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January 25, 2011

FAA Mandates Crew Resource Management Training For Part 135 Operators

On January 20, 2011, the FAA published a Final Rule requiring that all FAR Part 135 certificate holders "include in their training programs crew resource management training for crewmembers, including pilots and flight attendants." The FAA is hoping that the Final Rule will "reduce the frequency and severity of errors that are crew based, which will reduce the frequency of accidents and incidents within the scope of part 135 operations."

Under the Final Rule, each certificate holder will need to have an approved crew resource management ("CRM") training program, both initial and recurrent, that includes and addresses at least the following issues:

Authority of the pilot in command;
Communication processes, decisions, and coordination, to include communication with Air Traffic Control, personnel performing flight locating and other operational functions, and passengers;
Building and maintenance of a flight team;
Workload and time management;
Situational awareness;
Effects of fatigue on performance, avoidance strategies and countermeasures;
Effects of stress and stress reduction strategies; and

Aeronautical decision-making and judgment training tailored to the operator's flight operations and aviation environment.

Although the Final Rule becomes effective March 22, 2011, operators will have until March 22, 2013 to ensure that all flightcrew members and flight attendants have completed approved CRM initial training with that certificate holder. After that time, the certificate holder will not be able to use flightcrew members or flight attendants unless they have completed either initial or recurrent, as the case may be, CRM training.

Will this rule actually make Part 135 operators safer and reduce accidents? Hard to say. But, I know for certain that compliance with the Final Rule will cost the operators additional time and money to revise their current training programs, to obtain FAA approval for the revised programs and to conduct the initial and recurrent CRM training. Given the likelihood of delays etc. in obtaining FAA approval, I recommend that Part 135 operators start the process now to ensure they will be able to obtain approval and complete their initial CRM training prior to March 22, 2013.

Posted by Greg

January 20, 2011

Complying With A Manufacturer's "Current" Maintenance Instructions

If you own or operate an aircraft subject to FAR § 91.409(f) you know that you need to have an FAA approved maintenance/inspection program in place for your aircraft. One option for complying with this requirement is to use a "current inspection program recommended by the manufacturer." But what version do you need to use? Well, the FAA Chief Counsel issued a Legal Interpretation to answer this question. For the answer to the question and a discussion of the Legal Interpretation, please read my article on the topic here.

Posted by Greg

January 18, 2011

NTSB Affirms $5,000.00 Civil Penalty Assessment Against Airman Who Failed To Timely Surrender Medical Certificate

In Administrator v. Ashmore, the NTSB denied the airman's appeal of a $5,000.00 civil penalty assessed against him by the FAA for failing to surrender his third-class medical certificate. Initially, the airman was issued a third-class medical certificate even though the airman had reported an alcohol related driver's license suspension approximately six months before the medical certificate was granted. However, the FAA’s Aerospace Medical Certificate Division subsequently requested additional information from the airman to determine his eligibility to hold a medical certificate (e.g. court records from the arrest and suspension, a chemical dependency/substance abuse evaluation etc.). When the airman failed to provide the requested information, the FAA denied the airman’s medical certificate application and requested the airman to surrender his previously issued medical certificate.

After the airman failed to surrender his medical certificate, the FAA served him with a notice of proposed assessment ("NOPA") seeking to assess a civil penalty not to exceed $1,000.00 per day for each day the airman failed to surrender his certificate. The NOPA provided the airman with a ten day grace period within which the airman could still surrender his medical certificate and avoid assessment of the civil penalty. Unfortunately, the airman did not surrender his certificate until 16 days after the grace period expired. The FAA then served the airman with an order assessing a $5,000.00 civil penalty for failing to timely surrender his medical certificate.

The airman appealed the order to the NTSB, but then failed to file a timely answer to the FAA’s complaint. As a result, the Administrative Law Judge ("ALJ") subsequently issued an order entering partial judgment on the pleadings in favor of the FAA and deemed the factual allegations in the FAA's complaint as admitted by the airman. However, the ALJ deferred ruling on the propriety of the civil penalty and provided both parties twenty days to submit written arguments. The ALJ affirmed the civil penalty order, finding that the airman had offered no legitimate reason to mitigate the sanction. He then observed that the assessed civil penalty was at the low end of what the FAA could have sought under the FAA’s Enforcement Sanction Guidance Table (FAA Order 2150.3B), and noted that the "$5,000 civil penalty … in this case thus represents a fraction of the $17,600 maximum assessment that could have been made for that 16-day period, at $1,100 per day."

