All Aviation Articles By greg reigel

NTSB Rejects Fatigue As A Defense For Violations Of Federal Aviation Regulations


In a recent FAA enforcement action, Administrator v. Kooistra, the FAA alleged the airman committed a number of operational errors in violation of FARs 91.9(a) (requiring compliance with an aircraft's operating limitations), 91.13(a) (careless and reckless), 91.117(a)91.123(b) (requiring compliance with ATC instructions), and 91.703(a)(3) (requiring a person operating an aircraft of U.S. registry outside the United States to comply with FAR Part 91 to the extent that it is not inconsistent with the applicable regulations of the foreign country where the aircraft is operated). The FAA issued an order suspending the airman's airline transport certificate for 60 days and the airman appealed to the NTSB.

At the hearing before the administrative law judge ("ALJ"), the airman did not deny the operational errors, but rather asserted a number of affirmative defenses including that his violations were justifiable based on the fact that he was suffering from fatigue. At the end of the hearing, the ALJ acknowledged the airman's fatigue defense, but stated "[t]he aspect of fatigue...cannot excuse an Airline Transport rated pilot who at all times must exercise the very highest standard of care, judgment and responsibility which the complete record shows that was not exercised by [the airman]." The ALJ affirmed the FAA's order and the airman then appealed to the full Board.

On appeal, the Board rejected the airman's fatigue defense. It acknowledged "the tremendous effects fatigue may have on virtually all major aspects of a pilot's behavior in the cockpit" and observed that "pilot fatigue has consequently been a noteworthy aviation safety issue in the past year." And although the airman relied upon a FAA Notice of Proposed Rulemaking, Flightcrew Member Duty and Rest Requirements, that describes how fatigue can adversely affect several aspects of a pilot's conduct, the Board observed that the Notice, which is a proposed rule and not yet in effect, "does not state that the FAA's policy is to allow fatigue to serve as an affirmative defense, whereby it excuses regulatory violations." As a result, the Board concluded that the airman had provided "no authority for his proposition that fatigue should serve as an affirmative defense to excuse a pilot of violating operational regulations."

Interesting defense. Unfortunately, the airman didn't have any law to back it up. Certainly fatigue is currently a hot button for the FAA and the industry. But, for now, the onus of regulatory compliance will remain with the airman, regardless of whether he or she is suffering from fatigue. Thus, the airman will need to determine whether he or she is too fatigued to comply with the regulations BEFORE the airman operates an aircraft.
(prohibiting operation of an aircraft below 10,000 feet mean sea level at an indicated airspeed of more than 250 knots),

Can An Aviation Insurer Deny Coverage If You Breach The Terms Of Your Insurance Policy?

If you are in an aircraft accident or you suffer a loss will your aviation insurance policy provide coverage when you need it? That depends.

Aircraft insurance policies have requirements, conditions and provisions with which the insured must comply in order for the policy to provide coverage. These requirements often mandate the condition of the aircraft, qualifications and currency of the pilot and accuracy of the information provided by the insured to the insurance company.

If an accident or loss occurs, and a policy's provision has been breached by the insured, the insurer may have the right to deny coverage. In that situation, the insured could find that he or she is without coverage. But, you may ask, what if the breach of a policy provision is unrelated to or had nothing to do with the accident or loss, will coverage still be denied?

The answer to that question will depend upon the state law applicable to the case. In some states (Florida, Hawaii, Illinois, Iowa, Mississippi, Montana, South Carolina, Texas and Washington) an insurer cannot deny coverage unless the breach was causally related to the accident or loss. In other states (Alaska, Arizona, California, Colorado, Georgia, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, North Carolina, Oregon, Pennsylvania, South Dakota, Tennessee and Virginia) a causal connection between the policy breach and the accident or loss is not required for the insurer to deny coverage. The remaining states have not decided the issue one-way or the other.

If you live in a state that does not require a causal connection between a policy breach and the accident or loss, you need to make sure you comply with all of the provisions and requirements contained in your policy. Failure to comply could very well result in a denial of coverage if you are ever involved in an accident or loss.

