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November 16, 2011

Must An Aircraft Provided By A Student For Instruction Have A 100-Hour Inspection?

This was the question posed, and answered, in a November 10, 2011 FAA Legal Interpretation. As you may know, FAR 91.409(a) precludes operation of an aircraft unless it has had an annual inspection under FAR Part 43 within the preceding 12 calendar months. However, if a flight instructor is going to give flight instruction for hire in an aircraft he or she provides, then FAR 91.409(b) requires that the aircraft must have had an annual or 100-hour inspection under FAR Part 43 within the preceding 100 hours of time in service. Although FAR 91.409(c) lists four exceptions to these maintenance requirements, they were not applicable in the context of the question presented to the FAA.

The Legal Interpretation stated that "the 100-hour inspection requirement applies when the instructor provides both flight instruction for hire and the aircraft used for instruction." If the person receiving the instruction provides the aircraft, then the aircraft only needs to have had an annual inspection under FAR 91.409(a). The FAA went on to note that "the person receiving instruction could provide an aircraft he or she owns or an aircraft he or she leases," but "if the person receiving instruction does not own the aircraft, the FAA may review the manner by which that person provided the aircraft to ensure the instructor, or an entity represented by the instructor, did not effectively provide the aircraft."

Once again, it is important to note that the FAA will investigate the substance of a transaction, rather than simply relying upon the form or documents and it will make a determination based upon the unique facts and circumstances of each case. The bottom line is that the student needs to obtain the aircraft under circumstances that don't include the involvement or control of the instructor. Only then would the 100-hour inspection requirement not be applicable.

Posted by Greg

November 03, 2011

NTSB Stands By ALJ Reduction Of Sanction Against A Mechanic Despite FAA Request For Reconsideration

In Administrator v. Akers the FAA pursued an action against a mechanic for violation of FARs 43.13(a) and (b), and 43.15(a)(1). The FAA alleged that the mechanic performed an annual inspection on a Beech Model A23-24 aircraft and returned the aircraft to service when it was not in an airworthy condition. The FAA sought a 240-day suspension based on three instances of non-compliance with relevant ADs, and two instances of separate discrepancies.

Although the mechanic appealed the order, he failed to answer the FAA's complaint. As a result, the Administrative Law Judge ("ALJ") granted the FAA's motion for judgment on the pleadings based upon the mechanics' failure to submit an answer. The ALJ also reduced the sanction from a suspension period of 240 days to 180 days, relying upon previous cases in which the Board imposed suspension periods of less than the period sought by the FAA and his belief that the sanction for each violation should not be compounded per FAA Order 2150.3B, Ch. 7. Both the mechanic and the FAA appealed the ALJ's decision, but the Board rejected the appeals and affirmed the ALJ's order. However, the FAA then asked the Board to reconsider its decision to affirm the ALJ's reduction of sanction, alleging that the ALJ incorrectly computed the sanction to find 180 days’ suspension based upon three violations when, according to the FAA, five violations were proved.

The Board initially noted that "Section 821.50(c) of our Rules of Practice requires that petitions for reconsideration 'state briefly and specifically the matters of record alleged to have been erroneously decided, and the ground or grounds relied upon.'" It then observed that the FAA's petition did not raise any new matters and contained argument that the FAA should have made in its reply brief. However, he Board then stated that it would address the FAA's issues "in the interest of ensuring that our decision on this reconsideration request is clear."

With respect to the FAA's contention that the ALJ miscalculated the number of violations, the Board observed that the FAA failed to raise the argument in its appeal and provided no justification for why the issue should be considered new matter, as required by Section 821.50(c), when it was clearly available to the FAA at the time of appeal. The Board then concluded that the ALJ's computation of 180 days for the mechanic’s violations was appropriate.

In response to the FAA's argument that the Board had to defer to the FAA's choice of sanction, the Board responded that its "deference is not blind" and that "if the Administrator seeks to show the seriousness of respondent’s conduct justifies the compounding of sanctions pursuant to the language of the Administrator’s own Sanction Guidance Table, we would expect the Administrator to argue certain aggravating factors existed." It then concluded that the ALJ was correct in his determination that the FAA "interpreted the language in the Sanction Guidance Table in an arbitrary and capricious manner."

It is nice to see the Board actually holding the FAA accountable rather than creating some contorted analysis (aka bad law or confusing precedent) to try and save the FAA from its own shortcomings in a case. This case also highlights the fact that the FAA has to prove both liability and sanction in an enforcement action. In cases where liability is clear or undisputed, an airman may still be able to argue a reduction in the sanction sought by the FAA.

Posted by Greg

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