A site devoted to aviation law, safety and security.
June 30, 2004
FAA Press Release Warns About Carrying Fireworks On Aircraft
In anticipation of the July 4th holiday weekend, the FAA today issued a Press Release
advising passengers of the prohibitions of
carrying fireworks on aircraft. Although it doesn't specifically reference what types of aircraft, the press releases references
to an aircraft's "pressurized atmosphere" and to domestic and international regulations appears to be aimed at transport category
aircraft and the airlines.
Fireworks and firework novelty items are considered hazardous-materials and passengers are prohibited from carrying such items in
their checked or carry-on baggage, or on their persons. If caught carrying these items, a passenger could face civil penalties of
up to $32,500 per violation with a minimum fine of $275, and criminal prosecution of up to five years in prison with criminal
fines of up to $250,000 for individuals and $500,000 for corporations.
Apparently the TSA
's increased screening and scrutiny is revealing a significant
number of violations: "From April 2003 to May 2004, the FAA opened 7,849 investigations into violations of the Hazardous
Materials Regulations. This compares to 2,555 investigations opened in the same time period the previous year." Unfortunately,
the Press Release doesn't break these figures out by type of hazardous material involved.
Regardless, it should go without saying that the risks far outweigh the possible benefits of traveling with these types of items
on the airlines. If you are flying somewhere for the 4th of July, the best bet is to buy your fireworks when you arrive at your
Posted by Greg
June 29, 2004
Personal Use of Corporate Aircraft Under Fire From Congress
Congress is taking aim at personal use of corporate aircraft. In the House of Representatives, Rep. Rahm Emanuel (D-Ill.) and 10
other Democrat cosponsors introduced The
Corporate Jet Tax Shelter Reform Act of 2004 (H.R.4352)
seeking to restrict a company's ability to deduct certain portions of
a flight conducted for personal use.
The bill would amend the Internal Revenue Code of 1986 to deny a deduction for the portion of employer-provided vacation flights
in excess of the amount of such flights that is treated as employee compensation. According to Emanuel, this legislation would
plug a loophole that "allows executives who fly in corporate jets for personal travel to write off this perk for about half the
price of a round-trip, first-class ticket from New York to Los Angeles, while at the same time the executive's company is
permitted to take a full tax deduction for the costs of owning and operating the airplane." He further claims this loophole costs
$287 million a year in lost tax revenues. H.R. 4352 was referred to the House Ways and Means Committee for further action.
At the same time in the Senate, an Amendment to the Jumpstart Our Business
Strength Act (S.1637)
was sponsored by Sens. Kay Bailey Hutchison (R-Texas) and Mary Landrieu (D-La.) in an attempt to limit
the amounts of deductions, including depreciation, for expenses relating to personal travel on a business aircraft.
I suspect both of these bills are in response to the Sutherland Lumber
case decided by the 8th Circuit
in 2001 upholding these deductions. Hopefully both of these bills will not make it to full congressional votes. If they do,
those involved in business aviation should contact their representatives and senators to lobby for defeat of these bills to
preserve the current deduction.
Posted by Greg
June 28, 2004
Cape Town Treaty Moving Forward
On June 22, 2004, the Senate Foreign Relations Committee approved H.R. 4226
and the full House voted by voice vote to pass
legislation implementing the Cape Town Convention and the Protocol on Matters Specific to Aircraft Equipment
(Treaty Doc 108-10 or Cape Town Treaty).
The Cape Town Treaty, as it is sometimes referred to by virtue of its negotiation in Cape Town, South Africa in 2001, would
establish an international legal framework for security and leasing interests in aircraft and would create an international
registry to keep track of transactions involving planes, helicopters, and engines, as well as a set of regulations relating to
payments, contracts, and bankruptcy.
Although the U.S. currently uses the proposed asset-based financing rules, this legal framework will be expanded to other
signatories to the treaty. This will provide greater consistency and security for asset-based lenders, including aircraft
financers. This should eliminate some of the risks associated with aircraft financing and, hopefully, expand the availability of
aircraft financing for international transactions. The Senate is expected to ratify the treaty by the end of the year.
Posted by Greg
June 27, 2004
Surviving A Ramp Check
Have you ever wondered what happens when an FAA inspector performs a ramp check? Why does it happen? What can the inspector do?
What can't the inspector do? What are your obligations? For answers to these questions and more, check out my latest article: Surviving The Ramp Check
Posted by Greg
June 21, 2004
Calling Flight Service For NOTAM's Is A Post-9/11 Necessity
All pilots should be familiar with and abide by FAR 91.103 which requires that "[e]ach pilot in command shall, before beginning a
flight, become familiar with all available information concerning that flight." In what appears to me to be a "no-brainer," in my
humble opinion, an airman's private pilot certificate was suspended for 240 days in
Administrator v. Somerville
when the airman failed
to call flight service on September 11, 2001 to obtain the NOTAM grounding all aircraft.