If you live in a state in which a causal connection is required between a policy breach and an accident or loss, the insurer will have the burden of proving the existence of a causal connection. That may or may not be easy, depending upon the circumstances.

In either case, you would be fighting for coverage. In the aftermath of an accident or loss, a fight over coverage is the last thing an insured should have to worry about. To avoid these situations and to ensure that you will have coverage when you need it, you need to be aware of and comply with the requirements and conditions of your aviation insurance policy. If you need help understanding your policy, talk with an experienced aviation attorney who can review and explain the terms of your policy. Then you can enjoy the security of the aviation insurance policy for which you are paying your premiums.

NTSB Allows Airmen To Waive Exclusion Of ASAP Report From Enforcement Action


In a recent decision by the NTSB, Administrator v. Austin and McCall, the Board determined that an administrative law judge ("ALJ") should have admitted into evidence two Aviation Safety Action Program ("ASAP") reports offered by two airmen in an enforcement hearing. ASAP programs are governed by FAA Advisory Circular 120-66B and typically provide that an airman flying for an air carrier has the option of submitting a voluntary report concerning an incident. Once submitted, the ASAP event review committee (ERC) may review the report, accept the reporting airman into the ASAP, and the FAA then agrees not to initiate a certificate action against the airman based upon the reported incident. AC 120-66B also specifically provides that an ASAP report may not be used for any purpose in an FAA legal enforcement action, unless the report involves criminal activity, substance abuse, controlled substances, or intentional falsification.

In this case, the airmen wanted to have ASAP reports they submitted admitted into evidence at the hearing. However, the ALJ granted the FAA's motion to exclude the ASAP reports based upon AC 12-66B. The ALJ determined that ASAP reports were not subject to review and that such a review would render ineffectual the memoranda of understanding under which ASAP programs operate. (The elements of an ASAP are set forth in a Memorandum of Understanding (MOU) between the FAA, certificate holder management, and an appropriate third party, such as an employee's labor organization or their representatives). Interestingly, the ALJ also acknowledged that this issue was one of first impression for the Board and that the Board needed to decide the issue before he would review the ASAP reports.

After a hearing, the ALJ affirmed the FAA's orders of suspension against the airmen. One of the airman then appealed the ALJ's decision to the full Board. Not surprisingly, the airman argued, among other things, that the ALJ improperly excluded the ASAP reports.

The Board initially noted that the protection provided by AC 120-66B prohibits the FAA from using ASAP evidence in an enforcement action. However, it then concluded that AC 120-66B "does not prohibit a pilot from waiving this protection to submit his or her own ASAP report into evidence." As a result, the Board remanded the case back to the ALJ for him to review the ASAP reports and to consider whether the airmen's filing of their respective ASAP reports protected one or both of them from FAA enforcement action.

It will be interesting to see how the ALJ rules on remand since the Board simply ruled that the ASAP reports were admissible and should be considered by the ALJ. Unfortunately, the Board didn't provide any guidance on whether the ASAP reports should have precluded the FAA from pursuing enforcement action against the airmen in the first place. I guess we will have to see what the ALJ decides.

Complying With A Manufacturer's "Current" Maintenance Instructions

 

If you own or operate a large airplane (over 12,500 MTOW and to which FAR Part 125 is not applicable), turbojet multiengine airplanes, turbopropeller-powered multiengine airplanes, or turbine-powered rotorcraft, you know that FAR § 91.409(f) requires you 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." In the past, that option had been interpreted to mean that, when a manufacturer updates its maintenance instructions, the aircraft operator is obliged to comply with the new instructions.

That interpretation was questioned when the FAA's Aircraft Maintenance Division requested a legal interpretation from the FAA's Office of Chief Counsel regarding the meaning and application of FAR § 91.409(f)(3). The specific issue that the Chief Counsel was asked to address was: "Whether, if a manufacturer amends its maintenance/inspection instructions, an affected aircraft operator is obliged to comply with the new instructions in order to be in compliance with § 91.409(f)(3)."

The FAA Chief Counsel issued a December 5, 2008 Legal Interpretation addressing this issue. It concluded that an operator is not required to comply with either "current"/"new" maintenance instructions or a "current"/"new" inspection program.

