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October 28, 2004

Initial And Amended Registration Forms May No Longer Be Required For Air Taxi Operators And Commuter Air Carriers

In a Notice of Proposed Rulemaking published today, the Department of Transportation is proposing to eliminate air taxi operator and commuter air carrier registration requirements.

Air carriers operating or proposing to operate small aircraft (60 seats or less or 18,000 pounds payload or less) are exempt from the provisions of 49 U.S.C. 41101, which requires U.S. air carriers to hold certificates of public convenience and necessity in order to engage in interstate and/or foreign air transportation operations. However, to qualify for the exemption, the air carrier must meet the registration, insurance and other requirements of 14 CFR part 298. Additionally, the commuter air carrier must submit an application and data in accordance with 14 CFR parts 201 and 204 in order to demonstrate to the DOT that the commuter air carrier meets the fitness requirements of 14 CFR 298.21(d).

The fitness requirements and the process for obtaining authority for commuter air carriers are nearly identical to those applicable to companies seeking certificates of public convenience and necessity under 49 U.S.C. 41101. As a result, the DOT feels the removal of the redundant registration requirements "will simplify the process of applying for and maintaining commuter air carrier authority".

Comments identified as Docket No. OST-2004-19426 are due on or before December 13, 2004 and may be submitted electronically via http://dms.dot.gov or http://www.regulations.gov, via U.S. Mail to Dockets Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590. Fax: 1-202-493-2251, or via hand delivery to Room PL-401 on the plaza level of the Nassif building, 400 Seventh Street, SW., Washington, DC.

For more information regarding the proposed rule you should read the rule in its entirety or you may contact Delores A. King, Air Carrier Fitness Division, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590, (202) 366-9721.

Posted by Greg

October 26, 2004

Proposed Policy For Propeller Ice Protection Announced By FAA

In a Notice of Proposed Policy Statement published in the Federal Register today, the FAA is requesting comments about its proposed policy regarding Propeller Ice Protection Equipment. A copy of the policy statement is available here.

The policy statement is intended to clarify and provide guidance regarding certification of propeller ice protection systems which are governed by overlapping certification requirements in FAR's Part 23 and Part 35. Although the proposed policy does not create any new requirements, it does clarify "configuration and quality control responsibilities for certificate holders and parts suppliers involved with propeller ice protection systems".

For further information or to submit comments on the proposed policy statement, contact Jay Turnberg, FAA, Engine and Propeller Standards Staff, ANE-110, 12 New England Executive Park, Burlington, MA 01803; e-mail: jay.turnberg@faa.gov; telephone: (781) 238-7116; fax: (781) 238-7199.

Posted by Greg

FAA Extends Comment Period For Proposed AC 23-17B

The FAA today published a Notice in the Federal Register extending the comment period for proposed AC 23-17B relating to certification of Part 23 aircraft. The comment period is being extended from October 29, 2004, to November 29, 2004. Additional information regarding AC 23-17B and procedures for submitting comments are available in my September 29, 2004 post.

Posted by Greg

October 21, 2004

FAA Issues Major Alteration "Checklist" Advisory Circular

The FAA today published a Notice of issuance of advisory circular for Advisory Circular (AC) 23-21, Airworthiness Compliance Checklists Used to Substantiate Major Alterations for Small Airplanes. The AC provides guidance material for the creation and use of airworthiness compliance checklists that can be used by Airframe and Powerplant (A&P) mechanics with Inspection Authorization (IA) and by Federal Aviation Administration (FAA) Airworthiness Safety Inspectors (ASIs) when making/approving major alterations to small airplanes.

This AC is limited to "major" alterations, as defined in 14 CFR, part 1, as opposed to complex alterations that require a Supplemental Type Certificate (STC), per FAA Order 8300.10. The AC is neither mandatory nor regulatory and does not change any previously released FAA guidance material. Rather, the AC is intended to "provide a tool to work within existing approval processes" and is specifically meant to be used in conjunction with and to complement AC 43-210, Standardized Procedures for Requesting Field Approval of Data, Major Alterations, and Repairs. The FAA notes that "the use of these checklists during the return to service of a major alteration is not mandatory nor does it alter any previously acceptable method."

