Changes to the FAA's Medical Certification Process

As pilots age, their focus includes maintaining their health and mitigating/eliminating any health concerns. In the past, certain medical conditions complicated the process of a pilot renewing his medical certificate.

The Federal Aviation Administration (FAA) recently revised its medical certification process to make it easier for pilots to obtain their medical certificate by shifting the decision as to whether or not an airman is medically qualified to fly from the FAA’s offices in Oklahoma City & Washington D.C. to your local Aviation Medical Examiner (AME). The new “Certificates an AME Can Issue” (CACI) program empowers AMEs to directly issue pilots with certain qualifying medical conditions a medical certificate.  Pilots must still provide certain documentation proving the condition is under control to obtain certification, but now the pilots avoid the lengthy and oftentimes frustrating process of obtaining approval from the FAA’s Air Surgeon Office.

Now pilots with the following conditions may be able to take advantage of the CACI program to obtain their medical certification quickly:

·         Arthritis;

·         Asthma;

·         Glaucoma;

·         Chronic Hepatitis C;

·         Hypertension;

·         Hypothyroidism;

·         Migraine and chronic headaches;

·         Pre-diabetes; and

·         Renal cancer.

The FAA has also issued a new policy regarding cardiac special issuances after a stent procedure. Instead of waiting six months for follow-up testing, now pilots only need to wait three months. That’s less time waiting and more time flying!

For more information on the CACI program, contact Ronnie Gipson by telephone at 415.692.6520 or by email at Gipson@higagipsonllp.com.

Federal Government Cracks Down on Offenders Who Point Lasers at Aircraft

The Federal Government has gotten tough on people who point lasers at aircraft in flight.  Recently, a nineteen year old man was sentenced to 30 months in prison for pointing a laser at an aircraft as it was on approach to land at Burbank airport.  The man was charged with a violation of federal statute 18 U.S.C. § 39A.  The statute, passed into law in 2012, makes it a crime for anyone to knowingly point a laser pointer at an aircraft in U.S. Airspace.  The statute calls for either a prison term not to exceed 5 years, a fine or both. 

  “Why does this issue require such stiff penalties?”  The answer may not be patently obvious.  In 2011, there were more than 3,600 reported laser pointer incidents.  The beam of a laser pointer disperses and fills the cockpit.  The light can blind the pilots making it impossible for them to see the controls and maintain control of the aircraft.  If the laser light is green, then the danger to the pilots escalates exponentially because the human eye is susceptible to injury from light in the yellow-green spectrum. The tiny beam from the laser pointer that makes a dot on the ground expands with distance.  A mere five hundred feet away the dot expands to a width of 6 feet.  The beam disperses into the cockpit that blinds the cockpit crew.  The resulting blindness can cause catastrophic loss of life to the people in the aircraft and the loss of life to people on the ground.  In addition to the law recently passed, shining a laser pointer into an aircraft constitutes interference with the operation of an aircraft, which carries a possible penalty of a prison term of 20 years and/or a fine of $250,000.  The recent sentence from the Federal Judge sends a clear message, don’t point lasers at aircraft.

 
To report a laser pointer incident in flight, pilots should contact the FAA or dial 911.  If you have questions about the laser pointer law, then contact Ronnie Gipson by email at Gipson@higagipsonllp.com or by telephone at 415.692.6523. 

Glider Pilot Arrested When Local Sheriff Oversteps the Authority of His Office

     Recently, a glider pilot in South Carolina was arrested for posing a threat to national security by the local County Sheriff.  The pilot flew his "unpowered" glider in close proximity to a nuclear power plant.  An official at the plant contacted the Sheriff’s Office.  The Sheriff’s Office dispatched a team to the local airport where they established radio communication with the pilot via the Unicom frequency.  What happens next is nothing more than an affront to the American justice system.  The County Sheriff then instructed the glider pilot to land at the airport within his jurisdiction.  The pilot initially indicated that he would land at his home field.  In response the County Sheriff renewed his order to the pilot to land at the local airport.  The pilot complied.  After landing, the pilot was taken into custody and arrested for flying in the airspace too close to the nuclear facility which allegedly posed a risk to national security.  As a lawyer, I am outraged that an overzealous peace officer had the gall to exert official authority into an area beyond his jurisdiction.  I consider it to be my duty to assist other peace officers and the pilot population with the correct state of the law and the limits of the local peace officers’ powers with respect to airspace use and it corresponding regulation.  