On the morning of September 11, 2001, Mr. Somerville flew from his home near Blue Ribbon Farm airstrip, WA, to Port Townsend, WA
airport. Even though he learned of the attacks prior to his outbound flight, he did not call flight service for a briefing.
Prior to his return flight and, after discussing the attacks and the NOTAM with a mechanic, the airman again failed to call flight
service. After a hearing, the administrative law judge affirmed an order of the FAA suspending the airman's certificate for
violation of several FAR's including 91.103.
In affirming the ALJ, the NTSB Board was very critical of the airman for assuming he knew everything he needed for a safe flight
without call flight service, especially in light of his knowledge of the attacks. The Board held that his flights were
"highly irresponsible and personally dangerous," that his return flight involved a "deliberate disregard of the NOTAM's grounding
of all flights," and his conduct exhibited a "negative compliance disposition" justifying warranting the 240 day suspension.
What does this case mean for you? Bottom line: Obtain a pre-flight briefing before every flight! Since 9/11, the rules have
changed. Temporary Flight Restrictions are a daily occurrence and, in some instances, they are implemented with very short
notice. The best way to protect yourself is to call flight service and specifically ask for NOTAM's and TFR's that affect your
route of flight. Not only will you receive the appropriate information, a recording of your conversation will
preserve evidence of your request which may prevent an enforcement action if a briefer fails to give you information that will
affect your flight and you unknowingly violate a NOTAM or TFR.
A simple phone call to flight service will provide you with the information you need to fly safe and to fly smart.
Posted by Greg
June 18, 2004
Extension Of 50% Bonus Depreciation Placed-In-Service Requirement Likely
With passage of H.R. 4520
American Jobs Creation Act, by the United States House of Representatives
appears likely that the current 50 percent bonus depreciation placed-in-service requirement will be extended to allow purchasers
of general aviation aircraft to continue to take advantage of the 50 percent bonus depreciation through January 1, 2006. H.R.
4520 contains a provision extending, for an additional twelve months, the placed-in-service requirement for purchasers of general
aviation aircraft wishing to qualify for 50 percent accelerated or bonus depreciation. The United States Senate
passed S. 1637
in May, which included the
same provision for extending the placed-in-service requirement for general aviation aircraft as the House bill.
The extension of the placed-in-service requirement is necessary because general aviation aircraft take longer to manufacture than
other products. The lead-time necessary for purchase of a new aircraft can be up to six months or longer. As a result, potential
purchasers would have already needed to order their aircraft in order for them to be able to meet the current placed in service
deadline of January 1, 2005. In some situations, even those previously placed orders may not be completed and placed in service
in time to meet the deadline. The current deadline effectively precludes a purchaser's ability to take advantage of the 50
percent bonus depreciation for an aircraft for the last half of 2004. The extension will provide an additional year within which
to purchase an aircraft and realize this tax benefit.
Assuming the conference of House and Senate members is able to resolve any differences between the two versions of the bill, it is
anticipated that the provision extending the placed in service deadline will be included in the final bill that is ultimately sent
to President Bush for signature. Let's hope the conference committee does not get bogged down in politics and is able to reach an
agreement. If the bills are not reconciled into a final bill, the extension provision for which so many aviation organizations
have successfully lobbied will be lost.
Posted by Greg
June 17, 2004
EPA Proposes Extension to Oil-Spill Rule Deadline Applicable To FBO's And Other Aircraft Refuelers
The Environmental Protection Agency (EPA)
has proposed extending an industry compliance
deadline for its 2002 revisions to oil spill response and prevention rules which apply to a wide range of industry sectors,
including FBO's and other operators who perform aircraft fueling.
establishes amended deadlines of August 17, 2005, to amend an existing SPCC plan, and February 18, 2006, to implement the
plan. Affected facilities that start operations between August 16, 2002, and February 18, 2006, must prepare and implement an
Spill Prevention Control and Countermeasure (SPCC) plan by February 18, 2006. Affected facilities that become operational after
February 18, 2006, must prepare and implement an SPCC plan before starting operations.
According to Eric Byer, director of government & industry affairs for the National Air Transportation Association,
"[t]his delay is a great relief to our members as they will no longer fear enforcement action while the EPA finally determines how
the standards actually apply. This is particularly important for those companies involved in fueling operations."
