FOR IMMEDIATE RELEASE
Date: April 24, 2013
Contact: Kathleen Bergen
Phone: 404-305-5100
FAA Proposes $4 Million Civil Penalty Against UPS
WASHINGTON – The U.S. Department of Transportation’s Federal Aviation Administration (FAA) has proposed a $4 million civil penalty against United Parcel Service (UPS) of Louisville, Ky., for allegedly maintaining four cargo aircraft improperly and then operating them when they were not in compliance with Federal Aviation Regulations.
The FAA alleges that UPS failed to follow FAA-approved procedures for making structural repairs to two DC-8 aircraft and two MD-11 aircraft. UPS operated the four planes on more than 400 flights between October 2008 and June 2009.
“The aviation industry knows that we take safety very seriously,” said U.S. Transportation Secretary Ray LaHood. “Air carriers must comply with federal regulations to ensure aircraft are maintained to the highest level of safety.”
These violations stem from UPS’s failure to fully comply with the terms of a consent agreement in which the carrier agreed to inspect all aircraft in its fleet and compare actual repairs with maintenance records. This would have ensured the four aircraft were in compliance with the regulations.
“No aircraft should leave the ground until the operator has made all necessary repairs, and made them according to the correct procedures,” said FAA Administrator Michael Huerta.
UPS has 30 days from the receipt of the FAA’s civil penalty letter to respond to the agency.
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Despite the general rule that Contract Maintenance follow an Air Carrier’s FAA-approved maintenance program, the Department of Transportation Inspector General (IG), “had noted lapses in the means to ensure air carrier manuals are followed when contracted maintenance is performed. The deficiencies noted include a lack of guidance and training for the maintenance providers, and insufficient oversight of that maintenance.” The IG recommended a rule that would require the FAA to better identify Air Carrier Contact Maintenance Providers.
Consequently, “[t]he proposed rules would require these operators to develop policies, procedures, methods, and instructions for performing contract maintenance that are acceptable to the FAA and to include them in their maintenance manuals. The rules would also require the operators to provide a list to the FAA of all persons with whom they contract their maintenance.”
The full Notice of Proposed Rulemaking can be read here.
In keeping with its updated content initiative, www.kientzylaw.com has added a new page on the NASA ASRP or Aviation Safety Reporting Program.
This page discusses the importance of the NASA Aviation Safety Reporting Program, and the defenses utilization of the program can provide. For further information on this valuable program, the new page can be found here.
The Kientzy Law Firm has started a website updated content initiative which aims to improve the amount and quality of content provided by this website and to provide additional general information to the website’s visitors.
The first update can be found in the Aviation Practice Area section under Letter Of Investigation. Check back for more updates and general information content. Please feel free to comment and send feedback regarding these changes.
FAA Press Release:
FOR IMMEDIATE RELEASE
Date: August 27, 2012
Contact: Brie N. Sachse
Phone: (202) 267-3883
FAA Announces Plans for Industry Working Group to Study Portable Electronics Usage
WASHINGTON – Given the widespread consumer use of portable electronic devices (PEDs), the Federal Aviation Administration (FAA) is forming a government-industry group to study the current PED policies and procedures aircraft operators use to determine when these devices can be used safely during flight. Current FAA regulations require an aircraft operator to determine that radio frequency interference from PEDs are not a flight safety risk before the operator authorizes them for use during certain phases of flight.
“With so many different types of devices available, we recognize that this is an issue of consumer interest,” said Transportation Secretary Ray LaHood. “Safety is our highest priority, and we must set appropriate standards as we help the industry consider when passengers can use the latest technologies safely during a flight.”
The government-industry group will examine a variety of issues, including the testing methods aircraft operators use to determine which new technologies passengers can safely use aboard aircraft and when they can use them. The group will also look at the establishment of technological standards associated with the use of PEDs during any phase of flight. The group will then present its recommendations to the FAA.
The group will not consider the airborne use of cell phones for voice communications during flight.
“We’re looking for information to help air carriers and operators decide if they can allow more widespread use of electronic devices in today’s aircraft,” said Acting FAA Administrator Michael Huerta. “We also want solid safety data to make sure tomorrow’s aircraft designs are protected from interference.”
The government–industry group, established through an Aviation Rulemaking Committee, will be formally established this fall and will meet for six months. It will include representatives from the mobile technology and aviation manufacturing industries, pilot and flight attendant groups, airlines, and passenger associations.
As the first step in gathering information for the working group, the FAA is seeking public input on the agency’s current PED policies, guidance and procedures for operators. The Request for Comments, which will appear in the Federal Register on August 28th, is part of a data-driven agency initiative to review the methods and criteria operators use to permit PEDs during flights.
The FAA is seeking comments in the following areas:
- Operational, safety and security challenges associated with expanding PED use.
- Data sharing between aircraft operators and manufacturers to facilitate authorization of PED use.
- Necessity of new certification regulations requiring new aircraft designs to tolerate PED emissions.
- Information-sharing for manufacturers who already have proven PED and aircraft system compatibility to provide information to operators for new and modified aircraft.
- Development of consumer electronics industry standards for aircraft-friendly PEDs, or aircraft-compatible modes of operation.
- Required publication of aircraft operators’ PED policies.
- Restriction of PED use during takeoff, approach, landing and abnormal conditions to avoid distracting passengers during safety briefings and prevent possible injury to passengers.
- Development of standards for systems that actively detect potentially hazardous PED emissions.
- Technical challenges associated with further PED usage, and support from PED manufacturers to commercial aircraft operators.
