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November 28, 2004

When Bad Things Happen To Good Aircraft Buyers

Have you ever heard horror stories about someone purchasing an aircraft only to later have to fight with someone else over who is the rightful owner? Or how about when a third-party attempts to enforce a lien against an aircraft for an obligation for which the previous owner was responsible? Perhaps you are someone who is just interested in purchasing an aircraft.

If you answered yes to any of the above, you may find my new article regarding aircraft title problems interesting. The article identifies some of the title problems that can arise and some steps you as an aircraft buyer can take to limit the risk of you having title problems after an aircraft purchase.

Posted by Greg

November 23, 2004

Passenger Air Transportation Tax To Increase For 2005

Revenue Procedure 2004-71 was recently published by the IRS establishing the passenger air transportation tax rates for 2005 as follows: domestic segment fee ($3.20); international arrival/departure tax ($14.10); and international arrival/departure tax for Hawaii or Alaska flights ($7.00). The 7.5% percentage excise tax that applies to the amount paid for domestic commercial transportation will remain the same.

Posted by Greg

November 18, 2004

Federal Judge Finds FAA 65% Responsible For Florida Crash

In yet another example of plaintiffs' attorneys throwing whatever they can at the wall to see what will stick, a federal court judge in Florida has found the FAA 65% to blame for the crash of a PA-31 back in December, 2001. A Channel 4 News Article in Jacksonville reported the judge's decision after a bench trial (where the judge decides the facts without a jury). Apparently the judge held that the FAA air traffic controllers failure to provide the pilot with current weather conditions was 65% responsible for the crash.

The NTSB Factual Report indicates that the pilot obtained a flight service briefing before departing on an instrument flight rules trip from Ft. Lauderdale Executive Airport to Augustine, FL, with Craig Airport listed as his alternative. The pilot subsequently took off, missed his approach into Augustine, diverted to Craig Airport and then missed his approach there. He then went to Jacksonville International and missed his approach to that airport. While executing the missed approach at Jacksonville, the aircraft crashed.

Apparently the issue at trial was whether the Jacksonville ATC controller provided the pilot with the current ATIS information that indicated a 100 foot ceiling and 1/4 mile visibility. However, the NTSB Probable Cause listed the cause of the accident as "[T]he pilot becoming spatially disoriented and losing control of the airplane during a missed approach resulting in the airplane descending uncontrolled and colliding with trees and the ground." The weather at Jacksonville was not included as a cause or factor.

In my opinion, the NTSB was right and the federal judge was wrong. Unfortunately for the FAA, the plaintiff's attorney was able to confuse the judge with the issue of whether the pilot was provided with the current weather. I haven't read the judges opinion, but the weather issue appears to have distracted the judge from the real issue: that the pilot simple lost control of his aircraft while trying to execute a missed approach. The NTSB report provides no indication that low fuel was a factor in the pilot choosing Jacksonville over some other alternate or that the published missed approach procedure was inaccurate. Also, there is no indication of hazardous weather such as icing or thunderstorms.

Absent such circumstances, I am not sure how a pilot's failure to properly execute a missed approach procedure can be blamed on an alleged failure to provide the current weather. Looks to me like the plaintiffs just got lucky and managed to get an incorrect theory to stick to the wall.

Posted by Greg

November 16, 2004

Second-In-Command Type Rating Proposed By FAA

The FAA today published a Notice of Proposed Rulemaking in the Federal Register that proposes a Second-In-Command Type Rating. The rule is intended to "conform the FAA pilot type rating requirements to the International Civil Aviation Organization (ICAO) pilot type rating standards" and "to allow U.S. flight crews to continue to operate in international airspace without the threat of being grounded for not holding the appropriate pilot type rating."

Currently, the ICAO requires type ratings for SIC pilot crewmembers whereas the FAA does not. The FAA simply relies upon the initial and annual recurrent training an SIC pilot crewmember receives. Unfortunately, many European countries do not consider the FAA's view sufficient and they have indicated that they will require an SIC pilot crewmember to have a type rating for operations in their countries.