Although the draft advisory circular was issued for Public Comment on May 28, 2004, the FAA did not receive any comments to the draft advisory circular.

Posted by Greg

TSA Revises Alien Flight Training Rule

According to an AOPA Update, the TSA has amended its alien flight training rule. The amendments limit the rule's "citizenship validation" to individuals seeking instruction toward a new certificate or rating. The validation requirement now only requires that a flight instructor review the pilot's citizenship documents and then make an entry in the pilot's logbook indicating that the flight instructor has determined that the pilot is a U.S. citizen and eligible to receive flight instruction. The rule no longer applies to students seeking a biennial flight review or currency training. Additionally, the amended rule eliminates the record retention requirements contained in the initial rule. AOPA is working towards additional changes in the rule, so stay tuned.

Posted by Greg

October 20, 2004

FAA Publishes Proposal For O'Hare Slot Reservation System

If you are thinking about flying into O'Hare airport as a Part 91 or Part 135 unscheduled flight, in the near future you may need to make a reservation in advance in order to land. The FAA today published a Notice of Proposed Rulemaking in the Federal Register for a "Proposed Reservation System for Unscheduled Arrivals at Chicago's O'Hare International Airport". (A copy of the NPRM is also available here). Under the proposed reservation system, the FAA would limit unscheduled arrivals to four per hour between the hours of 7 a.m. and 9 p.m. Central Time beginning November 1, 2004, and continuing through April 30, 2005.

This action comes in the wake of the agreement reached between the airlines operating at O'Hare and the FAA to reduce the number of arrivals in an attempt to eliminate the delays that were resulting from the airlines "persistent over scheduling of flights at the airport". Since non-scheduled operators were not parties to the negotiations and agreement between the airlines and the FAA, the FAA has issued the proposed reservations system to "ensure that the demand for such operations is spread reasonably throughout the day and allow the FAA to achieve the overall established operational target for scheduled and unscheduled arrival flights."

The arrival slot reservations would be allocated in half-hour increments with no more than two arrival reservations in a half-hour period available for unscheduled arrivals. The FAA's Airport Reservation Office (ARO) would receive and process all reservations requests and reservations would be allocated on a first-come, first-served basis, determined by the time the request is received by the ARO (1) via the Internet; (2) by calling the ARO's interactive computer system via touch-tone telephone; or (3) by calling the ARO directly. Once a reservation has been allocated, an aircraft operator will still need to file a flight plan and obtain ATC clearance.

Comments may be submitted [identified by Docket Number FAA-2004-19411] using any of the following methods: (1) electronically at the DOT Docket Web site or at the Government-wide Rulemaking Web site (2) via U.S. Mail addressed to: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001; (3) via Fax: 1-202-493-2251; or (4) Hand delivered Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Posted by Greg

October 19, 2004

TSA To Require Security Procedures for Part 125 Aircraft Operators

In response to what it feels are vulnerabilities in aviation security, the TSA today published a Notice in the Federal Register regarding "Security Requirements for Aircraft Operators Certificated Pursuant to 14 CFR Part 125". The Notice requires "aircraft operators using aircraft with a maximum certificated takeoff weight (MTOW) over 12,500 pounds, that are certificated by the Federal Aviation Administration (FAA) under 14 CFR part 125 and that are not currently operating under a TSA security program, to meet the requirements of 49 CFR 1544.101(e) or (f)".

