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June 30, 2004

FAA Press Release Warns About Carrying Fireworks On Aircraft

In anticipation of the July 4th holiday weekend, the FAA today issued a Press Release advising passengers of the prohibitions of carrying fireworks on aircraft. Although it doesn't specifically reference what types of aircraft, the press releases references to an aircraft's "pressurized atmosphere" and to domestic and international regulations appears to be aimed at transport category aircraft and the airlines.

Fireworks and firework novelty items are considered hazardous-materials and passengers are prohibited from carrying such items in their checked or carry-on baggage, or on their persons. If caught carrying these items, a passenger could face civil penalties of up to $32,500 per violation with a minimum fine of $275, and criminal prosecution of up to five years in prison with criminal fines of up to $250,000 for individuals and $500,000 for corporations.

Apparently the TSA's increased screening and scrutiny is revealing a significant number of violations: "From April 2003 to May 2004, the FAA opened 7,849 investigations into violations of the Hazardous Materials Regulations. This compares to 2,555 investigations opened in the same time period the previous year." Unfortunately, the Press Release doesn't break these figures out by type of hazardous material involved.

Regardless, it should go without saying that the risks far outweigh the possible benefits of traveling with these types of items on the airlines. If you are flying somewhere for the 4th of July, the best bet is to buy your fireworks when you arrive at your destination.

Posted by Greg

June 29, 2004

Personal Use of Corporate Aircraft Under Fire From Congress

Congress is taking aim at personal use of corporate aircraft. In the House of Representatives, Rep. Rahm Emanuel (D-Ill.) and 10 other Democrat cosponsors introduced The Corporate Jet Tax Shelter Reform Act of 2004 (H.R.4352) seeking to restrict a company's ability to deduct certain portions of a flight conducted for personal use.

The bill would amend the Internal Revenue Code of 1986 to deny a deduction for the portion of employer-provided vacation flights in excess of the amount of such flights that is treated as employee compensation. According to Emanuel, this legislation would plug a loophole that "allows executives who fly in corporate jets for personal travel to write off this perk for about half the price of a round-trip, first-class ticket from New York to Los Angeles, while at the same time the executive's company is permitted to take a full tax deduction for the costs of owning and operating the airplane." He further claims this loophole costs $287 million a year in lost tax revenues. H.R. 4352 was referred to the House Ways and Means Committee for further action.

At the same time in the Senate, an Amendment to the Jumpstart Our Business Strength Act (S.1637) was sponsored by Sens. Kay Bailey Hutchison (R-Texas) and Mary Landrieu (D-La.) in an attempt to limit the amounts of deductions, including depreciation, for expenses relating to personal travel on a business aircraft.

I suspect both of these bills are in response to the Sutherland Lumber case decided by the 8th Circuit in 2001 upholding these deductions. Hopefully both of these bills will not make it to full congressional votes. If they do, those involved in business aviation should contact their representatives and senators to lobby for defeat of these bills to preserve the current deduction.

Posted by Greg

June 28, 2004

Cape Town Treaty Moving Forward

On June 22, 2004, the Senate Foreign Relations Committee approved H.R. 4226 and the full House voted by voice vote to pass legislation implementing the Cape Town Convention and the Protocol on Matters Specific to Aircraft Equipment (Treaty Doc 108-10 or Cape Town Treaty).

The Cape Town Treaty, as it is sometimes referred to by virtue of its negotiation in Cape Town, South Africa in 2001, would establish an international legal framework for security and leasing interests in aircraft and would create an international registry to keep track of transactions involving planes, helicopters, and engines, as well as a set of regulations relating to payments, contracts, and bankruptcy.

Although the U.S. currently uses the proposed asset-based financing rules, this legal framework will be expanded to other signatories to the treaty. This will provide greater consistency and security for asset-based lenders, including aircraft financers. This should eliminate some of the risks associated with aircraft financing and, hopefully, expand the availability of aircraft financing for international transactions. The Senate is expected to ratify the treaty by the end of the year.

Posted by Greg

June 27, 2004

Surviving A Ramp Check

Have you ever wondered what happens when an FAA inspector performs a ramp check? Why does it happen? What can the inspector do? What can't the inspector do? What are your obligations? For answers to these questions and more, check out my latest article: Surviving The Ramp Check.

Posted by Greg

June 21, 2004

Calling Flight Service For NOTAM's Is A Post-9/11 Necessity

All pilots should be familiar with and abide by FAR 91.103 which requires that "[e]ach pilot in command shall, before beginning a flight, become familiar with all available information concerning that flight." In what appears to me to be a "no-brainer," in my humble opinion, an airman's private pilot certificate was suspended for 240 days in Administrator v. Somerville when the airman failed to call flight service on September 11, 2001 to obtain the NOTAM grounding all aircraft.

