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A site devoted to aviation law, safety and security.

December 31, 2010

Happy New Year!

Wishing all of my readers, clients and friends a happy new year. Looking forward to an improving aviation industry/market and a prosperous new year.

Also, as we head into the new year, I would appreciate receiving any feedback you might care to share regarding Aviation Law Discussions: What you like. What you don't like. What you would like to see. Etc. You can send your comments to me directly at greigel@aerolegalservices.com.

Thanks.

Posted by Greg

December 30, 2010

IRS Announces 2011 Aviation Excise Tax Rates

If you operate a private or commercial business aircraft you pay Federal Excise Taxes (FET) either on fuel or on the transportation of persons or property. Most private aircraft operations under FAR Part 91 are subject to the fuel tax on non-commercial aviation, while commercial aircraft operations under FAR Part 135 are subject to the tax on transportation of persons or property.

Effective January 1, 2011 the commercial operations excise taxes, adjusted for inflation, will be as follows: the domestic segment fee will be $3.70; the international arrival/departure tax will remain at $16.30; and the tax for Hawaii and Alaska flights (which applies only to departures) will be $8.20; and the tax for domestic commercial air transportation will remain at 7.5 percent.

These rates are valid for air transportation that begins or is paid for no later than March 31, 2011. You should also be aware that the rates may change when Congress finally gets around to passing an FAA reauthorization bill, which will hopefully occur in 2011.

Posted by Greg

December 29, 2010

Another Reason To Log Flight Training Time Precisely

In response to a request from the Aircraft Owners and Pilots Association, the FAA recently issued a clarification of an October 8, 2010 letter of interpretation ("LOI"). The LOI stated that the training for an instrument rating under FAR 61.65(e) does not meet the requirements for aeronautical experience to obtain a commercial pilot certificate under FAR §61.l29. However, the clarification confirms that, as long as the logged instrument flight training indicates that it meets the requirements for both the instrument rating and the commercial pilot certificate, that training can be used to meet the requirements of FAR §61.l29.

The clarification specifically states that "we anticipate that for commercial pilot applicants who already hold an instrument rating, the hours of instrument training used to obtain that rating will meet at least some, if not most, or quite often, meet all the requirements for instrument aeronautical experience as required under §61.129." The clarification goes on to note that the LOI "did not establish an additive requirement for the number of hours of instrument training required to meet the aeronautical experience requirements of §61.129."

Thus, it is important that an airman training for his or her instrument rating and that airman's flight instructor be sure that instrument training is logged to reflect that the training meets both the requirements of FAR 61.65 and FAR §61.l29. This will meet the FAA's requirement that the instrument training used to satisfy the aeronautical experience requirements under FAR §61.l29 is "clearly documented," and it will hopefully avoid any questions about the training’s applicability if the airman later decides to train for his or her commercial pilot certificate.

Posted by Greg

December 27, 2010

U.S. Customs And Border Protection Launches eAPIS Private Aircraft Newsletter

U.S. Customs and Border Protection ("CBP"), in collaboration with NBAA, AOPA and COPA, have launched a monthly newsletter "to provide private aircraft operators with updates and best practices for complying with Advance Passenger Information System ("APIS")." As you may know, CBP published the APIS Final Rule which requires private aircraft pilots or their designees to transmit to CBP electronically via the Electronic Advance Passenger Information System ("eAPIS") the following information:
  • Traveler manifest information for each individual traveling onboard the aircraft;

  • Notice of arrival information; and/or

  • Notice of departure information

CBP must receive this information no later than 60 minutes prior to departure for private aircraft flights arriving in or departing from the United States.

The inaugural December issue of the eAPIS Private Aircraft Newsletter features the following topics:
  1. APIS Regulatory Requirements vs. eAPIS Data Field Requirements – Why are they different?

  2. Submitting of Inaccurate APIS Information – Is it happening?

  3. eAPIS Online Help – Where is it?

  4. CBP User Fee Decals – How do I get a 2011 decal?

You can find the newsletter on NBAA's website here and on AOPA's website here. CBP has additional information on APIS here, as well as information for private aircraft operators here. I recommend that all private aircraft operators flying into or out of the United States take advantage of these resources to make sure they properly comply with the APIS requirements. Failure to properly comply could result in the assessment of significant fines/civil penalties.

Posted by Greg

December 23, 2010

FAA Proposes More Restrictive Interpretation Of Part 135 Flight And Rest Time Regulations

In a Notice of Proposed Interpretation published today, the FAA is proposing to interpret the application of FAR 135.263 and the rest requirements of FAR 135.267(d) to a situation where an operator plans a flight that is anticipated to be completed within a 13.5-hour duty day but, unanticipated delays (e.g. late passengers, late cargo etc.) occur before the last leg of the flight, and these delays would extend the flight beyond a 14-hour duty day if the last leg is completed.