For operations of aircraft with a MTOW of more than 12,500 pounds, the aircraft operator must conduct a search of the aircraft before departure and screen passengers, crew members and other persons, and all accessible property before boarding. For all-cargo operations using an aircraft with a MTOW of more than 12,500 pounds and passenger operations conducted in an aircraft with a MTOW of more than 12,500 pounds and up to and including 45,500 kg (100,309.3 pounds), the aircraft operator will need to comply with the procedures and requirements contained in 49 CFR 1544.101(e) or (f). This will include implementation of a security program that provides for the security of persons and property traveling on flights, designation of an Aircraft Operator Security Coordinator, verification of the identity of flight crew members, security training, and procedures to respond to certain threats. For all passenger operations using an aircraft with a MTOW greater than 45,500 kg (100,309.3 pounds) or with a passenger seating configuration of 61 or more, the aircraft operator must implement the security procedures included in 49 CFR 1544.101(f) and must also screen individuals and their accessible property and provide for the use of metal detection devices and x-ray systems.

Affected aircraft operators can obtain the specific security programs and related security directives from David Bernier, TSA-7, Director of Air Carrier Inspections, Aviation Regulation and Inspection Division, Office of Aviation Operations, Transportation Security Administration HQ, 11th Floor, East Building, 601 South 12th Street, Arlington, VA 22202-4220; telephone (571) 227-2200; facsimile (703) 603-0414; e-mail aircarrierinspection@tsa.dot.gov.

Posted by Greg

FAA Publishes AC For "Integrated Cockpits"

In today's Federal Register the FAA published a Notice of issuance of advisory circular for AC 23-23, "Standardization Guide for Integrated Cockpits in Part 23 Airplanes". AC 23-23 "acknowledges the General Aviation Manufacturers Association (GAMA) Publication 12 'Recommended Practices and Guidelines for an Integrated Flightdeck/Cockpit in a 14 CFR Part 23 (or equivalent) Certificated Airplane' as an acceptable means for showing compliance with applicable requirements for electronic displays in part 23 airplanes." Publication 12 is available for review here. For further information regarding AC 23-23 you can contact Mr. Lowell Foster, Standards Office, ACE-111, 901 Locust, Kansas City, Missouri 64106; telephone 816-329-4125.

Posted by Greg

October 15, 2004

Corporate Tax Bill Removes Benefits Of Sutherland Lumber Aircraft Tax Case

While aircraft manufacturers and others were cheering the extension of the bonus-depreciation deadline included in the American Jobs Creation Act of 2004 (HR 4520)(see yesterday's post), some aircraft owners are mourning the loss of the aircraft expense deductions allowed under the 8th Circuit's Sutherland Lumber case.

Section 102 of the Senate passed bill (S. 1637) amends Code section 274(e)(2) to reverse the result of the Sutherland decision. The amendment limits the deduction for the owner to the amount claimed as compensation or as imputed income (usually at the standard industry fare level "SIFL" rate), rather than the actual cost/expenses of providing the flights. The provision applies to expenses incurred after the date of enactment and before January 1, 2006. You can read the language in Section 102 here.

This legislation follows two previous failed attempts originally cited in my June 29, 2004 post. Unfortunately for aircraft owners, this latest attempt was successful in closing a "loophole" whose aggressive marketing and promotion by others probably led to its demise.

Posted by Greg

October 14, 2004

FAA Issues Certification Advisory Circulars And Maintenance/Inspection Final Policy

The FAA today published several notices in the Federal Register announcing the availability of Advisory Circulars (AC's) relating to aircraft and parts certification. The announcements include:

Advisory Circular (AC) 187-1A, Flight Standards Service Schedule of Charges Outside the United States (AC 187-1A can be found here)

Advisory Circular (AC) 23.629-1B, Means of Compliance With Title 14 CFR, Part 23, Sec. 23.629, Flutter (Although not yet available on the FAA's website, AC 23.629-1B's predecessor, AC 23.629-1A, can be found here)

Advisory Circular 33.19-1, Guidance Material for 14 CFR Sec. 33.19, Durability, for Reciprocating Engine Redesigned Parts (AC 33.19-1 can be found here) and

Advisory Circular 33.27-1, Turbine Rotor Strength Requirements of 14 CFR 33.27 (AC 33.27-1 can be found here

Additionally, the FAA published a notice of final policy relating to Process for Developing Instructions for Maintenance and Inspection of Fuel Tank Systems Required by SFAR 88. This is policy arose out of the TWA Flight 800 crash and can be found here.