FAA Has Sole Jurisdiction over US Airspace

     First, the establishment and regulation of airspace for the entire United States to include its territories, and dependencies rests with one agency, the Federal Aviation Administration (FAA).  The FAA’s power to regulate airspace emanates from the Federal Aviation Act of 1958 section 307.  Under the legal doctrine of pre-emption, State and local governments are prohibited from making laws that conflict with the FAA’s regulation of airspace under this Act. 

     In the incident that took place in South Carolina, the County Sheriff overstepped his authority.  Only the FAA has the authority to establish airspace restrictions and to enforce those rules.  If the glider pilot did indeed violate an airspace restriction, then the pilot would have been subject to a formal enforcement proceeding.  In a suspected airspace violation, the FAA conducts an investigation and determines whether or not there is enough evidence to proceed with a formal enforcement action.  If enough evidence exists and the severity of the infraction warrants it, then the FAA issues a Notice of Revocation/Suspension of the pilot’s license.  There are established rules and procedures in place for the appropriate government agency to address airspace violations.  Only the FAA is empowered to take such action against Airmen. 

     Interestingly, in this case, the Sheriff’s Office altered the formal charge against the pilot to one of “breaching the peace.”  The FAA is in charge of regulating airspace to avoid meritless criminal charges being lobbied against pilots from around the country.  Quite simply a local or State agency cannot seek to impose local laws on pilots in flight with respect to navigating through airspace.  Those rules fall squarely within the FAA’s area of responsibility.   

Designation of Prohibited or Restricted Airspace Is Governed by 14 C.F.R. Section 73

      Granted, there are airspace locations throughout the United States that warrant special protection from the transit of pilots without specific permission. A great example is the airspace surrounding a military installation, like an Air Force base.  In Northern California, Travis Air Force Base, located in the San Francisco Bay Area, merits and receives such protection.  The airspace south of the Air Force Base up to 3,000’; and the airspace north of the Air Force Base up to 6,000’, is designated as an Alert area. Without question, everyone would agree that transiting into the airspace surrounding Travis Air Force Base, as depicted on the chart, raises serious National Security concerns.  Herein lies the difference.  The chart clearly depicts the Alert Area, the pilot has notice of its existence; the applicable times of operation; and only needs to spend 60 seconds to determine whether to circumvent the airspace.  The nuclear plant involved in this incident, like almost all of the other nuclear facilities, was not depicted on charts released by the FAA.  Legally, as a matter of due process, in order to advance a claim of an airspace infraction, the FAA must prove that the pilot has notice of the restrictions accompanying airspace.  Without a reference on the chart, how is a pilot to know which areas to avoid?  Short answer, they can’t. 

     There exists a procedure available to other Federal agencies, State agencies, and local government agencies to impress upon the FAA the need to alter airspace.  Pursuant to 14 C.F.R. section 73, if an agency determines that a change in airspace is necessary, then that agency must submit a written request to the FAA for consideration.  In the glider pilot’s case, the nuclear facility had not submitted a request to the FAA for alterations of the airspace above its facility.  To be fair, the bad actor in this situation is not the nuclear facility but is instead the Sheriff’s Office.             

 
     The glider pilot was eventually released from custody after waiving his right to sue the Sheriff’s Office in a civil action.  By no means, should you interpret this blog article as an attack on the glider pilot’s decision not to pursue civil litigation against the Sheriff’s Office for overstepping its bounds.  Civil litigation is expensive in both money and time.  However, the best procedure for clearly establishing the limits of local authority and prevent future, similar encroachments on the FAA’s authority, would be to bring suit against the local authority for overstepping its authority.  If a similar situation happens to you or a friend, then the wrongfully accused pilot should consider bringing a claim with the goal of establishing a written precedent in the case law against such egregious conduct.  Until a local law enforcement agency oversteps its bounds, the issue won’t be ripe for a court to decide the issue.  In the interim, the best offense is a good defense.  Know your rights and the limits to the local government’s exercise of authority.  If you want further information or you believe that a local government agency exceeded its authority in relation to your airmanship, then contact Ronnie Gipson at 415.692.6520 or by email at gipson@higagipsonllp.com.