The FAA's Perspective

The Legal Interpretation initially observed that a similar issue had previously been raised, but not answered, regarding whether FAR § 91.9(a), required an operator to comply with a change to an operating limitation in an airplane flight manual if the change had not been made through the notice and comment procedures of 5 U.S.C. 500 et. seq., the Administrative Procedures Act ("APA").  It then concluded that an operator was not obligated to comply for the same reason that an operator is not required to comply with "current", or subsequently issued, changes to maintenance manuals or inspection programs.

According to the Legal Interpretation, "[i]f 'current' in § 91.409(f)(3) and similarly worded regulations could be read to mean an ongoing obligation, manufacturers unilaterally could impose regulatory burdens on individuals through changes to their inspection programs or maintenance manuals. In essence, they would be making rules that members of the public affected by the change would have to follow." However, the FAA does not have the authority to delegate its ability to make rules. Additionally, allowing a manufacturer to issue rules in the form of maintenance instructions or inspection programs, without public notice and comment, would be contrary to the APA.

As a result, the Legal Interpretation concluded that "to comply with § 91.409(f)(3) an operator need only adopt a manufacturer's inspection program that is 'current' as of the time he adopts it, and that program remains 'current' unless the FAA mandates revisions to it." For example, revisions would be required if the FAA issued an applicable airworthiness directive or amended the operating rules applicable to the operator.

Finally, the Legal Interpretation noted that, although not required, operators could, and typically do, incorporate subsequent changes issued by manufacturers. It also suggested that the FAA should initiate a rulemaking change to clarify the meaning of § 91.409(f)(3), and associated regulations, to remove the ambiguity associated with the term "current".

The Litigation Perspective

This Legal Interpretation clarifies that FAR § 91.409(f)(3) does not require compliance with subsequently issued changes to maintenance manuals or inspection programs, absent an airworthiness directive or other regulatory requirement. Thus, from a regulatory perspective, compliance is not mandatory. Yet, simply because the FARs do not specifically require an operator to comply with subsequently issued changes to maintenance manuals or inspection programs, does this mean an aircraft owner or operator can ignore these changes?

We know now that an FAR Part 91 aircraft operator will not invoke the wrath of the FAA if the operator does not comply with subsequently issued changes to maintenance manuals or inspection programs (unless, of course, an airworthiness directive or other regulatory requirement mandates compliance). However, before "current" changes are ignored or rejected, compliance must also be evaluated from a tort perspective in order to accurately assess the risks of non-compliance.

Under tort law, and specifically the law of negligence, we all have a duty to use reasonable care. The standard of care is established by determining what a reasonable person would do under a set of given circumstances. In recent years, plaintiffs in aircraft crash cases have been using subsequently issued changes to maintenance manuals or inspection programs to establish the standard of care with respect to aircraft ownership, operation and maintenance.

Specifically, in a post-aircraft accident scenario, plaintiffs’ experts will scour the aircraft’s logbooks in an attempt to identify subsequently issued changes with which the aircraft owner, operator, or maintenance provider has not complied. They then try and argue a causal connection between that lack of compliance and the aircraft accident.

At trial, the plaintiffs argue that the manufacturer issues the changes because it believes compliance will make the aircraft or its components safer and that compliance with the "current" change's recommendations, issued by the manufacturer who should know best, establishes the duty owed by the aircraft owner, operator or maintenance provider. They will direct attention to the “mandatory” nature of the issued changes, so designated by the manufacturer. Plaintiffs will also argue that deferred or rejected compliance improperly placed financial savings over safety.

In response, the defense will argue that the aircraft is still safe without compliance with the changes, pointing out that the changes are not issued by the agency responsible for safety and certification of aircraft and aircraft components. After all, unless the FAA has issued an airworthiness directive based upon the manufacturer's changes or otherwise mandated compliance under some other operating rule; the FAA apparently does not deem the manufacturer’s recommendations to be necessary or mandatory to protect the public’s interest in aviation safety. So why should the aircraft owner, operator, or maintenance provider comply when the FAA doesn't think it is necessary or mandatory? And why should the owner or operator spend additional money for parts or maintenance that may or may not actually make the aircraft safer?