The FAA's current interpretation of these regulations, based upon legal interpretations issued in the 1990's, permits flight crewmembers to take off on flights that were scheduled to be completed within a 14-hour duty period even though circumstances beyond the crewmembers' control extended the actual duty time beyond the permissible 14-hour period. However, this interpretation is inconsistent with its current interpretation of the near identical language in FAR 121.471(g) which would not permit the crewmember's to take off on the last leg of the flight.

The FAA's interpretation of the language of FAR 121.471(g), which was upheld by the U.S. Court of Appeals for the DC Circuit, created an exception to pilot flight time limitations, but did not provide an exception for pilot rest requirements. In the Court of Appeals decision, the Court also stated that "[t]he substance of the rules in FAR Parts 121 and 135 is essentially the same and the rules are likewise interpreted." The FAA's interpretations of FAR 121.471(g) along with the Court of Appeals case have been known as the "Whitlow Letter line of interpretations."

According to the proposed interpretation, "[t]he FAA has determined that it is illogical that the nearly-identical regulatory language in sections 121.471(g) and 135.263(d) is interpreted in two different ways" and "the Whitlow Letter line of interpretations best reflects the FAA's current understanding of the pertinent regulatory language." As a result, under the proposed interpretation, if a flight crewmember knows at the time of departure on the last leg of the flight that he or she has not had the required rest, FAR 135.267(d) would prohibit him or her from departing on the last leg of the flight.

Comments to the proposed interpretation are due on or before January 24, 2011. If you have any questions regarding the proposed interpretation or would like further information, you may contact Alex Zektser, Attorney, Regulations Division, Office of Chief Counsel, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267- 3073; e-mail: Alex.Zektser@faa.gov.

This proposed interpretation could have a potentially significant impact on the operations of Part 135 on-demand air carriers. I encourage all Part 135 operators to submit comments to the proposed interpretation.

Posted by Greg

December 22, 2010

NTSB Requests Comments On Proposed Amendments To Rules Of Procedure

In an Advance Notice of Proposed Rulemaking published today, the National Transportation Safety Board is requesting comments regarding amendments to its rules of procedure for the NTSB's review of FAA certificate actions, as well as rules of procedure concerning applications for fees and expenses under the Equal Access to Justice Act (EAJA).

With respect to its rules of procedure, the Board is requesting comments on the following:
  • Standard for NTSB Review of FAA Emergency Determinations. Whether the Board should alter the standard of review for emergency determinations by removing the language of Section 821.54(e) that provides that the administrative law judge reviewing an FAA emergency determination should assume that the acts and omissions alleged in the FAA's emergency order are true. The Board would also like comments on other aspects of the emergency review process, such as whether a hearing should occur to allow parties to provide evidence concerning whether the case should be treated as an emergency and whether parties should have an opportunity for another level of appeal to challenge the emergency status determination.

  • Discovery and Exchanges of Information by the Parties. Whether the Board should amend its rules governing the discovery process and exchanges of information. For example, such changes could require administrative law judges to issue pre-hearing orders or they could impose specific sanctions for a party's failure to provide information requested in discovery. In addition to these issues, the Board would also like to receive general concerns regarding pre-hearing exchanges of information by the parties.

  • Electronic Filing of Documents. The Board intends to create an electronic filing system for cases involving certificate actions at some point in the future and would like ideas and suggestions on how this might be implemented and how parties acting pro se might avail themselves of the electronic filing process.

With respect to EAJA rules and procedures, the Board plans to update Section 826.40, as well as any other sections within Part 826 that may also be inaccurate. The Board would like comments regarding its proposed amendment and any other proposed amendments to Part 826. Comments should specify the section needing amendment, and provide clear recommendations of the proposed changes along with supporting data and rationale.

However, since 5.U.S.C. 504 governs the applicability of EAJA, the Board warns that it will not attempt to expand this applicability in amending Part 826 nor will it adopt suggestions that are contrary to the Federal Courts of Appeals' interpretations of EAJA. The Board also proclaims that it "does not intend to enact proposed provisions that it believes would not be helpful, would impose an undue burden on the FAA or the EAJA applicant, or would be contrary to any law, regulation, or executive order."

Comments are due on or before February 22, 2011. Additionally, if you have questions or would like additional information regarding the proposed amendments, you may contact the NTSB's general counsel, Gary Halbert, at (202) 314-6080.

This is a great opportunity to try and level the playing field, although realistically I don't know that it will ever be "level." However, the proposed amendments will certainly be favorable for certificate holders. Additionally, this is a chance to suggest amendments to other rules that would make the process easier and more fair for certificate holders. I encourage all attorneys practicing before the Board and anyone else with an interest in a fair appeal process for certificate actions to submit their comments and suggested amendments by the due date.