Under this NPRM, the FAA is proposing to revise the regulations to allow for the issuance of an SIC type rating for use in international airspace where the foreign country in which the SIC is operating requires an ICAO SIC type rating. However, the FAA will continue to take the position that an SIC type rating is not required for operations in U.S. airspace.

In a nutshell, the SIC will need to receive familiarization training from a qualified pilot in command or authorized certified flight instructor who holds the applicable type rating. Upon completion, a logbook entry will be made in the SIC's logbook indicating that the training was successfully completed. The SIC then completes an FAA form 8710-1 and presents it to the local FSDO or a designated examiner who reviews the logbook entry and signs the 8710-1. No checkride or practical test is required. The SIC then simply presents the 8710-1 to the FSDO for processing. For more detailed information regarding the process, please read through the procedures listed in the NPRM.

You can review the docket for this NPRM or submit comments electronically here. Alternatively, comments may be mailed to Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001, faxed to1-202-493-2251 or hand delivered to Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC. Comments are due no later than December 16, 2004.

Posted by Greg

November 12, 2004

Lack Of Entry In Aircraft Logbook Does Not Support Charge of Falsification

In a October 4, 2004 decision, the NTSB Board upheld a dismissal of a charge that a certificate holder made a false or fraudulent entry in an aircraft logbook in the absence of any proof that a logbook entry was made for maintenance performed. In Administrator v. Tarascio, the FAA issued an emergency order of revocation alleging that the certificate holder violated FAR's 43.12(a), 91.13(a) and 91.7(a) for operating aircraft that allegedly had maintenance discrepancies even though the aircraft logbooks contained no entries detailing the alleged discrepancies.

At the hearing, the FAA was unable to show that the certificate holder operated any specific aircraft when it had a maintenance discrepancy rendering the aircraft un-airworthy. Rather, the FAA simply argued that an aircraft must be deemed un-airworthy whenever it is operated when maintenance work has not been recorded in the aircraft's logbook. The FAA suspected that the aircraft were un-airworthy despite the return to service certifications logged for each aircraft. However, the FAA failed to submit any evidence regarding the un-airworthiness of any of the specific aircraft.

Based upon the lack of evidence, the administrative law judge dismissed the FAA's complaint against the certificate holder holding that "a failure to make an entry would not support a charge under section 43.12(a), as that regulation only forbids intentionally false or fraudulent entries." In affirming the dismissal, the Board noted that the FAA charged the certificate holder in effect with a failure to honestly record maintenance or allow it to be recorded by others, when the FAA's charges more appropriately should have been that the certificate holder breached his maintenance logging obligations such as those required under FAR 43.9.

As this case shows, to prove a violation of FAR 43.12(a), the aircraft logbook must contain an actual entry that is false or fraudulent. The absence of entries in the aircraft logbook will not support a charge of violation of this FAR. However, this case should not be viewed as an incentive not to make logbook entries. As the Board noted, other FAR's dictate maintenance logging duties and obligations. It appears in this case that the FAA simply failed to charge violations of the appropriate FAR's. The FAA will likely be more careful to avoid such errors in the future.

Posted by Greg

November 10, 2004

FSS Briefer's Failure To Provide Notam Info To Pilot Results In Dismissal Of FAA Enforcement Action For Airspace Violation

In a recent FAA enforcement case, the NTSB affirmed its position that a pilot cannot be subject to sanction for his violation of a temporary flight restriction when that information was not provided to the pilot in a FSS briefing and was otherwise unavailable to the pilot from other sources. Administrator v. Dress arose out of a pilot's incursion into the Camp David prohibited airspace (P40) shortly after September 11, 2001 after a FSS Briefer allegedly failed to provide the pilot with the Notam information regarding expansion of P40 from a 3 mile radius to an 8 mile radius.

At the hearing, the pilot, a certified flight instructor, provided testimony that his student had called FSS and was not told about the Notam expanding the area of P40. Unfortunately, the FAA did not preserve the tape of the briefing which would have either corroborated or contradicted the pilot's testimony. As a result, the FAA was only able to present testimony regarding the process a briefer goes through in obtaining and disseminating Notam info and to argue that the official acts of public figures (FSS Briefers) are entitled to a presumption of regularity.