A DUI Conviction Can Prevent You From Entering Canada

Our firm represents clients in criminal law matters.  A significant number of those clients come to us for representation on Driving Under the Influence (DUI) charges.  In our experience, the mere DUI allegation brings about significant heartache and financial repercussions.  When there are inconsistencies in the methodology of obtaining the evidence to support the DUI charge, then there exist the legal basis to challenge and defeat the DUI charge.  Oftentimes, in DUI cases the objective is to either eliminate or reduce the charges to the lowest infraction possible.   Pilots[1] are not immune from being charged with DUIs.  However, the conviction carries a significant repercussion if the pilot’s livelihood carries him across the Canadian border.   Canada has strict laws that limit the entry of people into the country with criminal convictions on their record, including DUIs.  Under the Canadian Immigration Refugee Protection Act (CIRPA)[2], anyone with a criminal conviction is considered “criminally inadmissible” and may not be granted entry into Canada.    

                How do you know if your criminal conviction makes you “criminally inadmissible?”  According to CIRPA, Canada has the power to declare individuals criminally inadmissible if they are a threat to national security, guilty of committing human rights violations, guilty of “serious criminality,” or guilty of “criminality.”  Canada determines what is considered “serious criminality” or “criminality” by comparing what the relevant punishment for the crime is under applicable Canadian law. 

                In general, crimes that expose an individual to a maximum punishment of at least ten years in Canada, regardless of the applicable punishment in the home country, qualify as “serious criminality” under Canadian law.  Criminality is defined as any crime that a person is convicted of in their home country for which they could also be indicted for in Canada; and is reason enough to deny that individual entry into Canada.

                Broadly speaking, CIRPA grants significant power to Canada to limit the entry of persons with any criminal convictions.  For visitors from the United States, this includes anybody who has a Driving Under the Influence (DUI) or Driving while Intoxicated (DWI) offense.  In many jurisdictions throughout the United States, many first-time DUI/DWI convictions are generally treated as misdemeanors.  However, in Canada, a DUI/DWI conviction is the equivalent of a felony and thus the conviction qualifies either criminality or serious criminality.  As a result, a DUI/DWI conviction, even if it’s a misdemeanor in the U.S., authorizes Canada under CIRPA the right to deny entry.   

                As a pilot, if you find yourself in the unfortunate position of defending a DUI charge, then you should obtain the best criminal attorney possible.  The goal is to defeat the DUI charges or reduce the charges to the lowest infraction possible.  If you have questions about how a pending DUI can impact your ability to enter Canada or if you need more information about how a DUI charge can impact your medical certificate, then contact Ronnie Gipson @ 415.692.6523 or by email at gipson@higagipsonllp.com.   If you have questions about defending against a DUI charge, then contact James Higa @ 415.692.6524 or by email at higa@higagipsonllp.com. 

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[1] Under the FARs when a pilot is charged with a DUI, there are separate reporting requirements, which are not discussed in detail in this blog entry.

[2] Immigration and Refugee Protection Act, 2001 S.C., ch. 33, §§ 33-34 (Can.).

Clearing up the Misconceptions About Holiday Pay

In California, there seems to be a lot of confusion about requirements for holiday pay for employees.  Our office routinely fields questions from employers and employees on this topic during the holidays.  This blog post is intended to clear up some of the common misconceptions about holiday pay. 

In California, hours worked on holidays, Saturdays, and Sundays are treated like hours worked on any other day of the week.  California law does not require that an employer provide its employees with paid holidays.  The law also does not require that the employer close its business on any holiday or that any employee be given the day off for any particular holiday.  If an employer elects to close its business on a holiday and give its employees time off from work with pay, then such a circumstance exists pursuant to an internal policy or practice adopted by the employer.  There is nothing in the law that requires such a practice.  Additionally, there is nothing in the law that mandates that an employer pay an employee a special premium for work performed on a holiday, Saturday, or Sunday, other than the overtime premium for work performed in excess of eight hours in a workday or 40 hours in a workweek.

Consider the following questions/scenarios that have been posed by employees on this topic:

• Q:  We get 11 holidays off each year without pay.  My sister gets the same 11 holidays off, and she gets paid for all of them.  Is my employer breaking the law because he is not paying us for these holidays when he is required to, even though we don't work on any of them?  Answer:  No, your employer is not breaking the law.  There is nothing in state law that mandates that employees be paid for holidays that are not worked.

