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January 29, 2010

International Registry Update

The International Civil Aviation Organisation ("ICAO") has approved reappointment of Aviareto to operate the International Registry for a second five year term from 2011 to 2016. Additionally, despite the weak US dollar, reduced number of transactions being processed and necessary capital investment, Aviareto has not requested a fee increase. And, although it hasn't ruled out future fee adjustments, it is interesting to note that the fees have actually remained unchanged since the International Registry opened in 2006.

According to Aviareto, it is also proposing the following changes to the International Registry:

Right to Discharge. This change will allow a user, holding the right to discharge an interest, to transfer that right to another user. It is anticipated that this would be done in conjunction with an assignment or subrogation. This approach will allow users to go back over past assignments and subrogations and, with the consent of the original creditor, have the right to discharge the underlying interest transferred to the assignee. While this transfer of a right to discharge will not be a registration, it will be such for fee purposes and therefore can be included within a registration session under the existing rules.
Entry Points. This change addresses the situation where an Entry Point cannot give a code. (Apparently several situations have arisen with Mexican and US cross border deals and also with Chinese deals.) This change will allow a user to declare on-line that the registration they are making does not qualify for a code under the procedures of the Entry Point in question and then to make the registration without the code.
Name Changes. This change would allow PUEs to change their names on the system and also that names could be changed to correct an error, as well as for the reasons under the existing Regulations and Procedures.
Introduction of a reduced fee for applying to be the administrator of an entity where the incumbent has ceased to be the administrator prior to expiry of the existing licence. A fee of $100 will allow a new administrator to take over the account for the remaining time on that account.
Allowing users to be able to opt out of their extended data being visible to other users. If a user opts out then only basic contact information will be available (Entity name, email address etc).
Users may be allowed to delegate use of their account under new rules.
Other changes relate to amending a fractional interest, the unreliability of electronic notifications and a general rewrite of the rules pertaining to Entry Points.

Aviareto will present the proposed changes to ICAO in March 2010 and, if approved, they will be implemented in new software during Q3 2010. A new edition of the Regulations and Procedures would then be issued to include the changes.

Posted by Greg

January 27, 2010

FAA Clarifies New DUI Policy For AMEs

In the Spring Issue of the Federal Air Surgeon's Medical Bulletin Dr. Warren Silberman, manager of the FAA's Aerospace Medical Certification Division, responds to an aviation medical examiner's ("AME") confusion regarding the FAA's new DUI policy. Specifically, the AME wanted to know when he was required to obtain court documents and defer the medical application. The AME also asked about how to handle an airman who has had one or more certificates issued since a DWI conviction and whether a history of 0.15 or above blood alcohol content ("BAC") before the previous medical certificates were issued now requires a deferral?

Responding to the questions, Dr. Silberman stated:

This only applies to a new offense, meaning a new applicant who now reports a first DUI (driving under the influence) event.
If this is a new student pilot and reporting a single DUI, you only need concern yourself with the event — if it was within the previous five years.
As an aviation medical examiner, you need to obtain the police reports, court documents, etc., from the event (in the past, we were not picky if an AME did not obtain these documents from a single DUI, as long as it was indicated in Block 60 that it had been discussed with the airman).
If, when you obtain these documents, you note that whatever way the sample was obtained, the level was > 0.15, you defer issuance of the medical certificate. If the level was less than this, you may issue and tell us about your actions in Block 60.
If you obtain these documents and note that the airman "refused" to submit for testing, this is considered positive for us, and you should defer the issuance.
In the instances where you end up deferring, you can inform the airman that it will be necessary to obtain a substance abuse evaluation from someone knowledgeable in doing such evaluations.

Although it isn't absolutely clear, it appears that the FAA will not be going back and requiring substance abuse evaluations for DUI events involving a BAC of > 0.15 that are now reported if the DUI event occurred more than five years ago. That's good news in light of the new requirement that "arrests" now be reported on the medical application even if the arrest did not result in a conviction.