Posted by Greg

October 13, 2004

Unfortunate Mechanic Trick

On June 14, 2000, while performing an engine run-up on a DC-9, a Continental Airlines mechanic "drove" the nose of the aircraft into the passenger terminal of the Newark International Airport. The FAA issued an order suspending the mechanic's A & P certificate for violations of FAR 43.13(a) (failure to follow checklist procedures) and FAR 91.13(a) (careless and reckless). The administrative law judge dismissed the careless and reckless charge against the mechanic.

On appeal, the NTSB Board in Administrator v. Klein reversed the admistrative law judge and held that the mechanic's conduct was careless and supported the independent careless and reckless charge (as opposed to a careless and reckless charge that is usually included as a "residual" charge by the FAA). The Board held that the mechanic was not "alert and vigilant" as he was required to be in that situation and that if he had "paid any attention to the cockpit instruments he would have seen the engine power increasing past idle even before the aircraft started to move." In ordering a 60 day suspension, the Board commented that "by the time he figured out what was happening, he was so close that he was afraid for himself and he fell out of his seat when he was trying to work the brakes" and it felt the more egregious error was "that a mechanic in this position would not check the position of the thrust levers and engage the parking brake before starting an engine."

Following procedures and maintaining situational awareness are critical in aviation, whether you are a pilot or a mechanic. Lack of diligence in either of these regards can lead to injuries, damage and/or the loss of your certificate(s). As the Board states, you need to be "alert and vigilant".

Posted by Greg

October 12, 2004

Bonus Depreciation To Extend For One Year

Yesterday, the Senate passed a compromise version of the American Jobs Creation Act of 2004 (HR 4520) which, when signed into law by President Bush, will extend, by one year, bonus depreciation enacted in 2003. The law extends the placed-in-service requirement. As a result, businesses acquiring assets that require a significant lead time from manufacture to delivery, such as aircraft,will have an additional year to order aircraft, take delivery and place them in service. A copy of the conference report for HR 4520 as passed by the Senate is available here.

Posted by Greg

New European Union Regulation Requiring Increased Air Carrier Liability Insurance

If you operate within, into, out of, or over the territory of an E.U. Member State, including its territorial waters, you will be affected by E.U. Regulation 785/2004 on insurance requirements for air carriers and aircraft operators. This Regulation becomes effective April 29, 2005, and is intended to ensure minimum levels of insurance for air carrier liability with respect to passengers, baggage, cargo and third parties. The Regulation specifies minimum insurance limits, based on aircraft weight and seating. The greatest challenge presented by this Regulation will likely be the war risk insurance provisions, especially in this post-9/11 era.

Posted by Greg

October 11, 2004

NTSB Allows A Notice Of Appeal To Serve As An Answer

In a recent NTSB case, the Board reinstated an airman's appeal from an order suspending his pilot certificate for alleged violations of FAR 91.123 (compliance with ATC) and FAR 91.13 (careless and reckless operation). In Administrator v. Ocampo the FAA alleged that the airman taxied onto an active runway while another aircraft was on final approach, contrary to a "hold short" instruction from ATC. Upon receipt of the order of suspension, the airman faxed a "Memorandum for the Office of Administrative Law Judges" to the NTSB offices which specifically addressed the violations alleged in the FAA's order. The NTSB considered this a valid Notice of Appeal.

The FAA then filed its order of suspension with the NTSB as its complaint. However, the airman never filed an answer in response to the FAA's complaint. As a result, the FAA then moved for dismissal of the airman's appeal based upon Board Rule 821.31(b) which provides that an airman's failure to deny allegations in a complaint can be deemed admissions. The law judge subsequently granted the FAA's motion.

On appeal, the airman argued that his Memorandum "responded factually to the allegations in the Administrator's order/complaint and, therefore, 'functioned precisely as an answer would have functioned'". Based upon the specific nature of the airman's Memorandum and the Board's precedent, the Board agreed with the airman holding that the "intent of our rule requiring an answer is 'to ascertain in advance of the hearing the scope and nature of the issues the airman wants to have adjudicated. In this case, respondent's notice of appeal accomplished this purpose".

