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A site devoted to aviation law, safety and security.

April 29, 2004

Cape Town Treaty Moving Towards Approval

The U.S. House Aviation Subcommittee approved H.R. 4226, moving one step closer to approval and ratification of the Cape Town Convention and the Protocol on Matters Specific to Aircraft Equipment (Cape Town Treaty).

In order to implement the Cape Town Treaty, the bill would designate the FAA Civil Aviation Registry as the entry point for authorizing filings relating to U.S. civil aircraft and aircraft engines to the new International Registry. It would also amend Chapter 441 of Title 49, United States Code by adding references to the Treaty and making changes to registration eligibility to reflect provisions of the Treaty.

The bill would authorize the necessary processes for registering, deregistering, and protecting interests for when the Treaty becomes effective and would clarify that the Treaty's provisions would pre-empt inconsistent FAA regulations during the rulemaking process.

In addition to the United States, the Cape Town Treaty was signed by 28 other nations. Ratification of the Treaty by the U.S. Senate Foreign Relations Committee is expected within a month.

Posted by Greg

April 27, 2004

Obtaining A TSA Fleet Waiver For International Flight Operations

Part 91 operators seeking a TSA Fleet Waiver to FDC NOTAM 2/5319 now have new application guidance. 2/5319 governs all IFR and VFR International Part 91 flights to or from the U.S. If an operator wants to fly to or from the U.S. using different procedures than described in 2/5319, then the operator must obtain a TSA Fleet Waiver.

To be eligible for a TSA Fleet Waiver, an applicant must complete a minimum of three single trip waiver flights without incident. Additionally, applying operators must show a cumulative average of three international flights a month to qualify. International Waiver Applications should be submitted to the TSA Office of Special Events via facsimile at: Primary Fax: (571) 227-1945 or Secondary Fax: (571) 227-2948. To ensure adequate processing time, you should submit your waiver at least five (5) days before your departure date.

Posted by Greg

April 26, 2004

The Department of Labor Maintains Its Postion Regarding Non-Exempt Status of Pilots

The April 23, 2004 issue of the Federal Register contained the U.S. Department of Labor's (DOL) new final federal regulation under the Fair Labor Standards Act (FLSA) implementing the exemption from minimum wage and overtime pay for executives, administrative, professional, outside sales, and computer employees. The DOL decided not to apply the "professional" exemption from overtime pay to pilots who are not otherwise exempt.

Under S13(b)(3) of the FLSA, most pilots including airline pilots are exempt from the FLSA overtime requirement including "any employee of a carrier by air subject to the provisions of the Title II of the Railway Labor Act." However, the exempt status of other pilots, such as corporate jet and helicopter pilots, are determined under S13 (a)(1) of the FLSA.

The DOL has taken the position that pilots are not exempt professionals. However, several recent court decisions have ruled to the contrary, holding that pilots are exempt professionals. As a result of the conflict in the courts, and the lack of uniformity on the standard educational requirements for the various pilot employment positions, the DOL decided not to modify its position on pilots at this time. The DOL is keeping its "non-enforcement policy" that has been in place for several years for pilots engaged in certain flying activities.

Posted by Greg

April 23, 2004

TSA Inspector General Reports That Airport Screeners Perform Poorly

A recent AP article in the April 22, 2004 edition of the Duluth News Tribune discusses a report by the Department of Homeland Security Inspector General regarding the performance of airport screeners. When asked to compare the quality of work between privately contracted and federally employed screeners, the IG stated that they both "performed about the same, which is to say, equally poorly." Imagine that!

Although the specific results of the inspector general's report were classified, apparetnly the report showed that passenger screening is no better than it was 17 years ago: Screeners didn't detect 20 percent of the dangerous objects that undercover agents carried through checkpoints. The report also portrayed the TSA as an "unresponsive inflexible bureaucracy". Big surprise.

This report confirms my belief that all of the "enhanced" security checkpoints and procedures are simply window dressing. Despite the added hassle and inconvenience the public has been told to tolerate in the name of aviation security, flying with the scheduled airlines is really not much, if any, safer than it was before. Unfortunately, it appears that passenger profiling and the El Al method of passenger screening are probably what it takes to truly enhance aviation security. But I leave that discussion for another day.

Posted by Greg

April 21, 2004

Federal Air Marshal Leaves Weapon In Bathroom At Cleveland Airport

The April 19, 2004 issue of Aviation Week & Space Technology contained an AP report that a federal air marshal had "accidnetally" left her gun in the restroom at the Cleveland Hopkins International Airport. Apparently she placed the weapon on a shelf while she was washing her hands. She then "forgot" about the weapon and left the restroom. Although the air marshal returned for the weapon a few minutes later, a passenger had already discovered the weapon and reported it to an airline employee who then notified airport police.