On the morning of September 11, 2001, Mr. Somerville flew from his home near Blue Ribbon Farm airstrip, WA, to Port Townsend, WA airport. Even though he learned of the attacks prior to his outbound flight, he did not call flight service for a briefing. Prior to his return flight and, after discussing the attacks and the NOTAM with a mechanic, the airman again failed to call flight service. After a hearing, the administrative law judge affirmed an order of the FAA suspending the airman's certificate for violation of several FAR's including 91.103.

In affirming the ALJ, the NTSB Board was very critical of the airman for assuming he knew everything he needed for a safe flight without call flight service, especially in light of his knowledge of the attacks. The Board held that his flights were "highly irresponsible and personally dangerous," that his return flight involved a "deliberate disregard of the NOTAM's grounding of all flights," and his conduct exhibited a "negative compliance disposition" justifying warranting the 240 day suspension.

What does this case mean for you? Bottom line: Obtain a pre-flight briefing before every flight! Since 9/11, the rules have changed. Temporary Flight Restrictions are a daily occurrence and, in some instances, they are implemented with very short notice. The best way to protect yourself is to call flight service and specifically ask for NOTAM's and TFR's that affect your route of flight. Not only will you receive the appropriate information, a recording of your conversation will preserve evidence of your request which may prevent an enforcement action if a briefer fails to give you information that will affect your flight and you unknowingly violate a NOTAM or TFR.

A simple phone call to flight service will provide you with the information you need to fly safe and to fly smart.

Posted by Greg

June 18, 2004

Extension Of 50% Bonus Depreciation Placed-In-Service Requirement Likely

With passage of H.R. 4520, the American Jobs Creation Act, by the United States House of Representatives, it appears likely that the current 50 percent bonus depreciation placed-in-service requirement will be extended to allow purchasers of general aviation aircraft to continue to take advantage of the 50 percent bonus depreciation through January 1, 2006. H.R. 4520 contains a provision extending, for an additional twelve months, the placed-in-service requirement for purchasers of general aviation aircraft wishing to qualify for 50 percent accelerated or bonus depreciation. The United States Senate passed S. 1637 in May, which included the same provision for extending the placed-in-service requirement for general aviation aircraft as the House bill.

The extension of the placed-in-service requirement is necessary because general aviation aircraft take longer to manufacture than other products. The lead-time necessary for purchase of a new aircraft can be up to six months or longer. As a result, potential purchasers would have already needed to order their aircraft in order for them to be able to meet the current placed in service deadline of January 1, 2005. In some situations, even those previously placed orders may not be completed and placed in service in time to meet the deadline. The current deadline effectively precludes a purchaser's ability to take advantage of the 50 percent bonus depreciation for an aircraft for the last half of 2004. The extension will provide an additional year within which to purchase an aircraft and realize this tax benefit.

Assuming the conference of House and Senate members is able to resolve any differences between the two versions of the bill, it is anticipated that the provision extending the placed in service deadline will be included in the final bill that is ultimately sent to President Bush for signature. Let's hope the conference committee does not get bogged down in politics and is able to reach an agreement. If the bills are not reconciled into a final bill, the extension provision for which so many aviation organizations have successfully lobbied will be lost.

Posted by Greg

June 17, 2004

EPA Proposes Extension to Oil-Spill Rule Deadline Applicable To FBO's And Other Aircraft Refuelers

The Environmental Protection Agency (EPA) has proposed extending an industry compliance deadline for its 2002 revisions to oil spill response and prevention rules which apply to a wide range of industry sectors, including FBO's and other operators who perform aircraft fueling.

The Proposed Rule establishes amended deadlines of August 17, 2005, to amend an existing SPCC plan, and February 18, 2006, to implement the plan. Affected facilities that start operations between August 16, 2002, and February 18, 2006, must prepare and implement an Spill Prevention Control and Countermeasure (SPCC) plan by February 18, 2006. Affected facilities that become operational after February 18, 2006, must prepare and implement an SPCC plan before starting operations.

According to Eric Byer, director of government & industry affairs for the National Air Transportation Association, "[t]his delay is a great relief to our members as they will no longer fear enforcement action while the EPA finally determines how the standards actually apply. This is particularly important for those companies involved in fueling operations."

