Sarah Nilsson, JD, PhD, MAS
Sarah Nilsson, JD, PhD, MAS

AS 405 - Part A

AS 405 PRC Syllabus Summer17.docx
Microsoft Word document [75.0 KB]

The Spring 2015 students music on Soundcloud

The Fall 2015 students music on Soundcloud

The Spring 2016 students music on Soundcloud

The Fall 2016 students music on Soundcloud

The Spring 2017 students music on Soundcloud

 

AS 405_alignment of learning outcomes.xl[...]
Microsoft Excel sheet [13.2 KB]

Regulatory Agencies & International Organizations

FAA - Federal Aviation Administration

 

FARs - Federal Aviation Regulations - more appropriately - CFRs - Code of Federal Regulations

 

The Federal Aviation Administration is the national authority on civil aviation in the United States. Created in 1958, the FAA became a part of the Department of Transportation in 1966.

The FAA serves 9 major functions:

 

1. Regulation: The FAA is responsible for the regulation of aviation safety, airspace use, aircraft noise and suborbital spacecraft through laws, both created and enforced by the FAA called Federal Aviation Regulations. Additionally, the FAA may issue mandatory orders through an Airworthiness Directive (AD). An AD is designed to improve safety by changing the design or fabrication of an aircraft or aircraft component.

 

2. Certification: The FAA issues certifications for every person or business involved in civil aviation. Pilots, mechanics, air traffic controllers and even parachute riggers must be trained and evaluated in accordance with established guidelines found in the FARs. The FAA also certifies operations such as repair stations, flight schools and air carriers. Lastly, the FAA is the approval authority for aircraft and component design through the issuance of various type certificates.

 

3. Registration: All civil aircraft in the United States are required to be registered through the FAA. The FAA will issue the aircraft an “N-number” which serves the same purpose as a license plate. The FAA maintains files on every aircraft to ever be issued a registration number. The files contain information including a history of ownership as well as liens and encumbrances against the aircraft. One is also required register with the FAA, certain components, such as engines and propellers.

 

4. Security: Despite the FAA’s air carrier security function being transferred to the TSA through the Aviation and Transportation Security Act, the FAA maintains a strong presence in air security, when called upon congress to change existing protocols or explore new ones. After the attacks of Sept. 11, Congress directed the FAA to strengthen cockpit doors, change entry and exit policies to the flight deck and create training programs for flight crews for future threats. The FAA has also been ordered to explored concepts to monitor the cabin through video surveillance and prevent tampering of the transponder.

 

5. Cartography: The responsibility of producing the nation’s aeronautical charts has been transferred from the Department of Commerce’s National Ocean Service (NOS) to the FAA. Over 300 cartography professionals have been relocated to the Aeronautical Products Department (Aeronav) more recently called Aeronautical Information Services (AIS).

 

6. Education: The FAA provides several education services for the aviation industry, including periodic safety seminars and recertification programs for both pilot and mechanic examiners and instructors. The FAA also conducts its own in house training for its employees, mostly taking place at the FAA Academy in Oklahoma City, OK. The most beneficial educational function the FAA provides is the publication of Advisory Circulars, which translate the FARs into common language.

 

7. Funding: Through the proceeds of aviation fuel taxes on general aviation and passenger ticket taxes on US commercial flights, the FAA is able to give matching funds for the construction of new airports and the repair and improvement of existing airports. The amount of funding the taxes have yielded is currently valued at 15 billion dollars, expended at a rate of 3 billion dollars a year.

 

8. Investigation: The FAA is charged with investigating nearly all civil aviation accidents and incidents occurring in the US, and some international accidents that involved US built aircraft. The FAA is not responsible for determining the cause of the accident. That is the responsibility of the National Transportation Safety Board. The FAA is able to combine its investigation of accidents and incidents with enforcement of violations of the FAR.

 

9. Operations: The FAA has a vast network of operations to oversee all facets of civil aviation in the United States. This network includes, but is not limited to:

- The Air Traffic Control System,

- Navaids,

- The Mike Monroney Aeronautical Center and

- The William J. Hughes Technical Center.

Through this network the FAA is able to conduct experimentation on new flight concepts, maintain records on personnel and equipment, provide a guiding system of beacons for aerial navigation and safely process air traffic in and around the nations’ airports.

 

FRCP - Federal Rules of Civil Procedure

 

ADs - Airworthiness Directives

 

ACs - Advisory Circulars

 

ICAO - International Civil Aviation Organization

WWII proved advancement and potential of air transportation

Leaders around the world realized the ease which air transportation can affect international trade

Today ICAO sets standards for international travel and transportation of goods in the interest of safety and economic trades

Established “freedoms of the air”

 

IATA - International Air Transport Association

IATA was originally set up to regulate routes, rates and capacities for international travel which was found to be against anti-trust laws

Today IATA connects international airlines with travel agencies and acts as a clearinghouse to settle international debts 

 

TSA - Transport Security Administration

- Created in 2001 under the Aviation and Transportation Security Act

- Moved from DoT to DHS after DHS was created

- Responsible for inspecting and testing airport security measures

- Develops plans, policies, and strategies for transportation security threats and coordinates counter measures with other federal agencies

- Maintains the “No Fly” (suspected terrorists) and “Selectee” (additional security scrutiny) lists

Technology

Advanced Imaging Technology (full body scan)

Biometrics (fingerprints and retinal scans)

Bottled Liquid Scanners (for liquids more than 3.4 oz.)

Explosives Detection System (for checked baggage)

Explosives Trace System (swab for traces of explosives)

Liquid restrictions

Liquid explosive plot in August 2006

Temporarily and effectively banned passengers from bringing their own liquids, aerosols, and gels onto commercial aircraft.

Soon determined that small amounts of liquids posed no threat (no greater than 3.4 oz.)

Federal Air Marshal Service

Supervised by TSA

Deploys marshals on U.S. aircraft and in airports worldwide for protection, detection, response, and assessment

Maintains TSA preparedness

Trains and manages armed pilots

Trains TSA canine assets

 

DOT - Department of Transportation

- Houses a variety of federal agencies dealing with policy and regulation of various means of transportation of people and goods

- Issues foreign air carrier permits to foreign airlines by their nations to provide service to the US pursuant to treaty

- Consults with State Dept. in the approval process

Permit issuance requires Presidential approval

President may disapprove a specific foreign carrier only for foreign relations or national security reasons

 

DHS - Department of Homeland Security

- Largest of the federal departments

- Includes 24 federal agencies

- Protects the nation against further terrorist attacks and responds to natural disasters

- Screens foreign students for flight schools, limited to aircraft of maximum gross takeoff weight of 12,500lbs or greater and must act on them within five days

 

TSOB - Transportation Security Oversight Board

- Created in 2001 under the Aviation and Transportation Security Act

- Composed of the Secretaries of Homeland Security, Transportation, Defense, and Treasury; Attorney General, and CIA Director, along with a Presidential appointee representing the National Security Council

- Responsible for assuring the coordination and sharing of intelligence relating to threats against transportation

 

AIR TRANSPORTATION SAFETY & SYSTEM STABILIZATION ACT

9.11.2001

- First foreign attack on American soil since Pearl Harbor

- Approximately 3,000 casualties

- World Trade Center: both towers destroyed by hijacked airliners

- Pentagon: airliner crashed into the Pentagon

- Shanksville, PA: hijacked airliner plummeted to the ground, no survivors

Domestic Unrest

- The attack was absolutely shocking to the American public

- Unprecedented act of terrorism through the use of commercial aviation

- Led to questions of airport security: could this have been prevented?

