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January 27, 2006

FAA To Hold General Aviation Summit On Aging Aircraft

The FAA today published a Notice of its intent to hold a public meeting on the subject of the continued airworthiness of the U.S. general aviation fleet of aircraft. According to the FAA, "[t]he purpose of the meeting is to gather information and discuss technical issues related to problems associated with the increasing average age of the general aviation fleet" with particular emphasis on "actions that have potential to mitigate the inevitable effects of fatigue, corrosion, and deterioration on aging general aviation airplanes."

The meetings are a response to the GA fatal accidents that have been caused by the effects of airplane aging as well as primary component failures caused by the effects of airplane aging that were discovered before catastrophic failure. The FAA intends to take "a more proactive role in managing the risk associated with continued airworthiness" and it "is concerned about issues such as service difficulty experiences and reporting, modification and inspection programs, and continued field support from type certificate holders.

The Notice states that "[t]he FAA anticipates that the agency, industry, and the general public will use the public meeting as a forum to share information, resolve questions, and discuss potential solutions concerning the continued airworthiness of older general aviation airplanes." It is nice to see the FAA taking this approach. Rather than unilaterally issuing regulationst, least it is actively soliciting comment and participation regarding the issue. This isn't to say that the FAA will necessarily accomodate all affected parties' if, or rather, when it does issue regulations. However, perhaps with industry input, any regulation will address this safety issue in a fair manner with minimal undue burden on those affected.

The meetings will be held March 22-23, 2006, starting at 8 a.m. each day, in Kansas City, Missouri at the Doubletree Hotel Overland Park, 10100 College Blvd., Overland Park, Kansas, United States, 66210. If you are unable to attend either of the meetings, you may submit comments on the issue to Federal Aviation Administration, (FAA), Central Region, Small Airplane Directorate, Attention: Mr. Marv Nuss, 901 Locust, Room 301, Kansas City, Missouri 64106. If you would like further information regarding the meetings or this issue, you may contact Mr. Marv Nuss, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:(816) 329-4117; facsimile: (816) 329-4090; e-mail: marvin.nuss@faa.gov.

Posted by Greg

January 26, 2006

Prosecution Policy For Carrying Weapons Or Explosives Aboard Aircraft

Do you ever wonder what happens to someone who attempts to clear a security checkpoint at an airport but is caught with a weapon or other prohibited item? Believe it or not, not all of the persons who are caught are prosecuted. According to the United States Attorney's Manual ("USAM"), a large number of people have been caught attempting to board aircraft with deadly or dangerous weapons concealed on the individual's person or contained in accessible property in violation of 49 U.S.C. § 46505. However, not all of these individuals have been prosecuted.

The USAM sets forth guidelines in Section 9-63.161 that are to be considered by a U.S. attorney in determining whether an offense will be prosecuted. "Aggravated" cases are to be "vigorously investigated and criminally prosecuted." Examples of these cases include where an individual has used obvious and deliberate measures to preclude detection of a concealed weapon on his/her person or in his/her carry-on baggage; or where evidence available indicates that the individual intended to use the weapon in the commission of an offense; or where the weapon is any type of explosive or incendiary device.

In situations that are not "aggravated" and involve "mitigating factors", the U.S. Attorney can decline federal criminal prosecution. These factors include when an individual who is not a law enforcement officer, but who nevertheless possesses a valid permit to carry a weapon; or when an individual has no serious criminal records, and the circumstances surrounding the offense are clearly extenuating in nature; or when an individual possesses items which are normally and acceptably used for a noncriminal purpose and which are only marginally of a deadly or dangerous character.

The U.S. attorney will refer "unaggravated" weapons violations to State or local authorities but, if they are unwilling or unable to prosecute a weapons offense involving a firearm, the U.S. Attorney can pursue a civil penalty pursuant to 49 U.S.C. § 46303. In this situation, the case is referred to the FAA for prosecution of a civil penalty action. This is similar to a certificate action except the penalty sought is a fine rather than a suspension or revocation of an FAA issued certificate. The amount of the fine will vary depending upon the circumstances of the violation.

It is important to understand that a civil penalty action is one of strict liability. This means that if you committed the act, your lack of improper motive or intent is not a defense. As with most prosecutions, whether or how a case is prosecuted still involves prosecutorial discretion. Thus, the likelihood of an individual caught carrying weapons or explosives being prosecuted will be subject to the U.S. Attorney's view of the facts and circumstances taking into consideration the guidelines contained in the USAM.