This case worked out well for the airman because, unlike most cases, the airman specifically addressed the FAA's allegations in his notice of appeal. Typically a notice of appeal simply advises the NTSB that the airman disagrees with the FAA's proposed order. As a result, it is most often better practice for an airman to specifically address (admit or deny) the factual allegations contained in the FAA's complaint within the time allowed by Board rule, rather than simply try to rely upon the airman's notice of appeal. Better to be safe than sorry.

Posted by Greg

October 08, 2004

Proposed Federal Aviation Administration Policy For The Certification Of Restricted Category Aircraft

The FAA today published a Notice of availability in the Federal Register requesting comments on its proposed policy for the certification of restricted category aircraft. The proposed policy will be in the form of an Order prescribing how to certify a restricted category aircraft and "will apply to Aircraft Certification Service personnel, Flight Standards Service personnel, persons designated by the Administrator, and organizations associated with the certification processes required by Title 14 of the Code of Federal Regulations (14 CFR)".

The proposed order prescribes how the FAA certifies restricted category aircraft under FAR 21.25 (type certificates) and FAR 21.185 (airworthiness certificates). It also explains the responsibilities and procedures for the certification of restricted category aircraft and supplements FAA Orders 8110.4B, Type Certification; 8120.2D, Production Approvals and Certificate Management Procedures; and 8130.2E, Airworthiness Certification of Aircraft and Related Products.

Comments must be received on or before November 30, 2004 and should be submitted to: Federal Aviation Administration, Aircraft Certification Service, Aircraft Engineering Division, AIR-100, Room 815, 800 Independence Avenue, SW., Washington, DC 20591. You may deliver comments to: Federal Aviation Administration, Room 815, 800 Independence Avenue, SW., Washington, DC 20591, or electronically to: Graham Long, Federal Aviation Administration, Aircraft Certification Service, at 9-awa-air110-gn12@faa.gov.

A copy of the proposed order is available here.

Posted by Greg

October 06, 2004

From The Lucky To Be Alive Category

According to a recent NTSB Factual Accident Report, on March 12, 2004, a Mooney M20C was flying at 11,000 feet msl, at a point just west of Clovis, NM when it encountered rime icing conditions. After descending to 8,000 feet msl the pilot decided to divert to CVN. The pilot was given vectors for runway 04 and, at approximately 4,400 feet msl, while supposedly "established on the glide slope and localizer", the aircraft struck something, and all radio communication was lost. The pilot initiated a missed approach and, after flying around for an hour, was able to establish intermittant communication with approach control. After receiving vectors to Cannon Air Force Base, the pilot was able to land the aircraft without incident.

According to an FAA inspector who examined the airplane, the bottom of the aft fuselage and empennage contained "braided" scratches similar to scratchesassociated with power transmission line contact. Several areas exhibited burns and "arcing" and the aft fuselage bulkhead and lower tail cone assembly sustained substantial damage. Additionally, upon inspection of the power lines near the approach to runway 04, it appeared that the aircraft had struck the top phase, 14,000 volt, #2 ACSR conductor wire that, at the point where the damage occurred, was approximately 27 feet, 3 inches, above the ground.

The NTSB Probable Cause Report held that the cause of the accident was "the pilot's improper in-flight planning and decision making during an instrument approach resulting in the pilot's intentional descent below approach minimums, and the pilot's failure to maintain obstacle clearance resulting in the in-flight collision with an object."

In my book, the pilot of this aircraft is lucky to be alive. At almost 150 feet below the glideslope, this pilot definitely did more than "sneak a peek". I am not sure if the FAA initiated any enforcement action against the pilot. My guess is that they did. Regardless of whether or not the pilot's certificate was suspended or revoked, hopefully he learned a lesson from this near-fatal incident.

