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January 27, 2012

Independent Violation of FAR 91.13(a) Requires Specific Proof

Recently the NTSB remanded a case back to the administrative law judge ("ALJ") for a hearing on an independent charge of violating FAR 91.13(a) (careless and reckless). In the case, Administrator v. Hollabaugh, the FAA suspended the airman's airline transport pilot certificate for alleged violations of FARs 135.263(a) and 135.267(d) (flight and duty time regulations), as well as FAR 91.13(a) which the FAA alleged was a residual violation based upon the other violations. Based upon the airman's admission of all allegations except the careless and reckless charge, the FAA moved for summary judgment on all counts.

In response to the FAA's motion, the airman argued that the residual FAR 91.13(a) charge was inappropriate since violations of FARs 135.263(a) and 135.267(d) were not operational violations. The FAA then filed an "errata" to its motion which stated that reference to the FAR 91.13(a) violation as a residual charge was an error "because the factual allegations in the [c]omplaint effectively charge [r]espondent with an independent charge of carelessness under … § 91.13(a). The ALJ accepted the errata and then granted the FAA's motion on all counts.

On appeal to the full Board, the airman again argued that "granting summary judgment on the § 91.13(a) charge was inappropriate because § 91.13(a) only applies to operational violations" and since neither FAR 135.263(a) nor FAR 135.267(d) is an operational violation, his admissions concerning those violations did not prove that he also violated FAR 91.13(a). Recognizing that the Board had not faced this issue before, it initially reiterated that the FAA needs "to plead explicitly in the complaint whether a charge under § 91.13(a) is residual or independent."

However, accepting that the charge against the airman was an independent charge, the Board then determined that the FAA had failed to produce facts supporting an independent violation of FAR 91.13(a) and, as a result, summary judgment was inappropriate. The Board observed that the FAA's "correction" to allege an independent violation did not operate to the prejudice of the airman because the independent charge then required "a higher threshold of evidence than a residual charge." Consequently, since the FAA had not provided proof, the Board remanded the case to the ALJ to hold a hearing solely on the independent FAR 91.13(a) charge.

Nice to see the FAA's untimely attempt to fix its pleading error backfire in favor of the airman. At least now the FAA will have to prove the independent violation of FAR 91.13(a) rather than simply tacking it on, although I don't know that the hearing will result in a different outcome since it will still be in front of Judge Geraghty. However, hopefully the FAA will at least take note of the Board's admonition and draft careless and reckless allegations more accurately in the future.

Posted by Greg

January 03, 2012

IRS Adjusts 2012 FET Rates For Inflation

The Internal Revenue Service (IRS) announced inflation adjustments to the federal excise tax (FET) rates on air transportation for 2012. The adjusted rates are:

Percentage Tax - 7.5%
Domestic Segment Fee - $3.80
International Arrival/Departure Head Tax - $16.70
Hawaii/Alaska Flight Tax - $8.40

The adjusted rates are valid for air transportation taken from January 1, 2012 through January 31, 2012. The rates also apply to amounts paid on or before January 31, for transportation taken after that date. Since the Surface and Air Transportation Programs Extension Act of 2011 only extends these FET rates through January 31, any changes or extensions will depend upon what happens with the ongoing saga over the FAA re-authorization. Stay tuned.

Posted by Greg

December 09, 2011

When Is A Flight Manual "Current" Under FAR 91.9(b)(1)?

In a recent Legal Interpretation, the FAA's Office of the Chief Counsel was asked whether an aircraft flight manual which was provided at the time that an aircraft was purchased would be considered the "current" flight manual for the purposes of FAR 91.9(b)(1) or whether the operator would need to have the latest revision of the manual in order to legally operate the aircraft.

The Interpretation initially noted that FAR 91.9(b)(1) "prohibits operation of an aircraft for which an [flight manual] is required if that aircraft does not contain a copy of the "current" approved [flight manual]". It then went on to observe that in order to comply with the Administrative Procedures Act ("APA"), the word "current" could not impose an ongoing obligation, but rather only apply as of the time that the manual was adopted by the owner or operator. However, the Interpretation qualified that observation by stating that a flight manual that was subsequently amended by an Airworthiness Directive ("AD") would be considered a "current, approved" flight manual for purposes of FAR 91.9(b)(1).

As a result, the Interpretation concluded that "the word 'current', as it is used in FAR 91.9(b)(1), refers to the version of the [flight manual] that was in place at the time that the aircraft in question was purchased and includes any subsequent AD-mandated changes that were made to the [flight manual]. It went on to explain that "[t]he word "current" does not encompass any subsequent changes that were made to the [flight manual] that were not mandated by an AD or other rulemaking because those changes did not go through the notice and comment rulemaking process."

Keep in mind that this Interpretation only applies to operations under FAR Part 91. Operations under other parts of the FARs are governed by different regulations which may interpret the word "current" differently than in the context discussed in this Interpretation. If you have questions or concerns regarding interpretations in other contexts, contact me directly and I would be happy to discuss the issue with you.