Posted by Greg

Bonus Depreciation For Qualifying Aircraft Purchases Is Extended

The Tax Relief, Unemployment Insurance Reauthorization, and Jobs Creation Act of 2010 was recently signed into law and the Act includes a temporary increase of the bonus depreciation for investments in new business equipment. This includes new aircraft, engines etc. For investments put in service after September 8, 2010 and until December 31, 2011, 100 percent bonus depreciation is available. Fifty percent bonus depreciation is available for investments put in service after December 31, 2011 and until December 31, 2012.

Hopefully this will provide some needed stimulus for the general aviation industry.

Posted by Greg

December 21, 2010

Good News For Post-9/11 Veterans And Part 141 Flight Schools

The Post-9/11 Veterans Educational Assistance Improvements Act of 2010 has been passed by Congress and will allow veterans who have served three years on active duty since 9/11/2001 to receive funding for educational programs including flight training, certificate programs, apprenticeships, on-the-job training, and correspondence training. Previously such funding was only available for programs at institutions of higher learning (e.g. universities, colleges etc.), which did not include flight schools, Part 141 or otherwise, that were not associated with a qualifying institution.

The bill provides that the maximum amount of assistance paid on behalf of a veteran enrolled in a flight training program would be the lesser of $10,000 annually or the actual cost of in-state tuition and fees. Flight training courses must be approved by the FAA, and be offered by a "a certified pilot school that possesses a valid FAA pilot school certificate" (e.g. a Part 141 certified flight training facility). Assuming funding is authorized for the Act, educational benefits would become available to eligible veterans in August 2011.

Hopefully this will provide more opportunities for eligible veterans and will help increase student enrollment for Part 141 flight schools.

Posted by Greg

December 14, 2010

Restricted Areas Are Not Always Off Limits To VFR Pilots

On November 23, 2010 the FAA's Office of the Chief Counsel issued a Legal Interpretation to a representative of the Society of Aviation and Flight Educators, Inc. ("SAFE") which addresses VFR operations within a restricted area.

As you may know, FAR 73, Subpart B designates restricted areas and prescribes limitations for operating within those areas. Specifically, FAR 73.13 precludes operation within a restricted area unless permission has been received from the using agency (FAR 73.15) or the controlling agency (FAR 73.17).

However, according to the interpretation, "a clearance is not required to operate VFR through a restricted area when the controlling or using agency, as applicable, has made a determination that the restricted area is 'cold'." This conclusion assumes that the operator has contacted the controlling or using agency (usually via radio on the frequency identified on the applicable Sectional chart) and been advised the the restricted area is "cold". It is also important to note that the controlling or using agency's communication that the area is "cold" is not a clearance.

Thus, if the restricted area isn't in use, VFR operations may be conducted in the area. Depending upon the size and location of the restricted area, this could save an operator both time and money.

You can locate other legal interpretations issued by the Office of the Chief Counsel on the FAA's website here.

Posted by Greg

December 13, 2010

Expungement: Having The Bad Stuff In Your Airman Record Removed

I was recently asked how long "bad stuff" stays in an airman's FAA record; "bad stuff" meaning accidents, incidents and enforcement actions. Well, most information stays in the file unless it is removed (also known as "expunged"). Certain information will automatically be expunged by the FAA according to the following timeline:
  • Warning Notice or Letter of Correction - 2 years from the final action date

  • Certificate Action resulting in Order of Suspension - 5 years from the final adjudication date

  • Certificate Action resulting in Order of Revocation - Never

  • Civil Penalty - 5 years from the final adjudication date

  • Accident or Incident - 5 years from the date of the occurrence or event

However, if an airman is subject to another enforcement action before the previous action has been expunged, neither will be expunged until 5 years after the final adjudication date for the last action. Similarly, if an airman is involved in an accident or incident before a previous accident or incident has been expunged, neither will be expunged until the airman has been accident or incident free for 5 years.

For more information relating to information maintained by the FAA in an airman's record, you can review my article on the subject, What Will The FAA Say About You, or an FAA document titled Information Provided By PRIA, FOIA, and The Privacy Act.

Posted by Greg

December 09, 2010

A Request To "Stay" An NTSB Order Must Be Timely

When the NTSB enters an order against a certificate holder, that order will have a date upon which the order will take effect (the "effective date"). In the case of a suspension, the effective date would be the date upon which the suspension begins.

If the certificate holder is unhappy with the NTSB's order, the certificate holder has the right to appeal that order to the United States Court of Appeals. However, processing such an appeal will take up to, and often more than, a year. In the meantime, the NTSB order will take effect on its effective date unless the certificate holder requests a "stay" of the order.