- Devastating loss of an American symbol as well as many lives

- The public and the U.S. government demanded immediate action

Signed into Action

- In response to the rage and widespread outcry, Congress acted quickly in drafting and passing this act

- On 9.12.2001, the Air Transportation Safety and System Stabilization Act (ATSSSA) was created

- This act was passed within 2 months - amazingly fast when compared to standard bills and acts

Intentions of ATSSSA

- Replace the private contractors in charge of security with airport employees

- Increase security as it pertains to all modes of transportation

- Restructure the government to provide for a layered security approach: have individual agencies responsible for specific aspects of safety to identify threats quickly and efficiently

Implementation of ATSSSA

- Created the Transportation Security Administration (TSA)

- Initially under the Dept. of Transportation but later moved to the Dept. of Homeland Security

- Gave the TSA authority to regulated security procedures at airports: Responsibilities include: checking and weighing baggage, reviewing passengers and supervising the check process

These employees were contractors that got rehired for the same job

- Developed a compensation program for victims of the attack

- Under DHS

- Started Transportation Security Oversight Board (TSOB)

Composed of seven members from various branches of the government

Meant to have security info shared across entities

Meant to stop security threats early

Make regulations that contribute to transportation safety

Compensation

- Between 2001 and 2003 accepted loan guarantees for a total of $1.179 billion seven different carriers

- Created Victims Compensation Fund for litigations related to the attack

- Also created fund for the victims of 9/11

- Tax Deferment

Core strengths and weaknesses of ATSSSA

- Private to Public Oversight for security issues

- Improved Aviation Security: standardized the checking process

- Proved Government’s investment in preventing future acts of Terrorism

- Some Airlines went bankrupt-not all airlines got loan guarantees

- Reaction to new invasive security checks by TSA: e.g. public outrage to full-body scanners

- General distaste for air-travel due to increased security

 

DOC - Department of Commerce

 

FAA - Aeronautical Information Services Groups

NOS - National Ocean Service

 

AIP - Airport Improvement Program

 

NTSB - National Transportation Safety Board

- Primary responsibility is to investigate transportation accidents, determine the “probable cause” of the accident, and recommend to the appropriate agencies, measures that might prevent similar accidents in the future

- One of the smallest federal agencies (about 300 employees)

- Responsible for coordinating and integrating the resources of the federal government and other organizations to support the efforts of state and local governments and the airline to meet the needs of airline disaster victims and their families

- Serves as 1st and 2nd levels of appeal for FAA enforcement action

 

CAMI - Civil Aviation Medical Institute

 

NASA - National Aeronautics and Space Administration

- NASA’s general aviation research focuses

  • Propulsion, noise and emissions improvements to reduce environmental impacts
  • New flight deck displays to improve safety
  • Advanced metals and composites for general aviation applications
  • Aerodynamic improvements to increase aircraft speed, capacity, and fuel efficiency

- Administers the confidential Aviation Safety Reporting Program

- NASA R&D led to the super critical airfoil, now in use on high-performance aircraft, and the “Whitcomb winglet”

 

CAB - Civil Aeronautics Board

 

ATSB - Air Transportation Stabilization Board

- Composed of the Sec. of Transportation, Chairman of the Board of Governors of the Federal Reserve System, Sec. of Treasury, and Comptroller General of the US

- Created from the Air Transportation Safety and System Act (2001)

- Compensates victims of attacks for their losses and to aid the recovery of US airlines from the financial consequences of the attacks

 

NMB - National Mediation Board

- Supervises union efforts to organize workers, elections, and conducts the compulsory mediation procedures the RLA requires as a mandatory step toward resolving major labor-management disputes within the airline industry

 

NLRB - National Labor Relations Board

- Regulates all labor-management relations in all US industries except the airlines and railroads

- Supervises union organizing efforts and elections, and rules on unfair labor practice claims in the aerospace manufacturing industry and general aviation, except general aviation operators conducting common carrier operations (on-demand charters and emergency medical air transportation)

 

FTC - Federal Trade Commission

 

DOJ - Department of Justice

 

CBP - Customs and Border Protection

Mission:

Detect, interdict, and prevent acts of terrorism and the unlawful movement of people, illegal drugs and other contraband toward or across the boarders of the United States.

Formed in 2005 to consolidate several law enforcement aviation programs

Two divisions:

Air and Marine

Worlds largest civilian law enforcement aviation program

700 pilots

Operate 272 aircrafts

 

OSHA - Occupational Safety and Health Administration

 

AOPA - Aircraft Owners and Pilots Association

 

The State Department

 

William J. Hughes Technical Center

 

Adminstrative Procedures Act

 

ICAO Chicago Convention 1944.pdf
Adobe Acrobat document [2.1 MB]
ICAO abbreviations and codes.pdf
Adobe Acrobat document [432.4 KB]

OPEN SKIES

 

Definition

- Open skies is a call for a loosening or removal of the rules and regulations of the international aviation industry

- The Open Skies Agreement aims to create a free-market environment for the airline industry

- By creating such an agreement, the two countries working together aim to minimize government intervention in regards to passenger transportation

 

How to enact

- To initiate an open skies agreement, countries must enact a bilateral air transport agreement.

- This agreement is a contract to liberalize aviation services between two countries

- This allows airlines of both countries to send off commercial flights that cover the transport of passengers and cargoes of both countries.

 

Bilateral versus Multilateral Air Transport Agreements

- In a bilateral agreement, the countries in agreement will allow the airlines of each country to bring passengers to a third country or pick up passengers from the host country to the home country of the airline or to a third country in which the contracting states has existing open skies agreement

- A multilateral air services agreement is the same as a bilateral one, but it involves three or more countries

 

The Origin of Open Skies

- Since the beginning of conquered lands, the quest for true sovereignty has been well sought after.

- To truly obtain it, land, sea, and air boundaries must be set, and anyone who crosses them will be considered a trespasser.

- Throughout history, many planes were shot down, ships sunk, and land vehicles demobilized, to prevent “invasion,” whether it was intentional or not.

- As international competition grew to be conducting the most major airline, countries began to have growing nationalism.

- As many airlines were either fully or partially owned by different countries governments, the need for resolution was upon the world.

- As tensions grew, a solution came about: the Open Skies Agreements.

 

Common Open Skies Provisions

Most of the existing agreements include the following:

- No restrictions on international route rights, number of airlines, capacity, frequencies, and types of aircraft

- A fare can be discontinued only if both governments can come to agreement

- Designated airlines may enter into leasing agreements with airlines of either country, or with those of third countries.

- Model text includes procedures for resolving differences that arise under the created agreement

- Air carriers may choose to operate under the charter regulations of either country

- Each government agrees to observe high standards of aviation safety and security, and to offer assistance when needed

- Allow an airline of one country to operate all-cargo services between the other country and a third country, via flights that are not linked to its homeland.

 

Recent United States Open Skies Agreements

- In 1992, a huge step was taken when the Netherlands signed the first open skies agreement with the United States, immediately creating precedent and standards for other countries.

- Prior to this agreement, each country had a limit to how many times they could land in another country, at a fixed location

- In 2001, the USA signed a multilateral agreement with Brunei, Chile, New Zealand, and Singapore.

 

Open Skies Agreements Today

Green lines represent the different flight paths of airlines throughout the world

THE NINE FREEDOMS

 

1. The right granted by one state to another state or states to fly across its territory without landing

 

2. The right granted by one state to another state or states to land in its territory for non-traffic purposes

 

3. The right, in respect of scheduled international air services, granted by one state to another state to take on, in the territory of the first state, traffic destined for the home state of the carrier

 

4. The right, granted by one State to another State to take on, in the territory of the first State, traffic destined for the home State of the carrier

 

5. The right granted by one State to another state to put down and to take on, in the territory of the first State, traffic coming from or destined to a third State

 

6. The right of transporting, via the home State of the carrier, traffic moving between two other states

The 6th Freedom is not incorporated into widely recognized air service agreements

 

7. The right granted by one State to another State, of transporting traffic between the territory of the granting State and any third State with no requirement to include on such operation any point in the territory of the recipient state

 

8. The right of transporting cabotage traffic between two points in the territory of the granting State on a service which originates or terminates in the home country of the foreign carrier, outside the territory of the granting state.

Also known as “consecutive cabotage”

 

9. The right of transporting cabotage traffic of the granting State on a service performed entirely within the territory of the granting state. 

Also known as “Stand alone cabotage”

 

CABOTAGE

 

Cabotage is defined as a non-remunerated not-for-hire flight between two points within a foreign country, carrying residents whose travel begins and ends in that country.

The overall purposes of cabotage rules are to prohibit foreign aircraft from one country traveling into another country and picking up foreign nationals or citizens of the other foreign country and providing transportation to and between points within that foreign country.

It does not matter if the aircraft is flying for hire or not for hire, either situation is generally not allowed. 

Cabotage in the traditional sense, i.e. for hire, is almost universally prohibited.