The request for comments will go on display later this week at the Federal Register. Comments can be filed up to 60 days after the Federal Register publish date. View the document at: http://www.faa.gov/news/updates/media/PED_RFC_8-27-2012.pdf
On August 3, 2012, President Obama signed the Pilot’s Bill of Rights (S. 1335) into law. The law, sponsored by U.S. Sen. Jim Inhofe (R-Okla.), “guarantees pilots under investigation by the FAA expanded protection against enforcement actions via access to investigative reports, air traffic control and flight service recordings, and it also requires the FAA to provide the evidence being used as the basis of enforcement at least 30 days in advance of action” according to the Aircraft Owners and Pilots Association website.
On August 8, 2012, the FAA issued guidance to inspectors on the written notification required to be provided to individuals who are the subject of an investigation relating to the approval, denial, suspension, modification, or revocation of an airman certificate under Chapter 447 of Title 49 of the United States Code (49 U.S.C.).
If you have ever been to any of the presentations that I have given on FAA Enforcement Actions, you may recall that I am a big proponent of the NASA ASRS program. In fact I have often stated that completed correctly, there is no downside, strategically speaking, to filing a NASA form. Notwithstanding my generally being an advocate for this program, you may also recall that I did have one chief criticism regarding an obvious inconsistency with the criteria an airman must meet in order to avail himself or herself of the benefits of the program.
Most airmen recognize that in order to enjoy the benefits of the program, he or she must have reported a violation that was: inadvertent and not deliberate, and did not involve any criminal offense, accident, or which discloses a lack of qualification. Further the airman must not have been found in any prior FAA Enforcement Action to have violated the rules for a period of 5 years prior to the date of occurrence, and the airman proves that, within 10 days after the violation, he or she filed the form with NASA.
After I review these requirements with the participants of my presentation, I do my best to explain how the NTSB Board has grappled in applying the “inadvertent and not deliberate” criteria, and either use the oft-cited example of the spilled coffee altitude bust, or, if something had gone wrong during the presentation I’m giving (contrived spilled water demonstration, technical difficulties, etc), I will try to incorporate that into a discussion of whether such event was legally “inadvertent and not deliberate.” In conclusion of this sub-topic, I ask whether the participants can think of a better example of “inadvertent and not deliberate”? Usually, the answer is given, “some violation that you didn’t even know had occurred.” Think clipping the corner of Class B airspace.
We then circle back to the ten day filing requirement, and, here comes the rub, I ask the rhetorical question, “how can you file a NASA Form within 10 days of the violation, if you didn’t even know it had occurred?” This inherent inconsistency has affected multiple cases that I have worked on, and has been a source of frustration for many airman (and their attorneys alike!).
However, there may be some relief in sight. With the recent revision to AC No. 00-46, the FAA Advisory Circular which describes the ASRP, the Administrator has changed the ten-day requirement to read as follows: The person proves that, within 10 days after the violation, or date when the person became aware or should have been aware of the violation, he or she completed and delivered or mailed a written report of the incident or occurrence to NASA. Ostensibly, this change is intended to alleviate the long-standing criticism that I have been addressing during my presentation.
Unfortunately for our purposes, at the date of writing this post, there have yet to be any cases that have addressed this new language. It is uncertain how the NTSB ALJs will interpret the new provision (specifically, “should have been aware“), and whether (or how) an airman will prove that he or she shouldn’t have been aware sooner than he or she actually was. Presumably, the actual receipt by the airman of a Letter of Investigation from the local FSDO might set an outside limit. But reading the plain language of the Advisory Circular there is one thing that remains clear–it will be the Airman’s burden to prove that he or she met the requirements of the program.
EJK
To file a NASA Report: http://asrs.arc.nasa.gov/
To read the AC: http://asrs.arc.nasa.gov/overview/immunity.html
Today the FAA under Acting Administrator, Michael Huerta, issued the final rule intended to address the longstanding issue of pilot rest, or lack thereof. According to the FAA’s press release, the key components of the final rule (applicable to commercial passenger flights) are:
- Varying flight and duty requirements based on what time the pilot’s day begins;
- Decreased Flight Duty Periods;
- Increased Flight Time Limits ;
- Increased Minimum Rest Periods;
- Revised Cumulative Flight and Duty Time Limits; and
- Requirements that Pilots “affirmatively state” that they are physically fit for flight.
Furthermore, the FAA would permit airlines to develop an alternative way of mitigating fatigue if based on data and science.
Read the press release: https://www.faa.gov/news/press_releases/news_story.cfm?newsId=13272
Read the final rule: http://www.faa.gov/regulations_policies/rulemaking/recently_published/media/2120-AJ58-FinalRule.pdf
According to AOPA, the Pilot’s Bill of Rights (S. 1335), sponsored by Sen. James Inhofe (R-Okla.), and promoted by Harrison Ford is gaining momentum. Read the full article here.
From FederalRegister.gov:
This final rule amends the FAA’s regulations concerning pilot, flight instructor, and pilot school certification. This rule will require pilot-in-command (PIC) proficiency checks for pilots who act as PIC of turbojet-powered aircraft except for pilots of single seat experimental jets and pilots of experimental jets who do not carry passengers. It allows pilot applicants to apply concurrently for a private pilot certificate and an instrument rating and permits pilot schools and provisional pilot schools to apply for a combined private pilot certification and instrument rating course. In addition, the rule will: Allow pilot schools to use internet-based training programs without requiring schools to have a physical ground training facility; revise the definition of “complex airplane;” and allow the use of airplanes with throwover control wheels for expanded flight training. The final rule also amends the FAA’s regulations concerning pilot certificates to allow the conversion of a foreign pilot license to a U.S. pilot certificate under the provisions of a Bilateral Aviation Safety Agreement (BASA) and Implementing Procedures for Licensing (IPL). The FAA has determined these amendments are needed to enhance safety, respond to changes in the aviation industry, and reduce unnecessary regulatory burdens.
Click here to read the original summary and to read the full text of the rule.