Posted by Greg

January 19, 2010

NTSB Affirms Dismissal Of Falsification Claim Against Mechanic

Following recent Court of Appeals' reversals in falsification cases, the NTSB has affirmed an administrative law judge's ("ALJ") dismissal of a claim in an FAA emergency order revoking a mechanic's airman certificates for allegedly falsifying an application for a mechanic certificate in violation of FAR 65.20(a)1. In Administrator v. Alvarez, the FAA alleged that the mechanic provided a false answer to a question which asks, "have you ever had an airman certificate suspended or revoked?" when, in fact, the mechanic's private pilot, flight engineer, and medical certificates had previously been suspended for his failure to report a DUI conviction on his medical certificate application. (The FAA also alleged that the airman had violated 49 U.S.C. 44709 when he failed a re-examination and subsequently failed to surrender his certificate while he scheduled another test. However, I will discuss the issues associated with the results of that claim another time.)

At the hearing before the ALJ, the mechanic testified that he checked "no" on the application because he assumed that the question only applied to mechanic certificates. The mechanic explained that he previously completed an application for renewal of his inspection authorization ("IA") and was told by a local FAA inspector that he should check "no" in response to that application's question of whether his "mechanic certificate and/or ratings [had] been revoked or suspended during the 3-year period preceding [the] application." The ALJ determined that the airman did not falsify the application because he had no knowledge of falsity. The ALJ found that the mechanic was credible and had trusted the FAA inspector who advised him to answer "no" on the IA application, which asked a similar question. As a result, the ALJ dismissed the claim. Not surprisingly, the FAA appealed the ALJ's dismissal to the full Board.

On appeal, the FAA cited 49 U.S.C. § 40102(a)(8) (defining "airman" as a pilot, mechanic, or crewmember) in support of its argument that the mechanic should have answered "yes" to the question of whether he ever had an airman certificate suspended or revoked, since the question included all airman certificates, and not just the mechanic certificate. The FAA also contended that the mechanic's previous falsification violation rendered him generally not credible and the mechanic knew that the reference to "airman certificate" on the application includes all certificates because the mechanic had "a great deal of experience in completing such applications."

The Board initially noted that the ALJ made a credibility determination in favor of the mechanic regarding his lack of knowledge of the falsity of his answer. As a result, in order to succeed the FAA had the burden of proving that the ALJ's credibility determination was "arbitrary, capricious, or clearly erroneous." The Board went on to observe that the FAA did not deny that an inspector may have instructed the mechanic that the question only referred to his mechanic certificate, nor did the FAA provide evidence that the inspector did not or would not do so.

Although the Board recognized its precedent regarding the plain meaning of questions on FAA application forms, it found that the case presented "a unique fact pattern." As a result, the Board "decline[d] to intrude into the province of the law judge" and rejected the FAA's appeal in a decision consistent with the admonitions it received in the Dillmon and Singleton cases decided by the District of Columbia Circuit of the U.S. Court of Appeals.

It is nice to see the Board following the law and its own precedent in spite of the fact that it meant the FAA lost. I think the Board's reference to the "unique fact pattern" is a signal that it will be closely scrutinizing falsification cases in which an airman is able to persuade the ALJ that he or she did not have knowledge the false answer contrary to the FAA's allegations. Thus, although it will still be a challenge, the door remains open for airmen to challenge revocation orders based upon allegations of falsification.

Posted by Greg

January 15, 2010

One Disqualifying Condition Is All It Takes

A recent NTSB opinion highlights the need to "pick your battles carefully" based upon the facts and proper procedure. The case, Petition of Cooper, involved an airman's appeal of the FAA's denial of his application for a first class medical certificate. The FAA denied the application based upon the airman's "history and clinical diagnosis of diabetes mellitus requiring oral hypoglycemic medication for control and bipolar disorder." The FAA cited FARs 67.113(a)(b)(c), 67.213(a)(b)(c), and 67.313(a)(b)(c) in support of its denial (all three regulations identify diabetes mellitus as a disqualifying condition, although FAR 67.113(a)(b)(c) is the regulation specifically applicable to a first class medical certificate). However, the FAA did not cite FARs 67.107, 67.207, nor 67.307 even though those regulations identify bipolar disorder as a disqualifying condition.