Different countries have varying rules on cabotage, some allow it and others restrict it.

Although cabotage rules are different in various countries and usually incorporate the term "for hire," some countries do not allow even non-revenue passengers to be carried by a foreign aircraft within their boundaries. 

In the United States any required exemption for approval of any foreign carrier or aircraft, (private, corporate or other), such approval is issued by the U.S. Department of Transportation under 49 U.S.C. 49109(g).

While the DOT can issue exemptions it is important to note, “Rights to such traffic are usually entirely denied or severely restricted.”

 

AOPA article on Cabotage

NextGen

 

In a multi-billion dollar collaborative effort between the FAA and NASA’s Airspace Operations and Safety Program, the Next Generation Air Transportation System will make air travel much safer, more flexible, and efficient.

System Priorities

- Multiple Runway Operations

With updated standards, improved technologies, safety analysis and modifications with the air traffic monitoring system’s procedures will enable better runway access.

- Data Communication

Much like the FMS systems in use today, there will be less cockpit to controller audio messages. Using what is similar to texting, controllers can deliver clearances, coordinates, and commands

- Performance Based Navigation

To improve access and flexibility point-to-point, by finding ways to leverage upcoming navigation technologies, such as satellite-based Area Navigation and Required Navigation Performance.

- Surface Operations and Data Sharing

Most of the enhancements in this category, focus on increasing surface efficiency through animation as well surface surveillance to increase predictability and provide measurable and actionable improvements. 

Localizer-Like Precision with Vertical Guidance (LPV)

- LPV infrastructure has been introduced to 1,686 airports

- 3,424 new LPV approaches nationwide

- Allows instrument pilots safe access to more airports in less than visual conditions

Automatic Dependent Surveillance-Broadcast (ADS-B)

- In preparation for NextGen, 634 new ADS-B ground stations have been erected nationwide

- Provides aircraft with traffic and weather information

- Increases safety due to better situational awareness in the cockpit

 

NextGen: Tactical Air Traffic Management

Super-Density Operations

The Aviation Systems Division identifies 3 specific uses of TATM:

1. Increasing Capacity using closely spaced approaches.

2.  Maximizing the arrival rate by closely monitoring the spacing of aircraft during final approach.

3. Integrating departures and arrivals to fully utilize all runways

High Density En-Route Operations

The En-Route airspace is structured differently compared to Super-Density Airspace.

NextGen will focus on the use of Tactical Air Traffic Management automation in the aircraft and ground-based Air Navigation Service Provider system.

This system will provide conflict detection in the presence of uncertainty, and robust automated resolution logic. NASA is identifying innovative methods for using automation to enable separation assurance in the presence of a three times growth in traffic over the next few years.

In a similar manner, research is being conducted to identify technologies and procedures that would allow user preferred routing under certain traffic conditions.

For example, while on a flight and a pilot wishes to change the course and altitude because of turbulence or another non-planned event, the controller will be able to allow that if the system does not detect conflict with other traffic.

 

NextGen Weather Processor (NWP)

The NWP is the fully automated weather system, which will ID hazards en route and translate specific weather information relevant to flight operations up to eight hours in advance.

The new system will give controllers a smoother use of the airspace and be able to reduce delays.

Additionally, the system will give a current weather picture and will enable flights to be processed accordingly as specific weather conditions are known or predicted.

 

Aviation Weather Display

The new display is part of the NextGen Weather Processor (NWP).

It is a combination of multiple older weather products (Weather & Radar Processor, Integrated Terminal Weather System, Corridor Integrated Weather System) and will now allow for a more streamlined system.

With this new system, icing and turbulence products will be integrated with relevant radar data.

These changes create a new weather display that can be used “at a glance” for both terminal or en route users.

Future of Next Gen – ADS-B

Today

- As of 2014, 634 ADS-B ground stations completed nationwide

- Integrated into 22 of 24 en-route ATC facilities

- Airport Surface Detection System-Model X allows ATC to track surface movement of aircraft and ground vehicles

Future of ADS-B

- In 2016, the FAA plans to install three ADS-B ground stations in Mexico, improving coverage over the Gulf of Mexico

- The new stations would allow 5 NM aircraft separation compared to the current 100 NM requirement

- Implementation of new capability called In-Trail Procedures allowing for aircraft to safely climb or descend with separation reduced to 15 NM

 

Future of Next Gen – Data Comm

Today

- Data Comm allows controllers to send digital messages to pilots in the cockpit and allows the pilots to acknowledge the message

- Prototype Data Comm equipment used to provide pre-departure clearances as ongoing trials at Memphis and Newark Airports

- August 2015, the FAA achieved Initial Operating Capability for controller-pilot data link communications for tower services at Salt Lake City.

Future of Data Comm

- The FAA and the industry advisory group agreed to deploy Data Comm to towers at 56 airports by the end of calendar year 2016

- The FAA is encouraging the airline industry to equip additional Data Comm on flight decks

- The FAA is beginning the second phase, which will link aircraft in flight with 20 air route traffic control centers in the continental US by 2021, which will allow for airborne reroutes.

FAA Enforcement

As of September 3, 2015, policy on non-enforcement responses to deviations is now the responsibility of FAA program offices. 

Except as described in the FAA’s Compliance Philosophy or as required by law and specific program commitments, where older AFS policy conflicts with the new Compliance Philosophy this newer policy shall be followed until the older policy is revised. 

The use of Compliance Action should be considered the initial means of addressing all alleged, suspected, or identified instances of noncompliance with a rule or deviations from standards or procedures until a determination is made that Compliance Action is not appropriate.

If a deviation does not involve intentional, reckless or criminal behavior and the airman/organization is qualified and willing to cooperate, AFS will resolve the issue through use of compliance tools, techniques, concepts, and programs.

Compliance Action is a new term to describe the FAA’s collection of non-enforcement methods to correct unintentional deviations or noncompliance that arise from factors such as flawed systems and procedures, simple mistakes, lack of understanding, or diminished skills. It involves open and transparent safety information sharing between the FAA and airmen/organizations. Its purpose is to restore compliance and to identify and correct any underlying cause(s) that led to the deviation.

AFS personnel may use Compliance Action to engage regulated persons to adopt practices of a non-regulatory nature by making recommendations and suggestions to improve their operations. These recommendations must always be prominently identified as non-regulatory.

Legal Enforcement is an appropriate tool to address unacceptable behavior and negative safety performance.

AFS personnel will no longer use the Enforcement Decision Process (EDP) to determine the action to take for noncompliance with regulatory standards.

Compliance, Administrative and Legal Enforcement Action decisions are focused on observable airman/organization behaviors.

 

Program Tracking and Reporting Subsystem (PTRS) activity numbers formerly labeled, as “Informal Action” will be deactivated effective October 1, 2015.

Some PTRS activity numbers have been renamed, and some new ones have been created, to document Compliance Actions.

Related changes to the PBR notification and PTRS-SAS documentation

Remedial training process removed from FAA Order 2150.3

FAA Order 8900.1 Volume 14 has been revised and restructured

  • Chapter 1 – Flight Standards Service (AFS) Compliance Policy
  • Chapter 2 – Investigation and Enforcement Related Tasks
  • Chapter 3 – Special Considerations

 

New 8900.1 Vol. 14 C1, S1 and S2

 

Purpose and Scope

 

Section 1: Introduces the use of AFS Compliance Action to address, when appropriate, safety concerns and actual or apparent deviations from regulations or standards discovered during inspections or surveillance.  

Effective October 1, 2015, the philosophy and policy instructions in Notice 8900.COMPL and revised Volume 14, should be routinely applied to all AFS interactions with airmen and entities, and to all AFS investigatory processes, including the procedures found in Volume 7 of FAA Order 8900.1

Except as described in the FAA’s Compliance Philosophy or as required by law and specific program commitments, where older AFS policy conflicts with the new Compliance Philosophy, this newer policy shall be followed until the older policy is revised.

