Still Needs To Take Measures To Secure ATC System Security

In a November 2, 2009 Report issued by the Department of Transportation Office of Inspector General ("OIG"), the OIG discussed its review of the FAA’s renewed initiatives in addressing air traffic control (ATC) systems security weaknesses. The report noted that Homeland Security Presidential Directive (HSPD)–7 designates ATC systems as part of the Nation’s critical infrastructure which the FAA must protect by preventing disruption wherever possible and minimizing disruptions when they do occur. The OIG's audit objectives were to "determine FAA’s progress in correcting security weaknesses previously identified in the air traffic control (ATC) system by assessing (1) the status of Business Continuity Plan implementation and (2) the enhanced methodology used in the certification and accreditation of air traffic control systems security at operational sites."

The audit revealed that several unresolved technical challenges (staffing issues and funding requirements) could delay ATC recovery site readiness. It also found that the FAA's process of reviewing ATC systems security, although enhanced from previous levels, are still not properly carried out to ensure security protection of operational ATC systems. The report concludes with eight recommendations for the FAA:

Conduct testing to ensure that radar signals will not be lost or disrupted when using modems and telephone/fax lines to send radar data to the recovery site.
(a) Develop a detailed plan addressing how FAA will install network connections between radio towers and the recovery site through the local exchange carrier during BCP operations, and (b) conduct tests to ensure that communications through the new connection can meet the latency (speed) requirements for air travel safety.
Develop a plan to address human integration issues such as relocating and housing air traffic controllers at the Technical Center recovery site on a long-term basis.
Conduct a credible cost estimate for testing the integrity of the alternate methods of re-routing radar and voice communication signals to the recovery site, and addressing human integration issues at the recovery site. Use such analysis to secure funding accordingly to complete the business continuity plan.
Assess the potential impact on air travel of losing each, or at least the most critical, en route centers for 3 weeks, and provide the results to the Secretary of Transportation in support of HSPD–7.
Enhance the site-selection process by requiring (a) thorough reviews of site- system configuration to ensure that sites that pose the greatest risk of unauthorized hardware/software configurations are selected for review and (b) documented justification for the sites selected for review.
Enhance training on on-site review by requiring review teams to conduct examination and/or testing to verify that required security controls are in place at operational sites.
Increase oversight of the on-site review process to ensure that all security control checks on the questionnaires are completed or properly justified if not reviewed.

The report notes that the FAA concurred with the OIG's recommendations and "has begun to take appropriate or alternative corrective actions and provided acceptable target dates for completing these actions." For more information on the FAA's responses to the OIG's recommendations, including explanations of actions taken and actions yet to be completed, you may review them at the end of the report.

Posted by Greg

November 03, 2009

FAA Issues New DUI/DWI Policy

According the Winter Edition of The Federal Air Surgeon's Medical Bulletin, the FAA has a new policy regarding its treatment of an airman who receives his or her first DUI (driving under the influence) or DWI (driving while intoxicated). Up until now, an airman's first DUI/DWI offense was a "gimme". Although the aviation medical examiner ("AME") was supposed to obtain court documents relating to the offense and question the airman about his or her alcohol or drug use to determine if the airman has a substance abuse problem, the FAA did not require any further information or explanation from the airman and the DUI/DWI did not have any adverse impact on the airman's ability to obtain a medical certificate. However, that has changed.

Under the new policy, when an airman reports a DUI/DWI on his or her medical application, the airman will still have to provide the AME with copies of the court documents relating to the offense and the AME will question the airman about his or her alcohol or drug use to determine if the airman has a substance abuse problem. However, if the airman has a blood alcohol level greater than 0.15 or refused to let the police take a sample, the AME may not issue the medical certificate and will have to defer the medical application to Aeromedical Certification in Oklahoma City. When the Aeromedical folks receive the application, they will require that the airman obtain a substance abuse evaluation from a recognized counselor before they will consider issuing the airman a medical certificate.

At first blush, this new policy may appear to create more incentive for an airman not to disclose the DUI/DWI on the medical application. After all, you might wonder, "if I don't disclose the offense, how will the FAA know?" Well, when an airman signs the medical application, he or she gives the FAA permission to search the National Driver Registry. Each week, the FAA Security Division sends airmen-identifying features to the registry and, if they receive a "hit," the FAA checks the airman’s medical examination records to see if the airman reported the DUI/DWI as required. And keep in mind, the consequences for failing to disclose remain severe: suspension of airmen and medical certificates for failing to report within 60 days under FAR 61.15(e) and revocation of all airmen certificates for failure to disclose on the medical application.

Unfortunately, this policy change, coupled with the recent change to FAA Form 8500-8 which now requires disclosure of "arrests" in addition to the previously required "convictions and administrative actions," will certainly create new problems for an airman with a first time DUI/DWI.

Posted by Greg

November 02, 2009

GAO Issues Report On Safety Effects Of Modifying the Age Standard For Commercial Pilots

On October 30, 2009, the Government Accountability Office ("GAO")issued a report titled Aviation Safety: Information on the Safety Effects of Modifying the Age Standard for Commercial Pilots as a follow up to the 2007 enactment of the Fair Treatment for Experienced Pilots Act (49 U.S.C. 44729(a)) (the "Act") which extended the retirement age for Part 121 air carrier pilots from 60 to 65. The GAO reviewed the FAA’s accident and incident data and NTSB’s accident data from December 2007 through September 2009. The data revealed no accidents or incidents that were caused by the health conditions of pilots 60 years or older, which the GAO interpreted as "no adverse safety effects attributable to the increase in the age limit for pilots."

However, the GAO noted that its assessment isn't definitive because the two year period since the Act was passed hasn't provided flight records for a sufficient enough number of pilots aged 60 and over. The report then observes that "it is premature to conclude that the increase in the age limit for pilots to age 65 will or will not have an impact on a pilot’s performance and aviation safety."

This report isn't particularly helpful, given the lack of data and, therefore, limited conclusion. Seems like a very minimalistic attempt to comply with the Act's requirement to report on the Act's impact on aviation safety. This is especially true in light of the availability of additional data from international air carriers and Part 135 operators who had previously been employing pilots forced out by the Age 60 rule. Unfortunately the GAO didn't consider that data. But least a limited conclusion of no adverse impact on aviation safety provides some confirmation for the Act. Better than the alternative, I guess.

Posted by Greg

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