The administrative law judge found the pilot's and his student's testimony credible and dismissed the alleged violation of FAR 91.13, but affirmed the administrator's claims of violations of FAR's 91.103 and 91.141. On appeal, the NTSB Board dismissed the administrator's complaint holding that the pilot could not be held responsible for Notam information not otherwise available when that information was not provided to the pilot in a FSS briefing.

In its holding, the NTSB took shots at both the pilot and the FAA. It felt the FAA was not as diligent as it should have been in preserving the FSS tape given "the heightened security concerns associated with violations of prohibited airspace following the events of September 11, 2001, and the seriousness with which FAA and law enforcement agencies address such violations". Additionally, after the FAA admitted that it takes approximately 20 days for information about a potential enforcement case to reach the appropriate FSDO, it questioned "the utility of a policy of retaining briefing tapes for a period of time that is too short to serve the best interests of either airmen or the administrator in the enforcement context".

"With respect to the pilot, the Board felt that in light of the student's inexperience and the highly-charged nature of airspace security concerns that prevailed in the aftermath of September 11", the pilot should have independently verified the information provided to the student by the FSS Briefer. This is consistent with my recommendation to all pilots that FSS be consulted prior to all flights, even if the call is only to confirm the status of TFR's for the intended route of flight. As this case shows, if you ask for airspace Notam information that is not otherwise available and it isn't provided to you, it is most likely that you will not be held responsible for any violation.

Posted by Greg

November 08, 2004

TSA Flight School Security Awareness Training Available Online

In connection with its Alien Flight Training Rule, the TSA has made its Flight School Security Awareness Training available for download from its website. This training is required of all flight school employees who have direct contact with students (including flight instructors, ground instructors, chief instructors, and administrative personnel who have direct contact with students). Current flight school employees must complete the free training no later than January 18, 2005, and employees hired after that date must complete the training within sixty days of their hire. The training is contained in a 40 Mb download available here. Instructions on how to get a free copy of the CD-ROM containing the training will be posted on the TSA website as soon as they are available or you may contact the help desk at 703/542-1222.

Posted by Greg

November 02, 2004

Glider Towing To Become Restricted Category Special Purpose Flight Operation

Under a Notice of Availability and Request for Comment published today by the FAA, glider towing would become a restricted category special purpose operation. The FAA is proposing a policy that would "include the flight operation of glider towing as a restricted category special purpose operation under 14 CFR 21.25(b)(7). A copy of the proposed policy memo is available from the FAA here.

Currently, glider towing is not a restricted category operation and as such, glider towing may only be accomplished with type certificated aircraft in the normal, utility and acrobatic categories. The policy is "intended to increase the number of tow aircraft available to glider clubs throughout the country, by making available to them aircraft that are currently certificated for other uses, such as agricultural spraying".

Comments must be received no later than November 30, 2004 and may be submitted via U.S. Mail to: Federal Aviation Administration, Aircraft Certification Service, Aircraft Engineering Division, Certification Procedures Branch, AIR-110, Room 815, 800 Independence Avenue, SW., Washington, DC 20591, ATTN. Mr. Graham Long; or hand delivered to: Federal Aviation Administration, Room 815, 800 Independence Ave, SW., Washington, DC 20591. Mr. Long may be contacted for further information via Telephone: (202) 267-3715, Fax: (202) 237-5340, or e-mail:9-AWA-AIR110-GNL2@FAA.GOV.

Posted by Greg

November 01, 2004

U.S. Ratifies Cape Town Convention

According to an article in The Monitor, last Thursday the U.S. Ambassador "deposited the instrument of ratification for the treaty and the accompanying aircraft protocol with UNIDROIT, the international organization based in Rome, Italy, that is the depositary of the Cape Town Convention and aircraft protocol". The treaty is expected to reduce certain risks and provide greater certainty with respect to cross-border sales, financings and leases of large commercial aircraft and aircraft engines.

The treaty went into force on April 1, 2004 and following ratification of the aircraft protocol by 8 countries, it will become effective as applied to aircraft and aircraft engines. Of the 28 countries that have signed the treaty, 5 have completed the ratification process.

More information on the convention is available from UNIDROIT'S website here.

Posted by Greg

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