 

Section 2: This section provides the structure to guide AFS personnel through AFS Compliance Policy implementation It outlines the process to identify the root cause(s) that led to deviations from rules, standards or procedures, resolve them, and return the individual or entity to full compliance

The use of Compliance Action should be considered the initial means of addressing all alleged, suspected, or identified instances of noncompliance with a rule or deviations from standards or procedures until it is determined that Compliance Action is not appropriate

Compliance Action may not be appropriate based on the specific facts of the event under review, or because of other policies or commitments that require a different agency response

 

Definitions

Compliance Action: An action taken by AFS personnel to correct an airman/organization deviation from standards when the deviation was not a result of intentional, reckless, or criminal behavior, or a pattern of negative behaviors or performance. Compliance Action does not relate to the approval, denial, suspension, modification, or revocation of a covered certificate

Corrective Action: Action taken by airmen/organizations to correct a noncompliance with a rule or deviations from standards or procedures, and to mitigate hazards/risks

Voluntary Compliance: Civil aviation safety depends on voluntary adherence to legal requirements. Therefore, the FAA administers programs to promote a clear awareness and understanding of the governing statute and regulations

Compliance Actions Education: Personnel are encouraged, during their oversight activities, to strengthen an airman/organization’s understanding of the regulation(s) and associated risks. The FAA also promotes education through public awareness programs and other aviation educational efforts

On-the-Spot: Corrective action completed immediately when a deviation from statutory or regulatory standards is identified by the FAA and communicated to an individual or company

Additional Training: Individuals remediated through their organization’s approved training program, through another required training program for their job function or work environment (such as carrier employees receiving SIDA or ramp driver training from the airport), or the FAASTeam Remedial Training process. Requires coordination with the FAASTeam and/or Principal Inspector (PI)/Certificate Holding District Office (CHDO)

Remedial Training: A program authorized and described in Notice N8900.RT that AFS inspectors use for certificated airmen when remedial training is the appropriate action to take for a deviation from statutory or regulatory standards

Counseling: Oral or written counseling of airmen, organizations, or non-certificated National Airspace System (NAS) participants, for a safety concern or a deviation from statutory or regulatory standards

Actions for Organizations: Improvements to systems, procedures, operating practices or training programs. Requires coordination with the Principal Inspector (PI)/ Certificate Holding District Office (CHDO)

 

Federal Aviation Administration Compliance Philosophy - 8000-373

Remedial Training

Remedial training, as outlined in Notice N8900.RT, may not be utilized by an airman who was using his or her certificate in air carrier operations (as defined in that notice) at the time of the apparent deviation.

Those airmen should be remediated through their organization’s approved training program. (see Vol. 14, Chapter 3, Section 2, for additional information)

 

CA Decision Process

Background

Personnel will no longer use the Enforcement Decision Process (EDP) to determine the action to take for noncompliance with regulatory standards.

Nearly all regulations address situations with the potential for significant damage or harm. The objective of most regulations is to reduce the likelihood of the hazard(s) resulting in injurious consequences – an accident. In this respect, the FAA defines the “acceptable level,” of risk in terms of the specifications in the rule. If the specifications are not met, the level of risk must be assumed to be uncontrolled and, therefore, unmitigated.

The primary objective of action at this point, then, is to return the risk to the intended level of control – to regain compliance.

In determining the action taken to return risk to effective control (i.e. compliance), the prime consideration is not the degree of potential harm associated with the situation since nearly all regulations address situations, which if not effectively controlled, present the potential for significant harm. The key objectives are to understand the risk and factors underlying the breakdown of the controls, and determine the action that has the greatest potential for addressing the problem.

In this respect, the willingness and ability of either individual or organizational NAS participants to actively participate in risk control actions is a key element of compliance action strategy. Diligent actions taken by a willing, capable participant to restore compliance equates to reducing the likelihood of a future event. Conversely, where the individual or organization is unwilling or incapable of effective action, we have to assume that the likelihood of such future events remains unmitigated and stronger action on the part of FAA may be necessary.

FAA Compliance Action.pdf
Adobe Acrobat document [1.2 MB]

 

Brasher Notification - "N12345, possible pilot deviation"

 

Results of an FAA Investigation

- Nothing happens 

- Oral/written counseling

- Criminal action

- Administrative action 

warning notice or

letter of correction

remedial training

- Request for reexamination

709 check - request for reexam under 49 USC 44709(a)

by FAA Inspector (request must be reasonable AND reexam is limted to reason for request

request to change inspector or FSDO

airman should get prior training and log it

failure/refusal to submit leads to emergency order of suspension

successful reexam does not bar subsequent certificate action

- Legal enforcement action (3 different letters)

1. Letter of Investigation (LOI): from an FAA Inspector (must be timely)

notification must state:

- response is not legally required

- no adverse inference if no response made

- must warn that response may be used in evidence against airman

- FAA EIR and ATC data will be available

2. Notice of Proposed Certificate Action (NPCA): from an FAA lawyer 

- offers series of options including informal conference (statutory right to be heard) via telephone or in person

- EIR needed before conference to fairly prepare

or Notice of Proposed Civil Penalty (NPCP): from an FAA lawyer

3. Order of Suspension, Revocation, or Civil Penalty: from an FAA lawyer

(all are usually sent by certified AND regular mail)

Not emergency cases:

- appeal deadline 20 days from time of service (NTSB Rule 821.30, Rule 7 "mailing date"

- no good cause for late filing if bad address on file with FAA (Mazufri) or travelling (Warfel)

- filing an appeal stays effectiveness of Order (except in emergency cases) but if no appeal taken to NTSB then certificate must be surrendered iaw FAA Order and failure to surrender will lead to civil penalty ($5,000 - Reid and Ashmore)

- FAA will then file Order as Complaint

- Answer to FAA Complaint due 20 days after served - Rule 31(c) - include affirmative defenses (emergency, ASRP immunity, controller error, reasonable reliance, stale complaint, laches, PBR non compliance) - give judges conflicting hearing dates and choice of location for hearing - failure to answer deemed admission - can amend within 15 days

Emergency Certificate Actions

- emergency order is effective immediately (NTSB appeal DOES NOT automatically stay effectiveness)

if FAA advises NTSB "that an emergency exists and safety in air commerce or air transportation requires the order to be effective immediately"

- by statute, NTSB must dispose of appeal in 60 days (pleadings, discovery, ALJ hearing, initial decision, appeal to board, decision and service)

emergency procedures may be waived

- Hoover Law (eff. 4-6-2000): permits review by NTSB of FAA's unilateral determination that an emergency exists (amends 49 USC 44709) - petition for review must be requested not later than 48 hours after order "received" by airman of FAA's emergency order - NTSB must dispose of petition within 5 days - if Board finds that emergency does not exist then the order "shall" be stayed - NTSB final rule 54

- Rule 54, Review of FAA detemrination: Time to petition for review is 2 days after "receipt" of order and may enumerate reasons - send petition by overnight delivery or fax - FAA may reply within 2 days - no hearing just paper review by Chief Judge who may solicit additional information - standard of review is "emergency determination was appropriate under the circumstances" - judge must assume truth of FAA allegations - to date less than 5% prevail and many are dismissed procedurally - no appeal of Chief Judge's decision to Full Board

 

FAA Order 2150.3B with latest changes

 

Stale Complaint: Rule 33

- 6 months to NPCA not LOI not Order (lost/delayed mail, inability to pick up at post office)

- exceptions: lack of qualifications (revocation) or good cause (FAA learns late, diligence - Ramaprakash)

- equitable laches available if actual prejudice shown - Manin

- distinguished from 5 year SOL - Broska

 

Pre-Trial Considerations

- Motion for Summary Judgment: Rule 17

- Discovery: Rule 19 - EIR and ATC data should have been obtained - FRCP "to the extent practicable" - request for sanctions for non-compliance requires prior motion and order to compel - available in emergency cases

- All current judges use pre-trial orders though not required - sanctions for non-compliance

 

Hearing

- Setting: Rule 37(a) - should be 30 days notice

- Location: set according to Rule 37 factors

- Continuances: make request early

- Subpoena and sequestration of witnesses: 49 CFR Part 9 for calling current or former DOT employees

- Burden of Proof: on FAA - preponderance of substantial, reliable, and probative evidence

- Prima Facie case: but for 14 CFR 91.13 - Lindstam doctrine per Stepovich "the Administrator need not allege or prove specific acts of carelessness to support a violation of section 91.9 (now 91.13). Instead, using circumstantial evidence, she may establish a prima facie case by creating a reasonable inference that the event would not have occurred but for carelessness on respondent's part. The burden then shifts to respondent to come forward with an alternative explanation for the event sufficient to cast reasonable doubt on (ie overcome inference of) the Administrator's claim of carelessness."