Comments on the proposal, due by July 7, 2004, are expected to be overwhelmingly in favor of the delay. You may submit your
comments, identified by Docket ID No. OPA-2004-0003, by one of the following methods: 1. Federal Rulemaking Portal:
http://www.regulations.gov and follow the on-line instructions for submitting comments; 2. Using EDOCKET at the agency's web site:
http://www.epa.gov/edocket (the EPA's preferrred method for receiving comments); or 3. Via U.S. Mail addressed to EPA Docket
Center, 1301 Constitution Ave., NW., EPA West, Suite B-102, Washington, DC 20460.
Posted by Greg
June 16, 2004
FAA Posts Two New DRVSM Documents To Its Website
The FAA has posted two new documents discussing Domestic Reduced Vertical Separation Minimums (DRVSM) to its website. "Basic
Operator Information on DRVSM Programs", dated June 1, 2004, provides a basic overview of the DRVSM program, including program
objectives, background, regulation and guidance, an overview of the RVSM authorization process and an explanation of basic DRVSM
policies. "DRVSM Operational Policy and Procedures: FAA Notice", dated May 31, 2004, contains DRVSM operational policy and
procedures. You can download copies of these documents here
DRVSM will go into effect on January 20, 2005 at 0901 UTC. All operators intending to fly between flight level (FL) 290-410
(inclusive) in the airspace of the lower 48 States of the United States, Alaska, Gulf of Mexico and Atlantic High Offshore
Airspace (including Houston and Miami Oceanic airspace) and the San Juan FIR after that date will need to be in compliance.
Posted by Greg
June 15, 2004
12-5 Standard Security Program No Longer Applicable To Aircraft Weighing 12,500 Pounds
recently released a "technical change" to the Twelve-Five Standard
Security Program to exclude aircraft weighing 12,500 pounds or less from the 12-5 Program
requirements. Prior to this change, the 12-5 Program included aircraft engaged in scheduled and charter operations with a maximum
certificated takeoff weight of 12,500 pounds or more. This "technical change" will release a number of operators from the 12-5
Program requirements who shouldn't have been included in the first place.
Affected operators should contact their TSA Principal Security Inspector to ensure that they are properly removed from the TSA
database. More information on the 12-5 Program is available at the NBAA website here
Posted by Greg
June 14, 2004
Timely Reporting And Remedial Treatment Do Not Mitigate Sanction For Multiple DUI Suspensions
recently affirmed a 120-day suspension of a pilot's airman certificates,
including his commercial pilot certificate, after the airman received two driving under the influence (DUI)
driver's license suspensions within three years in violation of FAR 61.15(d)
. In Administrator v. Kennedy
, the FAA issued an Order of Suspension after the airman reported the second DUI related suspension. The airman appealed and the administrative law judge affirmed the Order of Suspension.
On appeal to the full NTSB board, the airman did not argue that the suspension itself was improper (the airman conceded to the
administrative law judge that his conduct violated FAR 61.15(d)
). Rather, he argued that the suspension was excessive and should have been mitigated by the fact that he timely reported the two DUI related suspensions and that he had voluntarily undertaken alcohol related treatment.
In rejecting this argument, the Board cited a previous case in which it held that
"mitigation of sanction depends not on factors such as respondent's subsequent accomplishments but on the existence, type, and
degree of extenuating circumstances in the commission of the violation". The Board deferred to the FAA's choice of sanction and
noted that it was consistent with other sanctions imposed by the FAA for similar conduct.
The moral of the story is that DUI's are hazardous and, in some cases fatal, to an airman's continued use and possession of his or
her certificates. Conduct after
the fact does not persuade the FAA or the NTSB otherwise. Nothing wrong with having a few drinks after a long day of flying or
work. However, in the grand scheme of things, a cab ride is always going to be less expensive and less detrimental than a DUI.
Not only should you fly safe and fly smart, but you should take the same approach when it comes to drinking and driving.
Posted by Greg
June 12, 2004
EAA Charity Flight Drug Testing Exemption Renewed by FAA
On May 20, 2004 the FAA granted the Experimental Aircraft Association's (EAA)
petition to extend Exemption 7111C, as amended. This Exemption allows EAA chapters to conduct local sightseeing flights at
charity and community events without having to comply with the drug and alcohol misuse prevention requirements of FAR Part 135.
The extension extends the term of the Exemption to June 30, 2006. A copy of the letter extending the Exemption is available for
In order to qualify for the Exemption, EAA members must comply with the conditions and limitations contained in the Exemption that
pertain to each individual event, as well as to the individual pilot and organization sponsoring each event. These conditions and
limitations are contained in the letter extending the Exemption.