On appeal to the NTSB, the airman alleged that the ALJ erred in affirming the civil penalty and he requested that the Board "show [him] grace and dismiss the assessment of [the civil penalty]." The Board determined that the civil penalty was at the low end of the scale and was appropriate. It then observed that the FAA "provided respondent with ample opportunity to avoid this result; and respondent repeatedly failed to comply with the Administrator’s requests in a reasonably diligent manner" and "[A]t every turn, respondent failed to respond or act in a timely manner to avoid imposition of this civil penalty."

This is an unfortunate result for the airman. No medical certificate and a $5,000.00 civil penalty to rub salt in the wound. I have to wonder why the airman failed to respond to the FAA and the NTSB. However, regardless of the reason, this case is a good example of why you cannot ignore the FAA. Although $5,000.00 seems harsh for failing to surrender a certificate, I don't doubt that the airman's continuing failure to respond factored into the amount of the civil penalty.

At the end of the day, this airman ended up owing more than he otherwise might have had to pay to have an aviation attorney resolve the case for him. Penny wise and pound foolish? You make the call.

Posted by Greg

January 12, 2011

FAA Relaxes, Slightly, The Prohibition On Company Reimbursement For Part 91 Flights By Certain Officers/Employees

As you may recall, back on July 8, 2010 the FAA published a Proposed Interpretation seeking public comment regarding a proposal to modify the FAA's broad prohibition on pro-rata reimbursement for the cost of owning, operating and maintaining a company aircraft when used for routine personal travel by senior company officials and employees. After receiving comments, and in response to the National Business Aviation Association's ("NBAA") request that the FAA modify its longstanding prohibition, on December 10, 2010 the FAA issued a Modified Interpretation in which it agreed that, under certain circumstances, it would allow "a company to be reimbursed for the personal travel by an individual whose position merits such a high level of interference into his or her travel plans."

What does that mean? Well, for those limited number of employees who are so important to a company that they can be called back to work at any time upon a moment's notice, even during personal travel, then the FAA will consider their travel on the company aircraft as "within the scope of and incidental to the business" of the company operating the aircraft. However, the Modified Interpretation warns that not all personal travel will meet the conditions for reimbursement, such as "when the high-level employee or official may have personal travel plans that are unlikely to be altered or cancelled, even for compelling business reasons." By way of example, and for purposes of guidance, the FAA cites travel for a significant event, such as a wedding or funeral of a close family member, or for necessary or urgent medical treatment, as instances of personal travel that would not likely qualify for reimbursement.

It is important to note that this interpretation applies to reimbursement under FAR 91.501(b)5 which specifically regulates "large airplanes of U.S. registry, turbojet-powered multi-engine civil airplanes of U.S. registry, and fractional ownership program aircraft of U.S. registry that are operating under FAR 91 Subpart K in operations not involving common carriage." However, companies operating other aircraft may be able to take advantage of the regulation under the NBAA's Exemption 7897, as amended. Exemption 7897, or the "Small Aircraft Exemption" as it is called by NBAA, allows NBAA Members to operate small civil airplanes and helicopters of U.S. registry under the operating rules of FARs 91.503 through 91.535.

In order to take advantage of this interpretation, the company will need to make a written determination that the flight in question was of a routine personal nature. The FAA also advises that the company should maintain a list of individuals whose position with the company require him or her to routinely change travel plans within a short time period. The company must then provide that list to the FAA upon request.

With the proper documentation, companies will be able to provide their select few executives with personal travel on the company aircraft and receive reimbursement while still operating under Part 91. Not a big move by the FAA, but certainly a move in the right direction.

Posted by Greg

January 11, 2011

An Airworthiness Certificate Requires More Than Just A Safe Condition

Is a properly maintained and safe aircraft airworthy? Not necessarily, according to a recent National Transportation Safety Board ("NTSB") decision. The aircraft must also meet the technical requirements of its type certificate to be airworthy. For a discussion of the NTSB decision and what makes an aircraft airworthy, please read my latest article here.

Posted by Greg

January 06, 2011

Aircraft Maintenance Records: What You Write Matters

If you repair or perform service on an aircraft, you are responsible for making a record of that work. Depending upon whether you are the aircraft owner or a mechanic, those records could include logbook entries, work cards, estimates, work orders and invoices. Unfortunately, if those records are not prepared carefully, and as required by the FARs, the person making the record could be exposing himself or herself to FAA enforcement action or civil liability.

For a more detailed discussion of this issue, please read my article on the topic here. Or, if you still have questions on the subject after reading the article, feel free to call.

Posted by Greg

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