- Respondent as witness for FAA: DISCOURAGED!!!

- Initial decision: usually from bench - respondent provided FREE transcript

 

Rules of Evidence

- PBR: FRE "to the extent practicable"

- but judge granted wide latitude - rulings reviewable only for an abuse of discretion or prejudicial error - Lackey and Ferguson

- hearsay and multiple hearsay INADMISSIBLE per PBR unless FRE exception

 

ALJ Credibility Determinations

"the only standard of review in resolving credibility issues" is that the Board will henceforth defer "to a law judge's credibility findings absent a determination that such findings are arbitrary and capricious" - Porco

 

Sanction

NTSB no longer statutorily bound by "all validly adopted interpretations of ... written agency policy guidance available to the public related to sanctions" unless arbitrary, capricious, or otherwise not iaw law

Not bound by regular "Chevron" type deference - Perez

Judges may now be more free to determine sanction, so respondents should argue mitigating factors, FAA will argue aggravating factors

 

Interpretative Rules

US dept of Labor case - Supreme Court - interpretative rules do not have the force and effect of law - Perez v Mortgage Bankers Association (March 2015)

 

Appeal to Full Board

Rule 47: Notice of appeal due within 10 days

Rule 48(a): Appeal briefs due within 50 days of oral initial decision OR 30 days of written decision except for "good cause"

Extension of time - request within same timing - unopposed up to 2 requests - routinely granted

Rule 49: issues on appeal must have been raised below

Prosecutorial discretion not reviewed

Credibility of witnesses: Wedding, Andrzejewski, Porco

 

Late-filed Notices and Briefs

"The Board intends to adhere uniformly to a policy requiring the dismissal, absent a showing of good cause, of all appeals in which timely notices of appeal, timely appeal briefs or timely extension requests to submit those documents haven ot been filed." Hooper (1998)

 

Appeal to US District Court

Standard of review is "full independent review of a denial, suspension, or revocation . . . including substantive independent and expedited review of any decision of the Administrator to make such order effective immediately"

Court's review includes evidence of record before the FAA and record before the NTSB

 

Appeal to US Court of Appeals

Rule 64(b): request NTSB for stay pending Court's review within 30 days

- revocation usually NO

- suspension less than 6 months on case by case basis 

- scope of review by Court:

factual - substantial evidence rule

legal - reviewed de novo with deference

sanction - deference

- FAA may appeal "significant adverse impact"

 

FSDO - Flight Standards District Office - Scottsdale, Arizona

QAR - Quality Assurance Program

TFR - Temporary Flight Restrictions

NATA - National Air Transportation Association

CAP - Civil Air Patrol

FBO - Fixed Base Operator

CAF - Commemorative Air Force

LOI - Letter of Investigation

ASRP - Aviation Safety Reporting Program

ASAP - Aviation Safety Action Program

ATSAP - Air Traffic Safety Action Program

ERC - Event Review Committee

NOPCA - Notice of Proposed Certificate Action

EAJA - Equal Access to Justice Act

 

AOPA Legal Services Plan

 

What to do if stopped by law enforcement - AOPA guideline

 

FAA Administrator's Rules of Practice

FAA civil penalty decisions and other resources 

IATSBA: International Air & Transportation Safety Bar Association for info concerning practice before the NTSB

LPBA: Lawyer Pilots Bar Association for aviation law related articles

NTIS: National Technical Information Service – for NTSB bound volumes of decisions in safety enforcement cases and monthly issues of NTSB judges’ decisions

VDRP: Voluntary Disclosure Reporting Program 

AC_00-58B.pdf
Adobe Acrobat document [149.7 KB]

Advance Notice of Proposed Rulemaking 75 FR 80452 December 22, 2010 - Rules of Practice in Air Safety Proceedings and Implementing the Equal Access to Justice Act of 1980

Notice of Proposed Rulemaking 77 FR 6760 February 9, 2012

Final Rule and interim final rule 77 FR 63242 and 63245 October 16, 2012

Final Rule 78 FR 57527 September 19, 2013

Notice pertaining to emergency cases 78 FR 57602 September 19, 2013 withdrawn 79 FR 41668 July 17, 2014

8900.195 August 8, 2012 - Requirements for Written Notification During Investigations of Airman Certificate Holders or Applicants 

FAA General Inspector Manual - 8900.1

77 FR 52107 August 28, 2012 - How and where to request air traffic data from government contractors with the assistance of the FAA

80 FR 2776 January 20, 2015 - Requests for data should be directed to the FAA inspector who provided the written notice of investigation

 

Airman Appeals Process - NTSB

NTSB hearings: conducted "to the extent practicable" iaw FRCP and FRE

2015-00791.pdf
Adobe Acrobat document [217.4 KB]
Federal_Management_Regulation_(FMR)_Tran[...]
Adobe Acrobat document [219.4 KB]
FR-2010-12-22.pdf
Adobe Acrobat document [3.9 MB]
FR-2012-02-09.pdf
Adobe Acrobat document [2.3 MB]
FR-2012-08-28.pdf
Adobe Acrobat document [4.2 MB]
FR-2012-10-16.pdf
Adobe Acrobat document [15.9 MB]
FR-2013-09-19-2.pdf
Adobe Acrobat document [4.8 MB]
FR-2013-09-19.pdf
Adobe Acrobat document [4.8 MB]

NTSB Directory of Pertinent Employees in Legal Offices

NTSB Law Judge Circuit Assignments (map)

NTSB Judge Bios

NTSB Informational Memo – Effect of Pilot’s Bill of Rights

NTSB Office of Judges Case Processing Tips and Other Pertinent Information

NTSB Office of Judges Submission of Documents for Aviation Certificate Enforcement Cases

 

FAA Medical Standards

 

Enforcement_flow_chart.pdf
Adobe Acrobat document [328.2 KB]

NTSB Rules of Practice

- With respect to procedural rules, the rules contained in 49 CFR 821 B will be analogous to local rules as referenced in FRCP. To the extent the timelines for filing or responding, as well as procedural processes such as for discovery or subpoenas, differ slightly from the FRCP, the local rules will be followed. For situations not covered by specific NTSB rule, FRCP will be followed to the extent they are consistent with sound administrative practice

- Full NTSB will defer to judge's conduct and rulings on procedural issues unless shown to prejudice party's ability to fairly present evidence at hearing

Administrator v Coats NTSB Order EA-5710 (2014)

Administrator v Rigues NTSB Order EA-5666 (2013)

- FRE clearly excludes hearsay evidence unless an FRE exception applies - NTSB must apply FRE to the extent practicable

Administrator v Rigues NTSB Order EA-5666 (2013)

- FAA Administrator required to provide "timely, written notification to an individual who is the subject of an FAA investigation relating to the approval, denial, suspension, modification, or revocation of an airman certificate under 49 USC 447"

Timely: as yet to be defined

Required notification must include:

1. nature of investigation

2. notice that an oral or written response to a Letter of Investigation (LOI) from the FAA is not required

3. notice that no action or adverse inference can be taken against the individual for declining to respond to the LOI

4. notice that any response to an LOI or any other FAA inquiry my be used in evidence against the individual

5. notice that releasable portion of FAA's investigative report will be available to individual

6. notice that individual is entitled to access and to obtain air traffic data that would facilitate individual's ability to productively participate in a proceeding - data includes relevant air traffic communications tapes, radar information, air traffic controller statements, flight data, investigative reports, and any other data that would be helpful to individual

 

FAA takes a more sensible approach to first-time, inadvertent TFR violations

 

N8900.195.pdf
Adobe Acrobat document [104.3 KB]
5710.PDF
PDF File [174.0 KB]
5666.pdf
Adobe Acrobat document [1.5 MB]

Timeliness of notification: Administrator v Siwarski NTSB Order EA-5729 (2014)

5729.PDF
PDF File [130.6 KB]

Access to air data: individual is entitled to any air traffic data from a “government contractor that provides operational services to the FAA, including control towers and flight service stations.” Previously the issue was Leidos (formerly Lockheed Martin) is not the government and not bound by the FOIA

Requests MUST be “expeditiously received” because data “is destroyed or otherwise disposed of within a dew days or weeks after it is generated.” – requests MUST be detailed!

