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A site devoted to aviation law, safety and security.

August 30, 2007

Service Bulletin Compliance

If you follow this site, you know that I have written a number of articles and posts regarding the thorny issue of service bulletin compliance. The question posed by those faced with the issue is "When do I have to comply with a service bulletin?". The lawyerly answer to the question is, "it depends". Not very satisfying, I know. However, service bulletin compliance truly does depend upon the perspective from which you are analyzing the issue.

To help explain and clarify the service bulletin compliance, I recently prepared a somewhat comprehensive article that appears in the latest edition of the American Bar Association Forum on Air and Space Law's publication, The Air & Space Lawyer. You can read the article here. Although the article may not definitely answer the question for you, I hope it at least gives you a framework from which to formulate your own answer to the question.

Posted by Greg

August 29, 2007

Flying Into Canada After A DWI/DUI Conviction

Living here in Minnesota next to the "Great White North," flights to and from Canada are a daily occurrence. Many of my clients have cabins in Canada. My charter clients fly passengers to the various lodges during the prime Canadian fishing season. One issue that has been discussed with greater frequency lately is the effect a driving-while-intoxicated ("DWI") or driving-under-the-influence ("DUI") conviction has on a person's ability to fly to and from Canada. Depending upon the circumstances, a DWI/DUI conviction could prevent you from flying to Canada. For more information, please read my latest article on the topic here

Posted by Greg

August 10, 2007

ATP Receives 45-Day Suspension For Refusing To Allow Inspection

In Administrator v. Konop, the FAA alleged that the ATP airman violated FAR 121.548 when he refused to allow an FAA inspector access to the cockpit to conduct a flight deck en-route inspection and the airman had the inspector physically removed from the flight because he allegedly believed that the inspector was a security and safety risk. After a hearing, the ALJ determined that the violation had occurred, but he reduced the suspension to 30 days, down from the 45 days sought by the FAA.

On appeal to the Board, the airman argued that the inspector did not properly identify herself or her purpose or obtain the proper authorization for flight deck access. He also argued that the PIC has the emergency authority to exclude anyone from the cockpit in the interests of safety. The Board determined that precedent overruled the first argument because FAR 121.485 does not contain any requirement that an FAA inspector either announce her purpose for riding in the jumpseat or present a copy of the airline’s form authorizing same. Rather, it merely requires that the inspector present her credentials. With respect to the second argument, the Board agreed with and deferred to the ALJ's determination that an emergency situation did not exist. The Board also granted the FAA's appeal and reinstated the 45-day suspension sought by the FAA. The Board held that it was required to defer to the FAA's sanction request and that the sanction request was supported by the FAA's Sanction Guidance Table which recommended a suspension of up to 60 days for the violation.

This is definitely one of those cases where you have to wonder what was truly going on in the background. In light of the facts established at the hearing, the airman must have had some undisclosed reason for denying the inspector access to the cockpit. And, given the penalty the airman had to have known he could face, it must have been pretty important. Hope it was worth it.

Posted by Greg

August 08, 2007

DOT Releases SIFL Rates For Last Six Months Of 2007

The U.S. Department of Transportation has released the Standard Industry Fare Level (SIFL) rates for the six-month period from January 1, 2006, to June 30, 2006. These rates are needed in order to apply the IRS's aircraft valuation formula to compute the value of non-business transportation aboard employer-provided aircraft and impute the income of the employee as required by the Internal Revenue Service Rules Section 1.61-21(g). The SIFL rates for the six-month period from January 1, 2006, to June 30, 2006, are: 0500 miles $ 0.2074 ; 501-1,500 miles $ 0.1581; over 1,500 miles $ 0.1520; and Terminal Charge of $ 37.91.

If you are an employer and an employee or a non-employee guest or family member is flown on your aircraft, the flight is potentially taxable to the individual receiving the ride. The aircraft valuation formula applies on a per-flight, per-person basis and will be calculated using the distance in statute miles from where the individual boards the aircraft to where the individual deplanes.

Posted by Greg

August 02, 2007

Air Freight Forwarder Enters Into Consent Order With DOT Regarding Alleged "Holding Out"

An air freight forwarder today entered into a consent order with the DOT to resolve allegations by DOT that the air freight forwarder had unlawfully held itself out as a direct provider of air transportation. According to the Consent Order the DOT believed that the air freight forwarder had violated 49 U.S.C. 41101 and 41712 and 14 CFR Part 296. DOT also considered the air freight forwarder's unauthorized holding out of air service an unfair and deceptive trade practice and an unfair method of competition in violation of 49 U.S.C. 41712.

The air freight forwarder registered under 14 CFR Part 296 as an indirect air carrier (engaging indirectly in air transportation of property, and using for the whole or any part of such transportation the services of an air carrier or a foreign air carrier that directly engages in the operation of aircraft under a certificate, regulation, order, or permit issued by the Department as specified in 14 CFR 296.3). Part 296 exempts indirect cargo air carriers that comply with its provisions from, among other things, the certificate requirement found in 49 U.S.C. 41101. However, regardless of the exemption, operating, advertising, or otherwise holding out air service without having the requisite economic authority is still considered a violation of 14 CFR 296.10 and 49 U.S.C. 41101.

The Consent Order alleged that the air freight forwarder had held out direct air transportation by sending an e-mail solicitation that included language representative of a direct air carrier. The e-mail allegedly stated that the air carrier had "22 planes based across the country" and it referred to its "fleet...of long-range Falcons...Convairs...and 727's." It also stated that its "new high bypass Falcons fly direct to anywhere in the United States to Mexico” and advised its customers to "remember that we have the ONLY long-range Falcon 20’s aircraft in the industry."

In an attempt to mitigate the DOT's claims, the air freight forwarder changed its advertising to specifically state that it was not operating the aircraft and also advised that it had not intended to hold itself out as a direct air carrier. It also noted that the customers to whom it sent the e-mail would have been aware that it was not operating the aircraft. To resolve the DOT investigation, the air freight forwarder agreed to cease and desist from holding itself out as providing direct air transportation in violation of the cited statutes and it also agreed to pay a civil penalty.

This Consent Order is instructive for indirect air carriers and brokers, whether freight or charter. The DOT will look at all of the circumstances to determine whether someone is "holding out air transportation". Indirect carriers are well advised to review their advertising and marketing to ensure that they will not be viewed as "holding out."

Posted by Greg

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