It is hard for me to understand how the simple act of washing your hands would require that a concealed weapon be removed and placed in open view in a restroom, let alone forgotten. The AP report indicated that this particular air marshal will probably be suspended. Seems like minimal discipline for a lapse in judgment that could have resulted in a tragedy if the weapon was discovered by a child or someone who decided to use the weapon to harm others. The restroom was beyond the security checkpoints and someone could have easily taken the weapon on a flight. This makes me seriously question the "caliber" of people supposedly working to secure the airport and aircraft environments. Where there is one, there is likely more.

This also ranks right up there with the TSA security screeners who thought it would be interesting to run themselves through the x-ray scanners to see x-rays of their brains. These screeners apparently received "additional training" as a corrective measure for their impromptu medical procedure. However, their TSA supervisor stated that "at no time was aviation security compromised". I beg to differ. Just having individuals like that employed in those positions compromises security. Knowing that these types of individuals are responsible for aviation security installs a lot of confidence. Not!

Personally, I will stick to general aviation transportation any chance I get. By avoiding the "aviation safety" associated with flying the airlines, I feel safer already.

Posted by Greg

April 17, 2004

FAA Agrees To Hold Public Meetings On Charity/Sightseeing NPRM

Yesterday, three days before the deadline for submitting comments, the FAA announced that it will hold public meetings on the Charity/Sightseeing NPRM. Two meetings will be held: One in Washington D.C. on May 11, 2004 at the Holiday Inn on the Hill, 415 New Jersey Avenue N.W., Washington, D.C. 20001. and the other on May 21, 2004 in Las Vegas, NV at the Clark County Government Center, 500 S. Grand Central Parkway, Las Vegas, Nevada 89155. The comment period will also be extended to June 18, 2004.

Comments to the rule may be submitted via the internet by going here and entering the NPRM docket number (FAA-1998-4521). You must then click on the comments/submissions button. You may also submit comments via U.S.Mail to: Document Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW, Washington, DC 20590-0001. You need to identify the docket number at the beginning of your comments, and submit two copies of your comments. Also, mark your envelope as follows: RE: Docket No. FAA-1998-4521; NPRM: National Air Tour Safety Standards.

Posted by Greg

April 16, 2004

Exchange Deadline For Warbird And Turbine Experimental Pilot LOA/LOOA Draws Near

If you hold a Letter of Authorization (LOA) or Letter of Operational Authority (LOOA) to act as pilot in command of U.S. and non-U.S. surplus military aircraft and certain turbine-powered experimental amateur-built/experimental exhibition aircraft, you have until July 31, 2004, to exchange your LOA and LOOA for an airman certificate. FAA Notice No. 8700.24 outlines the change for airmen who operate (LOA) or provide training in (LOOA) for these types of aircraft. (A list of the aircraft subject to the notice is contained in the notice's Appendix 1 and 2.)

You have until July 31, 2005 to exchange your LOA or LOOA for an airman certificate that will be issued with the equivalent authorized aircraft listed. If you don't exchange your LOA or LOOA prior to July 31, 2004, you may not exercise the privileges of your LOA or LOOA after that date. After July 31, 2005, if you don't exchange your LOA or LOOA, your LOA or LOOA will no longer be valid and will not be reissued as an authorization on your airman certificate.

If you have any questions regarding the changes, contact J.D. Martin, the National Program Manager, Vintage and Surplus Military Aircraft in the General Aviation and Commercial Division, AFS-800 at (847) 294-7150, (847) 921-6370, or J.D.Martin@faa.gov.

Posted by Greg

April 14, 2004

Adhering To Aviation "Truths" Is Good Accident/Enforcement Prevention

In the April issue of EAA's Sport Aviation, the Plane Talk column by Lauran Paine Jr. contains what he calls "self-evident truths". Although these truths don't technically raise legal issues, ignorance of or indifference to these truths has resulted in a great deal of FAR violations and also accidents. For the sake of safety and compliance, it is good practice for pilots to keep the following in mind:

1. Gross stupidity is usually met with a bent airframe.
2. The first chance you take is a precursor to your first mistake.
3. An aircraft in un-airworthy condition is best left on the ground.
4. In airplanes and on ski slopes, stay within your limits.
5. Ice ignored is your first mistake.
6. The sooner you call a halt to a bad situation, the better.
7. A good attitude can overcome many ills.
8. The closer you get to the ground, the more in control you must be.
9. Good planning now means more fun later.

If you understand and follow these truths, you are well on your way to avoiding the wrath of the FAA and/or an accident or incident. As always, fly safe and fly smart.