Typically format of data is in executable files, CDs, paper

Occasionally, information may only be viewed on FAA Air Traffic Organization (ATO) equipment with appropriate replay program usually at FAA facility – for those cases the FSDO should arrange with the airman and appropriate ATO personnel to facilitate a review of the data on ATO equipment

 

Unless an emergency exists the FAA may not proceed against an individual during the 30-day period from the date on which the air traffic data is made available to the individual – FAA currently interprets this to only affect processing of a case by FAA legal counsel!

Administrator v Michael NTSB Order SE-19457 (2013) – NTSB ALJ rules that FAA’s failure to abide by the time requirement was a jurisdictional defect

Administrator v Wilcox NTSB Order SE-19598 (2014) – NTSB ALJ in contrast ruled that time requirement was not violated and declined to dismiss the matter

NTSB motion to dismiss if FAA failed to provide releasable portions of FAA’s Enforcement Investigative Report (EIR) “with its required notification.” – However FAA contends that they do not have to release the EIR with LOI, but only to advise of availability of EIR… to compromise the NTSB which only has jurisdiction after a matter has been docketed on appeal, provides that the FAA must provide EIR by the time the FAA serves its complaint on the pilot.

14 CFR 821.19(d) – failure to provide copy of releasable portion of EIR

(d) Failure to provide or preserve evi- dence. The failure of any party to com- ply with a law judge’s order compelling discovery, or to cooperate with a time- ly request for the preservation of evi- dence, may result in a negative infer- ence against that party with respect to the matter sought and not provided or preserved, a preclusion order, dismissal or other relief deemed appropriate by the law judge. 

Administrator v Horna NTSB Order EA-5720 (2014) – NTSB applied standard of actual prejudice – found no prejudice since respondent had access to documents by reason of his position at company

5720.PDF
PDF File [92.2 KB]

Administrator v Gundersen NTSB Order EA-5735 (2014) – Motion to dismiss denied as it was unclear what airman was entitled to, what he did not get, and failure to articulate prejudice from judge’s ruling

5735.PDF
PDF File [58.8 KB]

NTSB no longer statutorily bound by interpretations adopted by FAA of laws and regulations as well as agency policy guidance related to sanctions – hence relaxation of mandatory deference

Martin v OSHRC – instructive in clarifying the extent of administrative agency deference to accord

 

Administrator v Jones NTSB Order EA-5647 (2013)

5647.PDF
PDF File [169.7 KB]

Administrator v McGuire NTSB Order EA-5736 (2014) NTSB Order EA-5742 (2015)

Must bring factors with support to ALJs especially wrt sanction

5736.PDF
PDF File [127.0 KB]
5742.PDF
PDF File [11.7 KB]

Appeals to US District Court: standard of review shall be a “full independent review… including substantive independent and expedited review of any decision by the Administrator to make such order effective immediately.” – shall include evidence of record before FAA and record of proceedings before NTSB

FAA argument: there must be individual’s certificate involved and individual must lose on the merits through all appeal options at NTSB (meaning exhaust administrative remedies first) before filing in district court – also review is limited to NTSB record using APA standard of review (agency actions, findings, and conclusions will be set aside if arbitrary, capricious, an abuse of discretion, or otherwise not iaw law or unsupported by substantial evidence)

Dexter v Huerta (2013) – full board decision after ALJ decision is prerequisite to district court jurisdiction

Repetto v Huerta (2014) – airman’s petition dismissed for deficient pleading in failing to properly mention any error and relief sought

Dustman v Huerta (2013) and Creighton v Department of Transportation (2014)

district court review is not de novo and no new trial will be conducted but review will be iaw APA standard of review (agency actions, findings, and conclusions will be set aside if arbitrary, capricious, an abuse of discretion, or otherwise not iaw law or unsupported by substantial evidence)

Langford v Huerta (2014) – remand to NTSB for more specific findings in order to properly conduct the review

Smith v Huerta (2014) – NTSB review on the merits, not disposition on a procedural default, is a prerequisite to district court jurisdiction

Tre Aviation Corporation v FAA (2015) – smj is limited to appeals involving airman certificates thus appeal relating to effectiveness of aircraft’s airworthiness certificate was outside jurisdiction and thus transferred to US Court of Appeals

 

NOTAM improvement was required to begin within 6 months of Bill’s passage and improvements were to be made within 1 year of date of enactment of Bill… some changes went into effect in 2013 but more are still pending!

 

Medical certification: Comptroller General of US was to initiate an assessment of FAA’s medical certification process and associated medical standards and forms and submit a report to Congress – completed in 2014 – Aviation Safety: FAA should improve usability of its online application system and clarity of the pilot’s medical form – GAO-14-330

662389.pdf
Adobe Acrobat document [3.4 MB]

Records and periods of time they are typically maintained:

  • Preflight briefings in HI and contiguous US (Lockheed Martin) – FAA has access too – request to both to prevent spoliation
  • Preflight briefings in AK – request to FAA
  • NOTAMS depending on type – 15 days to 8 years
  • Flight plans unless incident or case report – 30 days
  • ATC communications/RADAR enroute facilities – 15 days
  • ATC communications/RADAR terminal facilities – 45 days
  • ATC files related to loss of separation – 2 years
  • ATC other incident files – 2.5 years
  • ATC accident files – 5 years

Certified copies of weather data

  • order online from NOAA
  • order by phone: 828-271-4800
  • order by mail

National Climatic Data Center

151 Patton Ave., Room 120

Asheville, NC 28801-5001

FAA Order 1350.15C

Records Organization, Transfer, and Destruction Standards Chapter 10

Air Traffic Management

FAA Order 7210.3Y

FAA Order 8020.16A

FAA Order 7210.633

FAA Order 7210.632

Pilots Bill of Rights.pdf
Adobe Acrobat document [204.6 KB]

PILOT’S BILL OF RIGHTS 2 - Dec 15, 2015 - Passed by full Senate

Medical

Expansion of 3rd Class Medical exemption

Non-Commercial VFR Flights in AC that:

Have MGTOW of less than, or equal to 6,000lbs

Have no more than 6 seats

To qualify, pilots must:

Transport no more than 5 passengers

Fly at altitudes at, or less than 14,000’ MSL

Fly at speeds no greater than 250 KTS

Customs and Border Protection

Prohibits CBP from searching any GA plane, or requesting documents if:

The flight is within the lower 48

And having no suspicion, or probably cause of illegal activity

Investigation

Pilots facing FAA Investigation can appeal to have de novo trail

De novo meaning a new trial by a different tribunal

Provision from first Pilot Bill of Rights, not operating as intended, thus inclusion in the Second Pilot Bill of Rights

Non-pilot rights

Expands protection of original Pilot Bill of Rights to further certificate holders in the Aviation Community

E.g. Charter Operators and Repair stations

FAA notification

Requires the FAA to provide individuals notification they are under investigation

If the FAA fails to provide notification, under the Pilots Bill of Rights 2, the FAA can no longer press charges

Documents requested by FAA

Limits scope of documents requested by FAA investigators

FAA may only request documents or certificates of individuals under investigation

Documents must be pertinent to issues of the investigation

Expungement policies

FAA policy to be reinstated under PBR 2

Prevents FAA from retaining records of enforcement against certificate holder after retention for 5 years

If the FAA does not pursue enforcement action within 90 days, retention of records is prohibited

NOTAM violations

If FAA NOTAM improvement program is not finished by the end of 2015, punishment for NOTAM violations is prohibited

AME

Civil Liberties protection provided to AMEs and other FAA representatives

PBR2 will allow them to be treated as Government Employees as prescribed duties are carried out

 

AOPA article - PBR2 clears the Senate 

AOPA article - Senate passes Medical Reform

 

July 15, 2016: Third-class medical reform became the law of the land.

Under the provisions, pilot self-certification and recurrent online aeromedical training will replace medical exams. According to AOPA President Mark Baker, "This is the most significant legislative victory for general aviation in decades. These reforms will provide relief to hundreds of thousands of pilots from an outdated, costly, and unnecessarily burdensome system."