Posted by Greg

December 08, 2011

NTSB Proposes Amendment To Reporting Requirements For ACAS Advisories

In a Notice of Proposed Rulemaking published today the NTSB is proposing to amend the notification and reporting requirements of 49 CFR 830.5(a)(10) with regard to Airborne Collision and Avoidance System (ACAS) advisories. Currently the regulation requires ACAS advisory reporting "[w]hen an aircraft is being operated on an instrument flight rules flight plan and compliance with the advisory is necessary to avert a substantial risk of collision between two or more aircraft" or "to an aircraft operating in class A airspace."

Under the proposed amendment, the following ACAS advisories would need to be reported:

When an aircraft is being operated on an instrument flight rules flight plan and compliance with the advisory is necessary to avert a substantial risk of collision between two or more aircraft; or
To an aircraft operating in class A airspace, unless the advisory received only instructs the pilot to "monitor vertical speed."

According to the NTSB, it "believes the proposed change to section 830.5(a)(10) will continue to assist in achieving the NTSB's purpose of improving aviation [[Page 76688]] safety, while ensuring the language of the rule only requires notifications regarding specific ACAS advisories that the NTSB may seek to investigate."

Comments to the proposed amendment are due no later than February 6, 2012. If you would like more information, you may contact Scott Dunham, National Resource Specialist--ATC, Office of Aviation Safety, (202) 314-6387.

Posted by Greg

December 06, 2011

BARR Is Back In Business

The FAA announced in a December 2, 2011 Press Release that, "effective immediately, general aviation or on-demand charter aircraft owners or operators seeking to keep their aircraft’s registration number from being displayed over public data systems during flight no longer need to submit a Certified Security Concern to the FAA." As you may recall, on June 3, 2011 the FAA issued a policy that required aircraft owners or operators to submit a Certified Security Concern in order to have their aircraft tail number blocked from view on the FAA’s Aircraft Situation Display to Industry (ASDI) or National Airspace System Status Information (NASSI).

This change in policy represented a reversal of its longstanding implementation of BARR and allowing aircraft owners and operators to block their tail numbers without having to justify their reasons to the FAA. However, according to the Press Release, "[o]wners and operators seeking to have their aircraft tail number blocked from these data feeds can now submit a blocking request directly to the FAA without stating a reason for the request."

If you would like to have your tail number blocked, you may submit your blocking request to the FAA via e-mail. You should send the following information to the FAA at "CertifiedSecurityConcern@faa.gov":

Aircraft owner or operator name;
Email address the FAA can utilize to communicate with the aircraft owner/operator about the blocking request;
Call sign (Tail Number) to be blocked - multiple tail numbers (call signs) can be submitted in one request; and
Blocking level desired (ASDI Vendor Level or FAA).

If you don't have access to e-mail, you may submit your blocking request to the FAA via regular mail to: FAA Certified Security Concern, ATO System Operations Services, Room 1002, 800 Independence Avenue, SW, Washington, DC 20591.

Posted by Greg

December 05, 2011

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

In a Notice published December 1, 2011, the FAA stated "that the minimum random drug and alcohol testing percentage rates for the period January 1, 2012, through December 31, 2012, 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 2010 was less than 1.00% (it was actually 0.503%, down from 0.534% in 2009) and the minimum random alcohol test rate for 2010 was less than 0.50% (it was actually 0.011%, down from 0.088% in 2009) the FAA may continue the current rates for calendar year 2010. Interestingly, both of these actual rates have been declining since at least 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 Ms. Vicky Dunne, Office of Aerospace Medicine, Drug Abatement Division, Program Policy Branch (AAM–820), Federal Aviation Administration, 800 Independence Avenue SW., Room 806, Washington, DC 20591; Telephone (202) 267–8442.

Posted by Greg

November 16, 2011

Must An Aircraft Provided By A Student For Instruction Have A 100-Hour Inspection?

This was the question posed, and answered, in a November 10, 2011 FAA Legal Interpretation. As you may know, FAR 91.409(a) precludes operation of an aircraft unless it has had an annual inspection under FAR Part 43 within the preceding 12 calendar months. However, if a flight instructor is going to give flight instruction for hire in an aircraft he or she provides, then FAR 91.409(b) requires that the aircraft must have had an annual or 100-hour inspection under FAR Part 43 within the preceding 100 hours of time in service. Although FAR 91.409(c) lists four exceptions to these maintenance requirements, they were not applicable in the context of the question presented to the FAA.

The Legal Interpretation stated that "the 100-hour inspection requirement applies when the instructor provides both flight instruction for hire and the aircraft used for instruction." If the person receiving the instruction provides the aircraft, then the aircraft only needs to have had an annual inspection under FAR 91.409(a). The FAA went on to note that "the person receiving instruction could provide an aircraft he or she owns or an aircraft he or she leases," but "if the person receiving instruction does not own the aircraft, the FAA may review the manner by which that person provided the aircraft to ensure the instructor, or an entity represented by the instructor, did not effectively provide the aircraft."

Once again, it is important to note that the FAA will investigate the substance of a transaction, rather than simply relying upon the form or documents and it will make a determination based upon the unique facts and circumstances of each case. The bottom line is that the student needs to obtain the aircraft under circumstances that don't include the involvement or control of the instructor. Only then would the 100-hour inspection requirement not be applicable.

Posted by Greg

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