Posted by Greg

April 13, 2004

Final Rule Reorganizes Air Traffic Security In FAR Part 99

The FAA issued a final rule reorganizing its regulations governing the security control of air traffic (See FAR Part 99). According to the FAA, the reorganization was necessary "to reflect the changing environment and the increased role of [other] Federal agencies in advising the FAA about matters related to the security of air traffic operations...." The rule is effective on April 29 and was issued without seeking public comment "because the changes are minor and for the most part non-substantive."

The revised rule reflects the increased roles of the Department of Defense, federal security and/or intelligence agencies, and law enforcement agencies and their roles in advising and influencing the FAA in all matters related to the security of the National Airspace System and the aircraft that fly in it. Unfortunately, the rule does not affect NOTAM's that establish flight security procedures for the Washington, D.C. or that areas ADIZ.

Since the national security landscape changes on almost a daily basis, stay tuned. Hopefully new rules containing reasonable procedures and expectations will be implemented in the near future to re-open the D.C. airspace to business and general aviation.

Posted by Greg

April 07, 2004

Federal Bonus Depreciation Not Recognized By All States

The 50% bonus depreciation of aircraft purchased after May 5, 2003 and placed in service before January 1, 2005 allowed at the federal income tax level has not been recognized by all states. Taxpayers taking advantage of the bonus depreciation will need to check the laws of their particular state to determine whether their state has chosen to follow the bonus depreciation rules. In states that do not follow/recognize the bonus depreciation schedule, business owners must keep two sets of records for any assets being depreciated under the bonus depreciation schedule.

Wisconsin and Iowa are two Midwest states that do not recognize the bonus depreciation. Although Illinois also does not recognize the bonus depreciation, in Illinois a taxpayer does not need to keep separate records. In Minnesota, taxpayers also do not need to keep a separate set of records. However, Minnesota taxpayers will need to add back 80% of the bonus depreciation claimed, but then they may deduct the portion added back in equal parts over the next five years.

If you live in Wisconsin, Illinois, Minnesota or Iowa, you will need to determine the appropriate steps necessary to comply with the tax laws of your state.

Posted by Greg

April 06, 2004

Signature Alone Will No Longer Be Good Enough For FAA Registry

Effective June 1, 2004, all aircraft registration applications (AC Form 8050-1) submitted to the FAA Registry will need to contain both the signature and the typed or printed name of the person signing. Although the form has a place for the printed/typed name, up until now the FAA has not rejected applications omitting the printed/typed name. The Federal Aviation Drug-Enforcement Assistance Act (49 USC 44111) requires that the FAA reject applications that do not contain the signing person's printed or typed name in order to allow easy identification of the signing person's name.

Not sure what difference this will actually make when the Registry does not require any proof of identity or other verification from person's signing registration applications. But, if it will help in the fight against drugs, it doesn't seem to be much of a burden. It is simply just another "t" to cross or "i" to dot.

Posted by Greg

April 05, 2004

Extension of Bonus-Depreciation Tough Sell

The General Aviation Manufacturers Association (GAMA) is facing opposition to its efforts to lobby congress for an extension of the 50% bonus-depreciation tax break included in the Jobs and Growth Tax Relief Reconciliation Act of 2003. The deadline for taking advantage of the bonus-depreciation requires that new equipment, including aircraft, be placed into service by January 1, 2005.

Congress is arguing that extending the deadline would result in a $12 billion dollar reduction in revenue over the next ten years. However, GAMA believes that the $12 billion dollar number is overstated and incorrectly calculated. In support of the extension, GAMA argues that, within the first three months after the bonus-depreciation was increased to 50%, general aviation saw a 43% increase in orders of new aircraft. When asked, most of the aircraft purchasers indicated that the bonus-depreciation was a deciding factor in the purchase.

Also, the aircraft-manufacturing industry has a significantly longer manufacturing cycle than most industries. On average, it takes anywhere from eight to fourteen months from order to completion. The effect of this manufacturing cycle is that an order must be placed well in advance of the January 1, 2005 deadline. GAMA argues that this results in aircraft purchasers losing out on the bonus depreciation well in advance of purchasers of other capital equipment.

As a fall back, in case congress does not extend the bonus-depreciation, Sen. Blanche Lincoln (D-Ark.) has an amendment drafted that would at least extend the "placed-in-service" deadline to beyond January 1, 2005. I hope they are successful one way or another. From personal experience I can definitelysay that the bonus-depreciation has been a very important consideration for my clients purchasing new aircraft. It has definitely had a positive effect on an industry that currently can use all the help it can get.

Posted by Greg

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