Under the new rules, pilots holding current driver's licenses and third-class medicals would never need to see an AME again. Instead, they would be required to visit their personal physicians once every four years and make a notation in their logbooks, as well as complete an online aeromedical factors test every two years and medically self-certify their fitness before each flight.

Pilots will be allowed to operate aircraft weighing up to 6,000 lbs and having up to 5 passenger seats, plus the pilot in command, at altitudes below 18,000 feet MSL and at speeds of up to 250 knots.

Pilots, if appropriately rated, can fly VFR or IFR but not for compensation or hire.

Pilots whose medicals or special issuances have expired less than 10 years before the legislation's enactment date will also be permitted to fly without seeing an AME. If it has been longer than 10 years since you have held a valid medical, or if you have never held a medical, you will need to see an AME once for a medical, after which you can adhere to the new rules. 

 

Although the extension only keeps the FAA running through September 2017, the medical reforms are permanent, and the FAA now has one year to develop and enact rules that align with the reforms. Pilots will not be allowed to fly under the reforms until the FAA has completed its rulemaking or the one-year time limit has elapsed, whichever comes first. The FAA has not yet said when it will begin the rulemaking process or what form that process will take.

 

Sept 9, 2016: Senator Tries to Relax Medical Rules for Private Pilots

 

If you want to see the same rules the FAA Safety Inspector will use for a ramp check

Flight Standards Information Management System

8900.1

Surveillance

Part 91

and AOPA article

06_001_004.pdf
Adobe Acrobat document [524.1 KB]

US COURTS OF APPEALS

According to the United States Courts website, “A court of appeals hears appeals from the district courts located within its circuit, as well as appeals from decisions of federal administrative agencies. In addition, the Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases, such as those involving patent laws and cases decided by the Court of International Trade and the Court of Federal Claims. (United States Courts)”

History

Judiciary Act of 1891- known as the Evarts Act, establishes nine U.S. Courts of Appeals, one for each judicial district at the time.

This act was in response to an overload of cases being appealed to the Supreme Court. By establishing the courts of appeals, the Evarts Act ensured another step must be taken before reaching the Supreme Court (Federal Judicial Center).

However, at this time, the U.S. Courts of Appeals did not have jurisdiction over appeals to decisions made by federal regulatory agencies. Of course, the FAA did not exist at this time.

1893- U.S. Court of Appeals created for the District of Columbia

1929- Congress establishes the Tenth Judicial Circuit (Federal Judicial Center)

1973- Commission on Revision of the Federal Court Appellate System proposes a national Court of Appeals, to settle inner-circuit conflicts

1980- Congress established the Eleventh Judicial Circuit

1982- Congress combines U.S. Court of Customs and Patent Appeals and the U.S. Court of Claims to form the U.S. Court of Appeals for the Federal Circuit (Federal Judicial Center)

Today

Thirteen U.S. Courts of Appeals

One from each of the eleven judicial circuits, one from the District of Columbia, and finally, and one from the Federal Circuit.

In total, there are 179 judgeships among these thirteen courts (Federal Judicial Center).

 

US Courts of Appeals by Circuit - photo from http://copyrightlitigation.blogspot.com

One presentation from the assignment on 1-16-2015 was outstanding and deserves special recognition.

It not only included videos but also hyperlinks and notes, and therefore it is included as a downloadable file - please see below 

Interpretive Rules.pptx
Microsoft Power Point presentation [284.1 KB]

Interpretive Rules

- Interpretive rule is a rule issued by an administrative agency that only clarifies or explains existing laws or regulations

- Need not meet the requirements of APA

- Administrative Procedures Act

Enacted 11 June 1946

Categorizes administrative rules as:

1. Legislative rules

2. Interpretive rules

3. Procedural rules and

4. General statements of policy

- Interpretive rule is a rule issued by an administrative agency that only clarifies or explains existing laws or regulations

- Need not meet the requirements of APA

Notice to the public

Opportunity for comment

- Does not have the force of law. This is also called legislative rule or interpretative rule.

Case Law

- Does not attempt to create a new law or modify existing ones.

Paralyzed Veterans of Am. v. West, 138 F.3d 1434 (Fed. Cir. 1998)

- Only provides clarifications or explanations to a statute or regulation.

Animal Legal Defense Fund v. Quigg, 710 F. Supp. 728 (N.D. Cal. 1989)

- Create no enforceable rights and only remind affected parties of existing duties.  The rules merely state how an agency understands a statute.  Interpretative rules only interpret the statute and thus guide the administrative agency in performing its duties.  An interpretative statement simply indicates an agency’s reading of a statute.

First Nat’l Bank v. Sanders, 946 F.2d 1185 (6th Cir. Tenn. 1991)

Good examples

- Agency Manuals

Airplane Flying Handbook (FAA-H-8083-3A)

Pilot’s Handbook of Aeronautical Knowledge   (FAA-H-8083-25A)

- Guidelines

Guide to Probability of Failure Analysis for New Expendable Launch Vehicles (Link)

Model Aircraft Operating Standards (AC91-57)  

Changing interpretive rules

- Individuals, and corporate entities can file a brief in District or Circuit court of appeals

Must be filed in court 60 Days after effective date posted in regulations.gov

- Reviewing court will consider

If unconstitutional

Goes beyond the legal authority

Made without following Notice and Comment Period

Violates another law

Arbitrary, Capricious, or abuse of discretion

- Their decision will be:

Vacates (Sets aside, or nullifies)

Upheld (Kept in)

 

FOIA Request from the FAA

 

FOIA: Freedom of Information Act – records that are maintained by the Federal government are available to the public upon request, unless an exception exists

e.g. ATC data

5 USC 552

 

Privacy Act: records that are retrieved with identifying information are only available to the individual who is the subject of the record or only with that subject’s written consent

e.g. airman medical records, certificate

5 USC 552a

 

49 CFR 7 – Public availability of Information

 

FAA Order 1270.1A – Freedom of Information Act Program

FAA_Order_1270.1A.pdf
Adobe Acrobat document [227.9 KB]
Citizens-Guide-on-Using-FOIA.2012.pdf
Adobe Acrobat document [431.6 KB]

Identify with specificity the records you are requesting – clear and concise – “reasonably described” with location

NO need and in fact DO NOT state reason for request

Include contact info especially phone number

State max fees you are willing to pay

You may request a format for records – paper or electronic media

 

Address:

FAA Headquarters FOIA Office, ARC-40

800 Independence Avenue SW,

Washington DC 20591

Fax:

202-493-5032

Email:

7-awa-arc-foia@faa.gov

NASA Report

Aviation Safety Reporting Program

background - TWA 514

time critical - within 10 days of event or when made aware

use for eliminating sanction

must plead as an affirmative defense 

airman bears burden of proof - identification on strip or confirmation screen

exceptions:

- accident

- criminal offense

- not "inadvertent" and "not deliberate"

- lack of competency or qualification

- finding of violation in past 5 years

 

AC 00-46E.pdf
Adobe Acrobat document [51.5 KB]
NASA Report.pdf
Adobe Acrobat document [433.5 KB]

49 USC 1133 Review of other agency action

49 USC 1153 Judicial Review

5 USC 504(c)(2) – in cases involving Equal Access to Justice Act – any petition for review of the Agency’s decision MUST be filed within 30 days of the Agency’s decision

49 USC 44709 Amendments, Modifications, Suspensions, and Revocations of Certificates

49 USC 44710 Revocations of Airman Certificates for controlled substance violations

49 USC 46104 Evidence

49 USC 46110 Judicial Review

5 USC 504(c)(2) – in cases involving Equal Access to Justice Act – any petition for review of the Agency’s decision MUST be filed within 30 days of the Agency’s decision

49 USC 46301 Civil Penalties

49 USC 46304 Liens on Aircraft

49 USC 46305 Actions to recover civil penalties

 

14 CFR PART 14—RULES IMPLEMENTING THE EQUAL ACCESS TO JUSTICE ACT OF 1980

EAJA

- NTSB may award attorneys fees and other litigation expenses if "incurred" to a "prevailing party" in an "adversary adjudication" unless the position of the FAA was "substantially justified" or an award would be unjust

- 5 USC 504 (see right above)

- NTSB Rules Part 826 (see right below)

- prevailing party: prevail on some charges even favorable settlement but not reduced sanction alone (except Gilfoil where only sanction challenged)

- adversary adjudication: only after FAA Order is appealed - no award where no Order issued - n/a to legal services prior to FAA filing of complaint - except for services successfully challenging an FAA emergency determination - cannot be awarded by NTSB for legal services in Court of Appeals proceedings - though EAJA award may be awarded by the Court

- substantially justified: "to find that the Administrator was substantially justified, we must find his position reasonable in fact and law, ie the legal theory propounded is reasonable, the facts alleged have a reasonable basis in truth, and the facts alleged will reasonably support the legal theory." - Briggs - FAA justified if key fact issues hinge on witness credibility - Moore

- incurred: fees paid by employer not incurred - but if advanced and owed even if litigation unsuccessful would be deemed incurred - must be documented in advance - Roberts - fees paid by union not incurred - contingent fee is incurred - since Oct 30, 2001 there must be contemporaneous documentation - Peacon - quantum meruit fees are incurred - prepaid legal plan is incurred

- application must be detailed: Rule 826.23 requires specific documentation of fees and expenses - Collings and Schmidt showing only the total amount claimed, claiming attorney-client privilege, application denied - "clearly, there are simple ways to prepare bills that generally describe the nature of the work without jeopardizing sensitive information."