In order to obtain a "stay" of the order, 49 C.F.R. 821.64(b) requires the certificate holder request the stay before the effective date of the NTSB order. If the "stay" is not requested in time, the request will be denied, as it was in the recent case of Administrator v. Turmero.

In Turmero, the Board received the mechanic's request for a "stay" two days after the effective date of the order affirming a 90-day suspension of airman's airframe and powerplant certificate, with inspection authorization. Without any discussion, the Board rejected the request for a stay.

As with other timing requirements for filing documents with the Board, failure to comply almost always results in bad consequences for the certificate holder. In this case, the suspension of the mechanic's certificate will have run long before the mechanic's appeal is heard by the Court. Unfortunately, that removes most of the incentive for continuing with an appeal.

Posted by Greg

December 08, 2010

NTSB Reverses Mechanic's Suspension Based Upon FAA Failure To Prove That Aircraft Was Unairworthy At Time Of Inspection

In a recent opinion, the National Transportation Safety Board ("NTSB") reversed an administrative law judge's ("ALJ") decision to suspend a mechanic's airframe and powerplant certificate. In Administrator v. Roberts the FAA alleged that the mechanic performed maintenance on a Gulfstream II and then returned the aircraft to service as airworthy when the aircraft was not in an airworthy condition because it had fuel leaks that were not repaired in an acceptable manner. The FAA also alleged that the mechanic failed to adequately describe the maintenance he performed in his entry in the aircraft's logbook

The FAA ordered a 120–day suspension of the mechanic's certificate for violations of FARs 43.13(a) (requiring that each person performing maintenance, alteration, or preventive maintenance on an aircraft to use the methods, techniques, and practices prescribed in the current manufacturer’s maintenance manual, or other methods, techniques, and practices acceptable to the Administrator) and 43.9(a)(1) (requiring persons maintaining, performing preventative maintenance, rebuilding, or altering an aircraft to make entries in the maintenance record that contain a description of the work performed).

The mechanic appealed the FAA's order to the NTSB and, after a lengthy evidentiary hearing, the ALJ determined that the mechanic failed to make a logbook entry documenting fuel leaks that the FAA alleged existed at the time of his inspection. However, the ALJ refused to find the aircraft unairworthy because the FAA did not prove the leaks that were later repaired, or the leaks the FAA alleged were present during the mechanic's inspection of the aircraft, exceeded the limits contained in the Gulfstream Maintenance Manual ("GMM"). As a result, the ALJ concluded the FAA presented sufficient evidence to prove respondent violated FARs 43.13(a) and 43.9(a)(1), but he reduced the sanction from a 120–day to a 60–day suspension because the FAA failed to prove the aircraft was unairworthy when the mechanic returned it to service.

On appeal, the Board reversed the ALJ's decision. The Board observed that neither of the FAA inspectors who testified at the hearing were present during the mechanic's inspection and, as a result, they did not observe the aircraft leaking on that date nor did they measure the rate of any leak under the requirements of the GMM. Accordingly, the Board held that the FAA did not meet its burden of proving that any maintenance or logbook entry was required or that the aircraft was unairworthy when the mechanic returned it to service.

This is one of those cases where the FAA should have known better than to pursue the case. However, the FAA's actions make some sense when you know some of the background that isn't discussed in the opinion. The mechanic in this case was employed by Darby Aviation, one of the companies involved in the 2005 Teterboro Challenger accident and subsequent enforcement actions and criminal prosecutions which instigated the FAA's current "operational control" rampage. And this isn't the first case in which the FAA has initiated enforcement action against Darby Aviation and lost.

Maybe now, with another loss under its belt, the FAA will do a little better job of selecting which enforcement cases to pursue. Wishful thinking, I know.

Posted by Greg

December 07, 2010

FAA Maintains Percentage Rates For Random Drug And Alcohol Testing Of Safety-Sensitive Employees

In a Notice published today, the FAA stated "that the minimum random drug and alcohol testing percentage rates for the period January 1, 2011, through December 31, 2011, will remain at 25 percent of safety-sensitive employees for random drug testing and 10 percent of safety-sensitive employees for random alcohol testing." Since the reported random drug test positive rate for 2009 was less than 1.00% (it was actually 0.534%) and the minimum random alcohol test rate for 2009 was less than 0.50% (it was actually 0.088%) the FAA may continue the current rates for calendar year 2010. Interestingly, both of these actual rates are lower than the reported rates for 2008.

For further information regarding the annual random testing percentage rates you should review FAR Part 120.109(b) (for drug testing), and FAR Part 120.217(c) (for alcohol testing) or you may contact Mr. Kevin Kearns, Office of Aerospace Medicine, Drug Abatement Division, Program Analysis Branch (AAM-810), Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-8442.

Posted by Greg

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