• Q:  Last week we were closed for business on Monday to celebrate a holiday.  Consequently, I worked Tuesday through Saturday that week, eight hours a day.  When I got my paycheck this week, I was paid for 48 hours last week at my straight time rate.  Shouldn't eight of those hours be paid at time and one-half, the overtime rate, since I was paid for more than 40 hours in the workweek?  Answer:  No, you were paid correctly.  In this situation, even though you did not work on the holiday your employer chose to pay you for it, which it has the absolute right and discretion to do.  However, the determination of whether overtime pay is due is based on hours worked, and not upon pay received.  Thus, since you did not work more than eight hours in any one workday, or more than 40 hours in the workweek, you are not entitled to any overtime pay for the workweek.

• Q:  My employer is open for business on every holiday, some of which I have to work.  Isn't this against the law?  Answer:  No.  There is nothing in state law that mandates that an employer must close its business on any particular day, if at all.  It is up to your employer to select which days, if any, it chooses to be open and closed for business.  If your employer is open on a holiday and schedules you to work on that day, then there is nothing in the law that obligates your employer to pay you anything but your regular pay and any overtime premium for all overtime hours worked. 

Should you have continuing questions or concerns about holiday and overtime pay or questions about employment law, then contact Ronnie Gipson at (415) 692-6523 or by email at gipson@higagipsonllp.com. 

Closer Scrutiny of Online Content Sharing by ISPs

 

In the face of widespread online file sharing, Internet Service Providers (ISPs), such as AT&T, Cablevision Systems, Comcast, Time Warner Cable, and Verizon are implementing a "six-strike" plan to educate and prevent pirates from downloading unauthorized material.  You read that right- there are six strikes.  The system is intended to target peer-to-peer file sharing websites, and not online lockers, such as Dropbox, or email attachments.

After the first offense is detected, the Internet subscriber will receive an email alert from their ISP saying that the subscriber account may have been used for “online content theft.”  After the second offense, the Internet subscriber will receive another email alert, but possibly with an additional educational message about the legal consequences of online content theft.  Third and fourth offenses will also result in email notifications, along with the addition of a pop-up or landing page that the Internet subscriber must click on to acknowledge receipt.  Beginning at the fifth offense, “Mitigation Measures” may be taken against the subscriber.  These measures may include, for example: “temporary reductions of Internet speeds, redirection to a landing page until the subscriber contacts the ISP to discuss the matter or reviews and responds to some educational information about copyright, or other measures (as specified in published policies) that the ISP may deem necessary to help resolve the matter.” ISPs probably will not disable the subscriber’s voice telephone, e-mail account, or any security or health service. There will be no blacklist of subscribers shared amongst ISPs. The ISPs also have the option to waive the Mitigation Measure.   After a sixth offense, Mitigation Measures will be implemented against the subscriber again. Under this system, a subscriber’s account will not be terminated.

If an Internet subscriber believes s/he has been wrongfully targeted, the subscriber may request an investigation for a $35 filing fee.  There is considerable interest to see if this system will really be effective.  There is a time frame after which the calendar to measure strikes resets, but when the calendar resets is not clear.  In practice, a person may actually have more than four strikes before Mitigation Measures are implemented by the ISPs.  As the system is more widely implemented, it will be interesting to see how the specific mechanics change for practical application.

To obtain more information about the system, contact Veronique Kherian at vkherian@higagipsonllp.com or (415) 692-6520 Ext. 109.

AirVenture 2012 & The Pilots Bill of Rights

I just returned from my very first Air Venture fly-in at Osh Kosh, WI.  I could spend pages discussing my impressions of the wonderful folks I met in the North 40, the Warbird area, or while watching the night airshow.  Instead, I will discuss the passage of the Pilots Bill of Rights announced during the event.