All of these arguments are made to, and allowed by, the courts, in spite of the fact that compliance with the subsequently issued changes is not mandated by FAR § 91.409(f)(3). Additionally, juries have heard evidence regarding the absence of compliance and returned verdicts in favor of plaintiffs based upon that evidence. The higher standard of care argued in the tort context has yet to be pre-empted by the regulatory standard of care established by the FARs.

What Should You Do?

So how should an aircraft owner or operator deal with subsequently issued changes to maintenance instructions or an inspection program? First, you will need to be aware of applicable changes to the manufacturer's maintenance instructions or inspection program and to discuss the information with the aircraft owner and/or operator. This means making sure that you are aware of all applicable changes issued by the manufacturer.

Next, you need to specifically identify, in writing, the maintenance instructions or inspection program that have been adopted for your aircraft: Is it current as of the date the aircraft's type certificate was issued or is it current as of some later date? Unfortunately, the Legal Interpretation doesn't provide any guidance in this regard. This is necessary to later prove the version of instructions or program with which you complied.

Conclusion

The Legal Interpretation appears to raise more questions than it answers. And, unfortunately, these questions will only be answered by further legal interpretations or by changes to the regulations. In the meantime, you need to be aware of the regulatory requirements of compliance, to the extent that it is possible given the existing confusion. You will also need to understand the costs and benefits of compliance from a tort perspective. Only then can you make an informed decision as to how the regulations apply and what you should do with "current" maintenance instructions.

What You Need To Know About FAA Civil Penalty Actions


In recent months we have seen the Federal Aviation Administration ("FAA") aggressively pursuing civil penalty actions against various air carriers and maintenance facilities. In some instances the penalties proposed by the FAA have been millions of dollars. And although the media has a field day each time the FAA announces proposed civil penalties, we usually don't hear anything else about the case until it is resolved with a civil penalty actually assessed against the targeted air carrier or maintenance facility. If the proposed penalty is withdrawn or if the air carrier or maintenance facility beats the charges, we rarely hear anything at all.

In this article I would like to fill in that gap in time by providing you with an overview of the processes and procedures that occur from the time the FAA proposes a civil penalty until the case is resolved.

The Civil Penalty Action


When the FAA believes a certificate holder (whether an airman, air carrier, repair station or otherwise), it may pursue enforcement action against the offending party. The action can be against the party's certificate, also known as a "Certificate Action." In this situation the FAA seeks to suspend or revoke the party's certificate. Alternatively, the FAA could seek to impose a civil penalty or fine against the party, also known as a "Civil Penalty Action."

Civil Penalty Actions are typically used against companies or entities, as opposed to individuals, that hold FAA certificates. However, the FAA will often bring a civil penalty action against an individual to avoid the six month limitation of the NTSB's stale complaint rule in a certificate action, and benefit from the longer 2 year limitation applicable to civil penalty actions. Thus, if the FAA fails to initiate a certificate action within six months of discovering an alleged violation, it will resort to a civil penalty action which allows the FAA 2 years within which to initiate the action.

The FAA determines the amount of the civil penalty using the Sanction Guidance Table in FAA Order 2150.3B, Appendix B, which provides ranges for civil penalties based upon the type and size of the certificate holder, the type of alleged violation and the number of alleged violations. If the amount of the proposed civil penalty is less than $50,000, then the FAA handles the action. However, if the proposed civil penalty is more than $50,000, then the United States Attorney's office handles prosecution of the action. (For purposes of this article we will assume a case is being handled by the FAA).

A Civil Penalty Action is initiated when the FAA serves the certificate holder with a "Notice of Proposed Civil Penalty (the "Notice"). The Notice recites the relevant facts (usually discovered by the FAA during an investigation, inspection or audit), the regulations the FAA believes the certificate holder has violated and the proposed civil penalty.