Although the majority of cases are referred for civil penalties, at the end of the day, getting caught for this type of violation will cost you, one way or another. Better to be safe than sorry. If you are unclear about what types of items are prohibited, you can review a list of the items on the TSA's website here.

Posted by Greg

January 25, 2006

Recording Aircraft Related Documents With The FAA

Whether you are an aircraft owner, an aircraft lender or anyone else asserting an interest in an aircraft, in most situations you will need to record at least one or more documents with the FAA in order to protect your interest. Failure to file can result in you losing your interest in the aircraft to someone else. For more information regarding the procedures and requirements for filing documents with the FAA, please read my new article on the topic here.

Posted by Greg

January 24, 2006

FAA To Conduct Survey Of Human Factors In Maintenance Organizations

The FAA today published a Notice and request for comments relating to its intent to conduct a suvey of Part 145 maintenance organizations regarding the human factors elements of part 145 including training, error management, fatigue management, to name a few. According to the Notice, "Part 145 organizations will receive an invitation via e- mail to complete a web-based survey. The information collected will be used to assess what companies have done, are doing or are planning to do regarding the human factors elements of part 145" and what they do in support of their human factors program. The FAA intends to collect the data from an anticipated 1,080 companies world-wide.

Comments to the Notice should be submitted by February 23, 2006 to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention FAA Desk Officer. If you would like further information regarding the Notice or the proposed survey, you may contact Judy Street at (202) 267-9895.

Posted by Greg

January 20, 2006

Deadline For Updating Aircraft Registration Info Approaches

As discussed in my December 13, 2006 post, the February 1, 2006 deadline is approaching for aircraft owners to check their aircraft registration records online with the FAA Registry to ensure the accuracy of the information and to update the information if necessary. The FAA and TSA believe that national security and aviation safety require this action because it will somehow to ensure that only properly registered aircraft operate within the national airspace. I am not so sure I concur in this assessment, but I would agree that having accurate information in the registry is a good idea.

According to the December 9, 2006 Notice, after February 1 "operators of identified aircraft with questionable registrations and or no TSA required security measures/waivers will be: (1) Notified of the deficiency, (2) a pilot deviation will be filed on the operator, (3) operator may be denied access to the NAS. In the event the operator is not the owner, the operator and owner will be notified of the deficiency and both will be subject to any action deemed warranted by the agency in accordance with local, state and federal regulations."

Although most aircraft registration information is current, aircraft owners whose aircraft registration information may be inaccurate could face enforcement ation if the information is not updated as required by February 1. If you own an aircraft, make sure you confirm that your aircraft registration is accurate. The minimal time required could potentially save you the aggravation of having to respond to the FAA if for some reason the information currently on file for your aircraft is not accurate.

Posted by Greg

January 17, 2006

Lender Repossession Insurance, Or Take The Risk?

I was recently asked about the risks associated with airline financing secured by aircraft located in foreign countries. The questions boiled down to the issue of whether the lender is willing to accept the risk of potentially being unable to repossess the aircraft securing the financing or whether the lender would rather purchase an insurance policy to insure against that risk.

My answer to the question was that regardless of which situation is presented, either the lender or the insurer will need to perform an underwriting analysis to determine how significant the risk may be. Since the risk varies from country to country, a written legal opinion from an independent lawyer expert in the particular country should be obtained. The legal opinion should discuss the regulations in force at inception of the policy relating to the titleholders rights under the laws of the particular country and it should also confirm that the lender's interests and title have been fully registered.

Additional underwriting analysis will include review of the loan documents and lease, the political and economic stability of the country, the laws in force, the perception of the local judicial system, the type of aircraft, routes operated, the financial condition of the airline, and past experience of the lender, airline and country.

Another thing to consider will be whether the country has ratified the Cape Town Convention. Although many countries have not ratified it yet, if a country does ratify the Convention, this will remove a great deal of uncertainty and will increase a lender's willingness to provide financing.

If a lender determines that it does not want to assume the risk and potential financial loss it will incur if it is unable to repossess its aircraft collateral, repossession policies are available through Lloyds of London and other larger insurers. The coverage is typically referred to as the "LSW147" repossession coverage.