Comments on the proposal, due by July 7, 2004, are expected to be overwhelmingly in favor of the delay. You may submit your comments, identified by Docket ID No. OPA-2004-0003, by one of the following methods: 1. Federal Rulemaking Portal: http://www.regulations.gov and follow the on-line instructions for submitting comments; 2. Using EDOCKET at the agency's web site: http://www.epa.gov/edocket (the EPA's preferrred method for receiving comments); or 3. Via U.S. Mail addressed to EPA Docket Center, 1301 Constitution Ave., NW., EPA West, Suite B-102, Washington, DC 20460.

Posted by Greg

June 16, 2004

FAA Posts Two New DRVSM Documents To Its Website

The FAA has posted two new documents discussing Domestic Reduced Vertical Separation Minimums (DRVSM) to its website. "Basic Operator Information on DRVSM Programs", dated June 1, 2004, provides a basic overview of the DRVSM program, including program objectives, background, regulation and guidance, an overview of the RVSM authorization process and an explanation of basic DRVSM policies. "DRVSM Operational Policy and Procedures: FAA Notice", dated May 31, 2004, contains DRVSM operational policy and procedures. You can download copies of these documents here.

DRVSM will go into effect on January 20, 2005 at 0901 UTC. All operators intending to fly between flight level (FL) 290-410 (inclusive) in the airspace of the lower 48 States of the United States, Alaska, Gulf of Mexico and Atlantic High Offshore Airspace (including Houston and Miami Oceanic airspace) and the San Juan FIR after that date will need to be in compliance.

Posted by Greg

June 15, 2004

12-5 Standard Security Program No Longer Applicable To Aircraft Weighing 12,500 Pounds

The TSA recently released a "technical change" to the Twelve-Five Standard Security Program to exclude aircraft weighing 12,500 pounds or less from the 12-5 Program requirements. Prior to this change, the 12-5 Program included aircraft engaged in scheduled and charter operations with a maximum certificated takeoff weight of 12,500 pounds or more. This "technical change" will release a number of operators from the 12-5 Program requirements who shouldn't have been included in the first place.

Affected operators should contact their TSA Principal Security Inspector to ensure that they are properly removed from the TSA database. More information on the 12-5 Program is available at the NBAA website here.

Posted by Greg

June 14, 2004

Timely Reporting And Remedial Treatment Do Not Mitigate Sanction For Multiple DUI Suspensions

The NTSB recently affirmed a 120-day suspension of a pilot's airman certificates, including his commercial pilot certificate, after the airman received two driving under the influence (DUI) driver's license suspensions within three years in violation of FAR 61.15(d). In Administrator v. Kennedy, the FAA issued an Order of Suspension after the airman reported the second DUI related suspension. The airman appealed and the administrative law judge affirmed the Order of Suspension.

On appeal to the full NTSB board, the airman did not argue that the suspension itself was improper (the airman conceded to the administrative law judge that his conduct violated FAR 61.15(d)). Rather, he argued that the suspension was excessive and should have been mitigated by the fact that he timely reported the two DUI related suspensions and that he had voluntarily undertaken alcohol related treatment.

In rejecting this argument, the Board cited a previous case in which it held that "mitigation of sanction depends not on factors such as respondent's subsequent accomplishments but on the existence, type, and degree of extenuating circumstances in the commission of the violation". The Board deferred to the FAA's choice of sanction and noted that it was consistent with other sanctions imposed by the FAA for similar conduct.

The moral of the story is that DUI's are hazardous and, in some cases fatal, to an airman's continued use and possession of his or her certificates. Conduct after the fact does not persuade the FAA or the NTSB otherwise. Nothing wrong with having a few drinks after a long day of flying or work. However, in the grand scheme of things, a cab ride is always going to be less expensive and less detrimental than a DUI. Not only should you fly safe and fly smart, but you should take the same approach when it comes to drinking and driving.

Posted by Greg

June 12, 2004

EAA Charity Flight Drug Testing Exemption Renewed by FAA

On May 20, 2004 the FAA granted the Experimental Aircraft Association's (EAA) petition to extend Exemption 7111C, as amended. This Exemption allows EAA chapters to conduct local sightseeing flights at charity and community events without having to comply with the drug and alcohol misuse prevention requirements of FAR Part 135. The extension extends the term of the Exemption to June 30, 2006. A copy of the letter extending the Exemption is available for review here.

In order to qualify for the Exemption, EAA members must comply with the conditions and limitations contained in the Exemption that pertain to each individual event, as well as to the individual pilot and organization sponsoring each event. These conditions and limitations are contained in the letter extending the Exemption.

Individual EAA Chapters must request permission to operate under the Exemption by calling the EAA Chapter office staff at (920) 426-6867. If an individual EAA member would like to operate under the exemption for local events he or she does on their own, he or she can apply directly to the Department of Transportation for a drug testing exemption. The four-event limitation will still apply.