Options for Responding to the Notice


The Notice is accompanied by an explanation of options for responding to the Notice. The certificate holder has the choice of the following seven options:

  1. Pay the penalty as proposed by the FAA;

  2. Submit written information and evidence demonstrating that a violation of the regulations was not committed or that; if it was, the facts and circumstances do not warrant the proposed civil penalty. The FAA will then consider this information in determining whether a civil penalty should be assessed and the amount of any such civil penalty;

  3. Submit written information and records indicating that the certificate holder is financially unable to pay the proposed civil penalty, or showing that payment of the proposed penalty would put the certificate holder out of business;

  4. Request that a civil penalty be assessed in a specific amount less than that proposed in the Notice, or that no civil penalty be assessed and provide the reasons and support for the requested reduction. The FAA will then consider this information when it determines whether the reduced amount should be assessed. If the FAA accepts the reduced amount that constitutes the certificate holder's agreement that an Order Assessing Civil Penalty in that amount may be issued and the certificate holder waives its right to a hearing regarding the civil penalty;

  5. Request an informal conference during which the certificate holder can discuss the matter with an FAA attorney and present any information the certificate holder might otherwise have wanted to provide under options 1-4;

  6. Request that the FAA impose a civil penalty without making findings of violations, providing reasons and any supporting documentation along with the request. If the FAA accepts the request, that constitutes the certificate holder's agreement that a Compromise Order in that amount may be issued and the certificate holder waives its rights to a hearing; or

  7. Request a formal evidentiary hearing before a Department of Transportation administrative law judge ("ALJ") at which the ALJ will decide issues of fact and law and will determine whether, and in what amount, a civil penalty will be assessed against the certificate holder.

The certificate holder must respond to the FAA with one of the seven options within 30 days after receiving the Notice. If the certificate holder selects any option other than option 7 and the case settles, either the case will be dismissed, which doesn't happen very often, or an order for a reduced civil penalty will be issued, which happens frequently. If the latter, then the certificate holder simply pays the penalty and the case is closed. If the case does not settle, or if the certificate holder elects option 7, then a hearing is held before an ALJ.

The Evidentiary Hearing


Prior to the hearing, the FAA issues a complaint that contains the same factual and regulatory allegations contained in the Notice. The certificate holder then submits an answer specifically admitting or denying the allegations contained in the FAA's complaint.

The certificate holder and FAA may also engage in discovery before the hearing. Discovery allows each party to ask the other to identify witnesses and produce evidence that will be introduced at the hearing and also provides an opportunity to depose witnesses. Through discovery, the certificate holder should be able to ascertain all of the facts and evidence upon which the FAA will be relying when it presents its case to the ALJ.

At the hearing, the FAA has the burden of proving its allegations by a preponderance of reliable, probative and substantial evidence. The FAA will present witness testimony and evidence and the certificate holder has the opportunity to cross-examine the FAA's witnesses and to present witnesses and evidence on its own behalf. At the end of the hearing, the ALJ will issue a decision regarding whether a civil penalty is supported by the facts and law, and if it is, the appropriate amount.

Appeal


If either the certificate holder or the FAA is unhappy with the ALJ's decision, that party may file a notice of appeal with the "FAA administrator." Yes, the same administrator responsible for the FAA. To make matters worse, the FAA Chief Counsel's office, which also prosecutes civil penalty cases, writes the decisions for the FAA administrator. If you are thinking this, at a minimum, appears unfair and biased, you are not alone. However, such is the system established by the current regulations.

The regulations require that the FAA administrator review the record, the briefs on appeal, and the oral argument, if any, and then issue the final decision and order of the FAA administrator on appeal. The FAA administrator may (1) affirm, modify, or reverse the initial decision of the ALJ; (2) make any necessary findings; or (3) remand the case for any proceedings that the FAA administrator determines may be necessary. If either party is unsatisfied with the FAA administrator's decision, that decision can be appealed to the United States Court of Appeals pursuant to a petition for review.

Conclusion


As you can see, a lot can happen after the FAA proposes a civil penalty against a certificate holder. Knowing the process and the options available, along with the assistance of an aviation attorney, can help you respond and successfully resolve an FAA civil penalty action.

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