- application must be within 30 days of final disposition - jurisdictional - Abiraman, one day late, unappealed initial decision, 30 days from initial decision, not 10 day expiration of FAA appeal time

- net worth requirements - individual - $2 million

- max hourly rate about $192 due to cpi

- expenses normally billed separately

- contingent fee recoverable

- waiver as part of settlement - Mendenhall

 

FAA's expunction policy

Currently suspended for legal enforcement actions by law passed August 2010

Some records still being expunged:

- administrative action: 2 years from letter

- closed investigation, no action: 90 days

- withdrawn action: 90 days

- successful defense before NTSB: 90 days

- successful reexamination: 1 month

Should be automatic but recommend checking

FAA Expunction Policy and Letter of Expunction Policy Suspended

This was first published in the Federal Register

56 FR 55788-01

then incorporated into chapter 2 of FAA Order 2150.3B

Now Suspended indefinitely

76 FR 7893 (2-11-2011)

 

14 CFR 13 Investigative and Enforcement Procedures

14 CFR 13.1 Reports of violations

14 CFR 13.3 Investigations (General)

14 CFR 13.5 Formal Complaints

14 CFR 13.7 Records, documents and reports

14 CFR 13.11 Administrative disposition of certain violations

14 CFR 13.13 Consent orders

14 CFR 13.14 Civil penalties: General

14 CFR 13.15 Civil penalties: Other than by administrative assessment

14 CFR 13.16 Civil penalties: Administrative assessment against a person other than an individual acting as a pilot, flight engineer, mechanic, or repairman. Administrative assessment against all persons for hazardous materials violations.

14 CFR 13.17 Seizure of aircraft

14 CFR 13.18 Civil penalties: Administrative assessment against an individual acting as a pilot, flight engineer, mechanic, or repairman

14 CFR 13.19 Certificate action

14 CFR 13.20 Orders of compliance, cease and desist orders, orders of denial, and other orders

Department of Transportation (DOT) Regulations 49 CFR Part 9

Testimony of Employees of the Department and Production of Records in legal proceedings

9.1 Purpose

9.2 Applicability

9.3 Definitions

9.5 General prohibition of production or disclosure in legal proceedings

9.7 Testimony by employees before the Department or in other legal proceedings in which the US is a party

9.9 Legal proceedings between private litigants: General rules

9.11 Legal proceedings between private litigants: Demands

9.13 Legal proceedings between private litigants: Procedures to request records

9.15 Legal proceedings between private litigants: Procedures to request testimony

9.17 Legal proceedings between private litigants: Procedures for taking testimony

9.19 Acceptance of service on behalf of Secretary

 

49 CFR 826 Rules implementing the Equal Access to Justice Act of 1980

14 CFR 831 Accident/Incident Investigation Procedures

NTSB Part 835 Testimony of Board Employees

 

Avoiding pilot deviations.pdf
Adobe Acrobat document [771.7 KB]
When The FAA Investigates You.docx
Microsoft Word document [142.3 KB]

Aviation Medical Cases

final_rule_faa_2016_9157.pdf
Adobe Acrobat document [462.6 KB]

FAA regulations pertaining to medical standards and certification may be found at 14 CFR Part 67

 

FAA guide for Aviation Medical Examiners - Application Process for Medical Certification and 

Medical Certification Decision Making

 

ADHD and the FAA by Warren Silberman

ADHD - FAA Website 

 

Guide for Aviation Medical Examiners

Pharmaceuticals (Therapeutic Medications)

FAA_Form_8500-8_Medical_App.pdf
Adobe Acrobat document [1.4 MB]

Requirement to file a written report of any conviction for a drug- or alcohol-related traffic offense OR the denial, cancellation, suspension, or revocation of your driver's license related to such an offense

FAA Civil Aviation Security Division - Oklahoma City - no later than 60 days after the conviction or motor vehicle agency action

 

FAA Frequently Asked Questions

 

Excellent articles on Medical Issues in AOPA magazine by Dr. Warren Silberman

and Dr. Jonathan M. Sackier

 

CACI - Conditions AME Can Issue - as of January 2017 there are 16 conditions identified by the FAA, previously requiring approval from the Aerospace Medical Certification Division in Oklahoma City, that can now be issued by the AME at the tme of the flight physical

 

Your AME can make the call without deferral to the Federal Air Surgeon prior to granting your medical certificate in these instances (talk to your AME BEFORE filling out medical application online):

- Asthma that is uncomplicated and has not necessitated frequent emergency-room visits or hospitalizations - asthma

- Diet-controlled Diabetes Mellitus - Pre-diabetes

- High blood pressure - Hypertension

- A solitary kidney stone that has passed with no retained stones

- Retained kidney stone(s)

- Chronic kidney disease

- Uncomplicated peptic ulcer 

- Arthritis

- Bladder Cancer 

- Colitis

- Glaucoma

- Hepatitis C - Chronic

- Hypothyroidism

- Migraine and Chronic Headache

- Prostate Cancer

- Renal Cancer

- Mitral valve repair

- Testicular Cancer

 

BasicMed Begins May 1, 2017  

April 24- General aviation pilots can now prepare to fly under BasicMed without holding a Federal Aviation Administration (FAA) medical certificate as long as they meet certain requirements. They can fly under BasicMed beginning on May 1, the effective date of the January 10 final rule. It offers pilots an alternative to the FAA's medical qualification process for third class medical certificates, while keeping general aviation pilots safe and flying affordable.

General aviation pilots may take advantage of the regulatory relief in the BasicMed rule or opt to continue to use their FAA medical certificate. Under BasicMed, a pilot will be required to complete a medical education course every two years, undergo a medical examination every four years, and comply with aircraft and operating restrictions. For example, pilots using BasicMed cannot operate an aircraft with more than six people onboard and the aircraft must not weigh more than 6,000 pounds.

 

A pilot flying under the BasicMed rule must:·      
 

 

  • possess a valid driver's license;
  • consent to a National Driver Register check;
  • have held a medical certificate that was valid at any time after July 15, 2006;
  • have not had the most recently held medical certificate revoked, suspended, or withdrawn;
  • have not had the most recent application for airman medical certification completed and denied;
  • have taken a BasicMed online medical education course within the past 24 calendar months;
  • have completed a comprehensive medical examination with any state-licensed physician within the past 48 months;
  • have been found eligible for special issuance of a medical certificate for certain specified mental health, neurological, or cardiovascular conditions, when applicable; and
  • not fly for compensation or hire.

 

Pilots can read and print the Comprehensive Medical Examination Checklist and learn about online BasicMed online medical courses at www.faa.gov/go/BasicMed.

 

For the Physician - Understanding BasicMed - AOPA

Contact Me

Sarah Nilsson, JD, PhD, MAS

 

602 561 8665

 

sarah@sarahnilsson.org

 

You can also fill out my online form.

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Legal disclaimer 

The information on this website is for educational purposes only and DOES NOT constitute legal advice. While the author of this website is an attorney, she is not your attorney, nor are you her client, until you enter into a written agreement with Nilsson Law, PLLC to provide legal services.

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