At the end of the day, the decision will still be whether the lender wants to "self-insure" and assume the risk that it may not be able to successfully repossess an aircraft in the event of default, or whether it would rather pay an insurance premium to purchase a policy that will provide coverage in the event that it is unable to successfully repossess its collateral.

Posted by Greg

January 11, 2006

FAA Withdraws Supplemental Oxygen Direct Final Rule

The FAA today published a Withdrawal of the supplemental oxygen final rule it previously published on November 10, 2005. The November 10, 2005 direct final rule, applicable to Part 121 operations, changed the flight-level requirement at which a flying pilot must use his or her oxygen mask when the other pilot leaves the cockpit. The final rule increased the altitude from above flight level 250 to above flight level 350.

However, after the final rule was published, the NTSB filed an adverse comment stating that the data upon which the final rule was based did not accurately represent the useful-consciousness and pilot performance in real-life decompression situations. The NTSB asked the FAA to withdraw the rule. The FAA agreed and, as a result, effective January 6, 2006 the previously published direct final rule was withdrawn.

Interestingly, this was a "direct" final rule which means that it was not preceded by a published notice of proposed rulemaking. Thus, in this situation the FAA did not receive public comment to a NPRM prior to issuing the final rule. This sure makes me wonder where the FAA obtained the data upon which it relied and whether anyone at the FAA conducted a meaningful and objective review of the data before issuing the final rule. Unfortunately, the answer to my questions and "the rest of the story" will likely remain undisclosed.

If you would like further information regarding withdrawal of the final rule, you can contact Timothy Adams, Airmen and Airspace Rules Division (ARM-100), Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; Telephone No. (202) 267-9680.

Posted by Greg

January 10, 2006

Disposition Of Petitions For Exemption Will No Longer Be Published

According to a Final Rule published in the Federal Register today, the FAA will no longer publish dispositions of petitions for exemptions in the Federal Register. Currently the FAA notifies a petitioner in writing regarding the disposition of a petition for exemption and then the FAA also publishes the disposition in the Federal Register. However, now the FAA feels that "[p]ublishing dispositions in the Federal Register is unnecessary because petitioners are notified in writing of FAA's decision and the decision is placed in the public docket, which is internet accessible and searchable." It will also save on the cost of publication.

Although all of this may be true, reviewing and searching the public docket for exemption petitions and their disposition is more cumbersome than simply reviewing the Federal Register's daily table of contents. Thus, the FAA may be making things easier for it, but it is certainly not doing the interested public any favors.

If you would like more information regarding this final rule, you can contact Ida Klepper, Airmen and Airspace Rules Division, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591. Telephone: (202) 267-9677.

Posted by Greg

FAA Publishes Drug Testing Final Rule

The FAA today published its Final Rule regarding Antidrug and Alcohol Misuse Prevention Programs for Personnel Engaged in Specified Aviation Activities. The final rule "amends the FAA regulations governing drug and alcohol testing to clarify that each person who performs a safety- sensitive function for a regulated employer by contract, including by subcontract at any tier, is subject to testing." It also rescinds all prior guidance on the subject of testing contractors in order to clarify the FAA's previously issued conflicting guidance about which contractors were subject to drug and alcohol testing.

According to the FAA, "[t]his final rule does not expand the scope of the FAA-regulated drug and alcohol testing programs. Rather, it clarifies that any individual who performs a safety-sensitive function by contract must be subject to the FAA-regulated drug and alcohol testing requirements, regardless of the tier of the contract under which the individual performs. This rulemaking is not questioning or expanding the current outsourcing process. Instead, the final rule eliminates any confusion that might have existed regarding drug and alcohol testing of subcontractors who are connected to the regulated employer through the outsourcing process." The final rule contains a lengthy discussion of the comments received in response to the previously published Notice of Proposed Rulemaking and the FAA's justifications for the final rule as published.

The amendments contained in the final rule become effective April 10, 2006. However, compliance with the information collection requirements in part 121, Appendix I, Section IX, and Appendix J, Section VII, until the FAA publishes in the Federal Register the control numbers assigned by the Office of Management and Budget (OMB) for the information collection requirements.

If you would like further information regarding the final rule you should contact the following: For technical information, Diane J. Wood, Manager, Drug Abatement Division, AAM-800, Office of Aerospace Medicine, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591, telephone number (202) 267-8442; and for legal information, Patrice M. Kelly, Senior Attorney, Regulations Division, AGC-200, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591, telephone number (202) 267-8442.

Posted by Greg

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