Individual EAA Chapters must request permission to operate under the Exemption by calling the EAA Chapter office staff at (920)
426-6867. If an individual EAA member would like to operate under the exemption for local events he or she does on their own, he
or she can apply directly to the Department of Transportation for a drug testing exemption. The four-event limitation will still
Individual exemption requests must be either faxed to the DOT Docket office at 202/493-2251 or mailed to: DOT Docket Management
System, 400 7th Street, SW, Room PL 401, Washington, DC 20591. For further information regarding the Exemption, contact the EAA
Posted by Greg
June 09, 2004
FAA To Update Small Aircraft Alterations Advisory Circular
The FAA is proposing to revise and update the current AC 43.13-2A, Acceptable Methods, Techniques, and Practices - Aircraft Alterations
to "reflect advances in aviation technology". The current AC provides guidance to mechanics and repair
stations for performing simple alterations to non-pressurized, certificated aircraft weighing less than 12,500 pounds.
The new policy would apply to "a landplane, seaplane, or floatplane, fixed gear aircraft of 6,000 pounds or less maximum gross
weight or less, and with a reciprocating engine of 200 horsepower or less". It would allow mechanics and repair stations to "use
acceptable data as approved data for major alterations to certain non-pressurized aircraft". The FAA is hoping to reduce the
need for field approvals for alterations to certain non-pressurized aircraft, and to reduce the
workload of the FSDO and the waiting time for FAA approvals, while maintaining the level of safety.
The Request for Comments was issued on May 28, 2004 and published in the Federal Register today. For further information or to
submit comments contact William O'Brien
, Aircraft Maintenance division, Federal Aviation
Administration, 800 Independence Ave., SW, Washington, DC 20591; telephone (202) 267-3796, fax (202) 267-5115.
Posted by Greg
June 08, 2004
Copyright License Not Required For Part 91 Inflight Videos
In response to member inquiries, NBAA
has issued "guidance to its Members that a
Motion Picture Licensing Corporation (MPLC) subscription is not required to legally display videos
during Part 91 flights." Apparently MPLC was contacting NBAA members and telling them they needed "a public performance
exhibition license" in order to show videos on Part 91 flights. According to the NBAA, "[i]t is the view of NBAA's legal
counsel, based on current legislation and judicial findings, that such a license is not necessary, as the showing of videos on
business airplanes during Part 91 operations does not constitute a 'public performance' as defined by the U.S. Copyright Act."
If MPLC contacts you for this purpose, ask them to provide you with the legal basis upon which they are making their claim.
Alternatively, you may simply rely on NBAA's guidance and state that your operations do not require such a license. Otherwise,
you can contact Joe Ponte
at NBAA for more information or to report contact from MPLC.
Posted by Greg
June 04, 2004
Eighth Circuit Holds That A Heliport Is An Airport
The Eight Circuit Court of Appeals in Edwards v.
Federal Aviation Administration
recently held that "a licensed heliport is an airport". Seems like a "no-brainer" to me, but
the court did provide a fairly detailed analysis supporting its legal conclusion.
The case took place in Sturgis, North Dakota during the annual motorcycle rally. Mr. Edwards' was displeased with a helicopter
owners operation of sightseeing flights departing and returning across the street from Mr. Edwards' store. The helicopter
operator obtained both a "favorable airspace determination from the FAA, as well as an airport operating
license from the South Dakota Aeronautics Commission." Despite these approvals, Mr. Edwards believed the helicopter operations
were unlawful and, in an attempt to "discourage" the flights, Mr. Edwards moored two large advertising balloons on his property.
FAA officials thereafter warned Mr. Edwards on numerous occasions that his balloons were illegal. Mr. Edwards eventually removed
the balloons, but only after threatening to shoot the windows out of helicopters flying over his property and having to explain
that comment to an FBI agent. As you might expect, the FAA was not pleased. The FAA sought, and the Administrative Law Judge
(ALJ) ordered, a $5,000.00 civil penalty against Mr. Edwards for his operation of the moored balloons in a manner that created a
hazard and within five miles of an airport.
In affirming the ALJ's finding that the heliport was an airport within the meaning of 14 C.F.R. - 1.1
, the Court granted substantial deference to the FAA's interpretation of the FAR's and found that the ALJ's determination
was reasonable "given the evidence that the site was being used regularly for the
take-off and landing of helicopters, with FAA and state approval." The Court noted, that "[t]he FAA, using clear and reasonable
language, defined 'airport', for the purpose of FAA safety regulations, as the place where a helicopter goes up and comes down."
However, it is unclear just how much weight the Court granted to the fact that the helicopter operator had obtained FAA and
Aeronautics approvals. Without these approvals, it seems to me that this case could be construed more broadly than it should be
to argue that any place a helicopter goes up and then comes down is a heliport. I don't think this was the Court's intention, but
without further clarification of the Court's reliance upon the approvals, such a broad
interpretation could easily be argued. It will be interesting to see how/whether this case is used/cited in the future.
Posted by Greg
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