Let's start with some background.  In October 2010, Senator Jim Inhofe was flying his twin engine plane into an uncontrolled field in Texas.  While in flight Sen. Inhofe was under the control of ATC.  However, during the transition phase from cruise to descent and landing, the controller made a mistake and cleared Sen. Inhofe to land at the airport instead of terminating radar services.  When Sen. Inhofe was on short final he observed a maintenance crew with equipment on the first 1/3 of the runway.  He was not advised of the maintenance crew's presence by either the controller or the NOTAMs he obtained for his preflight.  Sen. Inhofe was able to safely land the aircraft on the remaining 2/3 of the runway avoiding any contact with the maintenance crew or equipment. 

Unfortunately, the story does not end there.  The FAA initiated an investigation into the incident and then proceeded to pursue an enforcement action against Sen. Inhofe's license.  To defend himself, Sen. Inhofe requested copies of the ATC tapes.  Under the current system, the facility responsible for the tapes was not required to turn them over to Sen. Inhofe as he prepared to mount his defense to the allegations raised by the FAA, even though they conclusively proved that he was not at fault for any wrongdoing.  It took Sen. Inhofe four (4) months to obtain the tapes.  In the end, an informal agreement was reached and the enforcement action was resolved without either a suspension or revocation of Sen. Inhofe's license.

The event clearly exemplified to Sen. Inhofe all of the injustices in the enforcement process that certificate holders face.  As a result, with the help of AOPA and the EAA, Sen. Inhofe presented legislation to the Senate titled the Pilots Bill of Rights.  Essentially, the Pilots Bill of Rights is designed to eliminate the current elements of unfairness and justice to certificate holders subjected to the enforcement process. 

Specifically, the Pilots Bill of Rights requires National Transportation Safety Board (NTSB) proceedings for the review of decisions of the Administrator of the Federal Aviation Administration (FAA) to deny, amend, modify, suspend, or revoke an airman's certificate to be conducted, to the extent practicable, in accordance with the Federal Rules of Civil Procedure and Federal Rules of Evidence.   The Bill requires the Administrator to:

(1) advise the subject of an investigation involving the approval, denial, suspension, modification, or revocation of an airman certificate of specified information pertinent to the investigation; and

(2) provide him or her with access to relevant air traffic data.

Next, the bill allows an individual to elect to file an appeal of a certificate denial, a punitive civil action, or an emergency order of revocation in the U.S. District Court in which the individual resides, in which the action in question occurred, or the district court for the District of Columbia.  The bill allows an adversely affected individual who elects not to file an appeal in a federal district court to file such appeal with the NTSB.  The bill directs the Administrator to begin a Notice to Airmen (NOTAM) Improvement Program to improve the system of providing airmen with pertinent and timely information before a flight in the national airspace system.

The bill also makes Flight Service Station briefings and other air traffic services performed by Lockheed Martin or any other government contractor available to airmen under the Freedom of Information Act (FOIA).

Finally, the bill requires the Administrator to review the FAA system for the medical certification of airmen in order to:

(1) revise the medical application form,

(2) align medical qualification policies with present-day qualified medical judgment and practices, and

(3) publish objective medical standards to advise the public of the criteria determining an airman's medical certificate eligibility.

At Oshkosh, Sen. Jim Inhofe along with Congressman Samuel Graves, the bill's sponsor in the House of Representatives, were on hand to announce that the Pilots Bill of Rights had passed both the Senate and House without objection.  The legislation now moves on to the President for signature.  Under Article I, Section 7 of the United States Constitution, the President has 10 days to sign the legislation into law.  Since Congress is in session if the President fails to take any action, then the bill automatically becomes law.  The aviation community and especially aviation attorneys like me who work to defend Airmen and certificate holders in enforcement proceedings thank Sen. Inhofe, Congressman Graves, AOPA, and EAA for their support in passing essential legislation that returns the enforcement process to a system that is fair.

My purpose for going to AirVenture is that I was invited to join the EAA's Legal Advisory Council.  I am humbled and honored to join this prestigious group of aviation attorneys. The Council consists of nine (9) attorney members who provide advocacy support to EAA.  More importantly the Council members mainly serve as a resource to the EAA members who have legal questions.  Now that I am a member of both the AOPA Legal Panel and the EAA Advisory Council, I am excited at the prospect of being able to reach Airmen and Certificate holders and assist them regardless of their specific flying interest.  Should the need arise for representation in the enforcement process or any other aviation legal question occur, then feel free to contact me at (415) 692-6520.  I can also be reached by email at gipson@higagipsonllp.com.