The airman appealed the denial to the NTSB. However, the administrative law judge ("ALJ") dismissed the airman’s petition and terminated the case on his own accord without holding a hearing and without any request from the FAA for such a dismissal. The ALJ concluded that a hearing "would serve no useful purpose" because the Board did not have the discretion to reverse the FAA's denial. The ALJ also rejected the airman's argument that he did not have bipolar disorder as moot because the airman had admitted to having diabetes mellitus, a specifically disqualifying condition. Of course the airman then appealed the dismissal to the full Board.

On appeal the airman argued that the ALJ erred when he determined that the FAA’s denial of his application based on bipolar disorder was moot in spite of his diagnosis of and treatment for diabetes. The airman contended that whether he had bipolar disorder was a factual issue that the ALJ must resolve after a hearing, and that bipolar disorder is the only condition that might disqualify him since he would otherwise meet the criteria for a special issuance medical under FAR 67.401 in spite of his diabetes mellitus.

The Board agreed with the ALJ. It held that the diabetes mellitus was a specifically disqualifying condition and that alone justified the FAA's denial of the airman's application for a first class medical certificate. The Board noted that whether the airman qualified for a special issuance in spite of the diabetes mellitus was not an issue before it. Finally, the Board concluded that although the airman had presented evidence that potentially refuted the allegation that he suffered from bipolar disorder, the issue was moot in light of the diabetes mellitus.

The Board's decision is not a surprise. When an airman is denied a medical based upon an admitted disqualifying condition, an appeal will, in almost all cases, be unsuccessful. In that situation, the only recourse for a denied airman is to seek a special issuance. If the FAA refuses to grant a special issuance, an airman may appeal that denial. However, since the Board defers to the FAA's discretion in denying a special issuance, the only way to be successful is to show that the denial is arbitrary or capricious (e.g. that the FAA has granted a special issuance in circumstances that are very similar to or identical with those of the denied applicant).

Fortunately for the airman in this case, he can still apply to the FAA for a special issuance and, if he meets the criteria, the FAA may grant a special issuance in spite of his diabetes mellitus. (This is what he should have done before appealing the initial denial). However, the airman may, unfortunately, still have to fight the FAA's determination that he has bipolar disorder. But if the airman is able to present evidence and facts that convince an ALJ that he does not suffer from bipolar disorder, the airman may ultimately be able to receive a medical certificate.

Posted by Greg

January 07, 2010

NTSB Adds Aircraft Accident/Incident Notification And Reporting Requirements

The NTSB today published a Final Rule that amends its regulations concerning notification and reporting requirements for aircraft accidents or incidents. The Final Rule codifies the amendments that were originally proposed in an October 7, 2008 Notice of Proposed Rulemaking. The NTSB believes the amendments contained in the Final Rule will improve aviation safety.

The Final Rule amends 49 CFR 830.5(a) to include several additional events that will require an aircraft operator to immediately report the event to the NTSB. The additional events include:

Failure of any internal turbine engine component that results in the escape of debris other than out the exhaust path;
Release of all or a portion of a propeller blade from an aircraft, excluding release caused solely by ground contact;
A complete loss of information, excluding flickering, from more than 50 percent of an aircraft's cockpit displays, known as Electronic Flight Instrument System displays, Engine Indication and Crew Alerting System displays, Electronic Centralized Aircraft Monitor displays, or other such displays;
Airborne Collision Avoidance System (ACAS) resolution advisories issued either (1) when an aircraft is being operated on an instrument flight rules (IFR) flight plan and compliance with the advisory is necessary to avert a substantial risk of collision between two or more aircraft, or (2) to an aircraft operating in class A airspace;
Damage to helicopter tail or main rotor blades, including ground damage, that requires major repair or replacement of the blade(s); and
Any event in which an aircraft operated by an air carrier lands or departs on a taxiway, incorrect runway, or other area not designed as a runway, or experiences a runway incursion that requires the operator or the crew of another aircraft or vehicle to take immediate corrective action to avoid a collision.

The Final Rule becomes effective March 8, 2010. If you would like further information regarding the Final Rule you may contact Deepak Joshi, Lead Aerospace Engineer (Structures), Office of Aviation Safety, (202) 314-6348.

Posted by Greg

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