Individual exemption requests must be either faxed to the DOT Docket office at 202/493-2251 or mailed to: DOT Docket Management System, 400 7th Street, SW, Room PL 401, Washington, DC 20591. For further information regarding the Exemption, contact the EAA Chapter office.

Posted by Greg

June 09, 2004

FAA To Update Small Aircraft Alterations Advisory Circular

The FAA is proposing to revise and update the current AC 43.13-2A, Acceptable Methods, Techniques, and Practices - Aircraft Alterations to "reflect advances in aviation technology". The current AC provides guidance to mechanics and repair stations for performing simple alterations to non-pressurized, certificated aircraft weighing less than 12,500 pounds.

The new policy would apply to "a landplane, seaplane, or floatplane, fixed gear aircraft of 6,000 pounds or less maximum gross weight or less, and with a reciprocating engine of 200 horsepower or less". It would allow mechanics and repair stations to "use acceptable data as approved data for major alterations to certain non-pressurized aircraft". The FAA is hoping to reduce the need for field approvals for alterations to certain non-pressurized aircraft, and to reduce the workload of the FSDO and the waiting time for FAA approvals, while maintaining the level of safety.

The Request for Comments was issued on May 28, 2004 and published in the Federal Register today. For further information or to submit comments contact William O'Brien, Aircraft Maintenance division, Federal Aviation Administration, 800 Independence Ave., SW, Washington, DC 20591; telephone (202) 267-3796, fax (202) 267-5115.

Posted by Greg

June 08, 2004

Copyright License Not Required For Part 91 Inflight Videos

In response to member inquiries, NBAA has issued "guidance to its Members that a Motion Picture Licensing Corporation (MPLC) subscription is not required to legally display videos during Part 91 flights." Apparently MPLC was contacting NBAA members and telling them they needed "a public performance exhibition license" in order to show videos on Part 91 flights. According to the NBAA, "[i]t is the view of NBAA's legal counsel, based on current legislation and judicial findings, that such a license is not necessary, as the showing of videos on business airplanes during Part 91 operations does not constitute a 'public performance' as defined by the U.S. Copyright Act."

If MPLC contacts you for this purpose, ask them to provide you with the legal basis upon which they are making their claim. Alternatively, you may simply rely on NBAA's guidance and state that your operations do not require such a license. Otherwise, you can contact Joe Ponte at NBAA for more information or to report contact from MPLC.

Posted by Greg

June 04, 2004

Eighth Circuit Holds That A Heliport Is An Airport

The Eight Circuit Court of Appeals in Edwards v. Federal Aviation Administration recently held that "a licensed heliport is an airport". Seems like a "no-brainer" to me, but the court did provide a fairly detailed analysis supporting its legal conclusion.

The case took place in Sturgis, North Dakota during the annual motorcycle rally. Mr. Edwards' was displeased with a helicopter owners operation of sightseeing flights departing and returning across the street from Mr. Edwards' store. The helicopter operator obtained both a "favorable airspace determination from the FAA, as well as an airport operating license from the South Dakota Aeronautics Commission." Despite these approvals, Mr. Edwards believed the helicopter operations were unlawful and, in an attempt to "discourage" the flights, Mr. Edwards moored two large advertising balloons on his property.

FAA officials thereafter warned Mr. Edwards on numerous occasions that his balloons were illegal. Mr. Edwards eventually removed the balloons, but only after threatening to shoot the windows out of helicopters flying over his property and having to explain that comment to an FBI agent. As you might expect, the FAA was not pleased. The FAA sought, and the Administrative Law Judge (ALJ) ordered, a $5,000.00 civil penalty against Mr. Edwards for his operation of the moored balloons in a manner that created a hazard and within five miles of an airport.

In affirming the ALJ's finding that the heliport was an airport within the meaning of 14 C.F.R. - 1.1, the Court granted substantial deference to the FAA's interpretation of the FAR's and found that the ALJ's determination was reasonable "given the evidence that the site was being used regularly for the take-off and landing of helicopters, with FAA and state approval." The Court noted, that "[t]he FAA, using clear and reasonable language, defined 'airport', for the purpose of FAA safety regulations, as the place where a helicopter goes up and comes down."

However, it is unclear just how much weight the Court granted to the fact that the helicopter operator had obtained FAA and Aeronautics approvals. Without these approvals, it seems to me that this case could be construed more broadly than it should be to argue that any place a helicopter goes up and then comes down is a heliport. I don't think this was the Court's intention, but without further clarification of the Court's reliance upon the approvals, such a broad interpretation could easily be argued. It will be interesting to see how/whether this case is used/cited in the future.

Posted by Greg

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