Posted by Greg

October 05, 2004

Inability To Locate Counsel Does Not Excuse Untimely Appeal Of Emergency Revocation Order

A recent NTSB opinion held that an airman's failure to locate legal counsel to represent him is not good cause for the airman's failure to timely appeal an emergency revocation order. In Administrator v. Harris, the airman filed his appeal three days late, five days after he received the Administrator's revocation order. The Administrative Law Judge dismissed the airman's appeal because it was late.

Although the airman argued that his tardiness resulted from his inability to locate legal counsel to represent him, the Board held that this did not justify the airman's failure to advise the Board of his appeal before the deadline. The Board noted that the airman "simply chose to ignore a known deadline for a reason he would have learned, had he called the Board, would not have been sufficient to support an extension of time for the essentially pro forma task of filing a notice of appeal".

This case is just another example of the strict deadline that must be met in order to appeal an emergency revocation order. You either need to locate counsel quickly or submit your notice of appeal on your own to meet the deadline and then locate an attorney to represent you in your appeal.

Posted by Greg

October 04, 2004

Final Rule For Civil Penalty Assessment Procedures Published

The FAA published its Final Rule containing updated civil penalty assessment procedures for those individuals acting as a pilot, flight engineer, mechanic, or repairman, as well as for non-certificated individuals. The revised/new procedures are necessary "because the National Transportation Safety Board now reviews these civil penalty actions and the FAA's existing rules for civil penalty actions are not sufficiently flexible to adequately address the procedural differences that review in a different forum entails."

The Final Rule "adopts procedures under a new section of the FAA's regulations, 14 CFR 13.18, for initiating civil penalty actions adjudicated by the NTSB. It amends existing 14 CFR 13.16 to exclude actions covered under new Sec. 13.18. It adds a new section, 14 CFR 13.14, that lists those provisions that, if violated, may result in a civil penalty being sought or assessed administratively. Section 13.14(c) also states that the amounts of civil penalties are periodically adjusted for inflation under the formula set by Congress in 28 U.S.C. 2461 note. [The FAA] implemented this formula in 14 CFR part 13, subpart H." The Final Rule makes other clarifying changes to part 13 and it also cites and addresses the comments received in response to the Notice of Proposed Rulemaking ("NPRM") that was published on August 5, 994.

For further information regarding the revised/new procedures, contact Joyce Redos, Attorney, Enforcement Division (AGC-300), Federal Aviation Administration, 800 Independence Ave., SW., Washington, DC 20591; telephone (202) 267-3137.

Posted by Greg

October 01, 2004

FAA Proposes Legal Action Against City of Chicago's Meigs Field Closure

In a press release issued today, the FAA announced that it is taking legal action over the 2003 closure of Meigs Field which could result in penalties against the city of Chicago. Too bad it has taken the FAA so long to act. Maybe if they had taken action sooner, Meigs could have been saved. Well, it is nice to know that Mayor Daley may actually suffer some consequences for his underhanded deeds.

For more information about the legal action, you can contact Greg Martin or Tony Molinaro Phone: 202-267-3883 or 847-294-7427 at the FAA's Great Lakes Region office.

Posted by Greg

TSA's Aviation Security Infrastructure Fee To Continue

In a Notice published in the Federal Register today, the Transporation Security Administration ("TSA") informed all U.S. and foreign air carriers that the Aviation Security Infrastructure Fee ("ASIF") paid by them from October, 2004 and moving forward will be "the amount the carrier paid for the screening of passengers and property transported by passenger aircraft in the U.S. during calendar year 2000".

In the meantime, the TSA is considering alternate options for calculating the ASIF. On November 5, 2003, TSA issued a Notice in the Federal Register seeking public comment on whether to reset each carrier's ASIF payment based on market share or another appropriate measure. Although the TSA is currently in the process of considering the comments and proposals submitted in response to the Notice, no decisions have been made.

For further information regarding TSA's security fees, contact Randall Fiertz, Director of Revenue, Office of Finance and Administration, TSA-14, Transportation Security Administration, 601 South 12th Street, Arlington, VA 22202-4220; telephone (571) 227-2323; e-mail TSA-fees@dhs.gov or review the TSA's website.

Posted by Greg

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