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July 27, 2004

Final Light Sport Aircraft Rule Is Published In The Federal Register

The Light Sport Aircraft Final Rule was published in today's edition of the Federal Register. The Rule goes into effect September 1, 2004. However, the FAA still needs to publish an implementation rule providing procedures and programs for putting the Final Rule into effect. Of specific interest to many airman will be the alternate procedure the FAA is to develop for certifying light sport aircraft airman who have previously been denied an FAA medical certificate or had one revoked. I will try to post programs, procedures and updates for the light sport aircraft rule as they become available.

However, the Final Rule also lists the following contacts for obtaining answers to questions you may have regarding the rule:

For questions on aircraft certification and identification (14 CFR parts 21 and 45), contact Scott Sedgwick, Aircraft Certification Service, Small Airplane Directorate (ACE-100), Federal Aviation Administration, 901 Locust Street, Kansas City, MO 64106; telephone 816-329-2464; fax 816-329-4090; e-mail 9-ACE-AVR-SPORTPILOT-QUESTIONS@faa.gov;

For questions on aircraft maintenance and repairman certification (14 CFR parts 43 and 65), contact Bill O'Brien, Aircraft Maintenance Division (AFS-305), Federal Aviation Administration, 800 Independence Ave., SW., Washington, DC 20591; telephone (202) 267-3796;

For questions on aircraft maintenance and repairman certification 14 CFR parts 43 and 65), contact Bill O'Brien, Aircraft Maintenance Division (AFS-305), Federal Aviation Administration, 800 Independence Ave., SW., Washington, DC 20591; telephone (202) 267-3796.

Posted by Greg

July 26, 2004

More TFR Confusion

How would you like to be this pilot: After a visit to a Shreveport, LA casino, he returns to Arlington, Texas with his family in their Cessna 210. Upon landing, the pilot is told that the secret service wants to have a chat with him about his violation of the presidential TFR around Waco, TX. (Just for reference, the Waco TFR is almost due south from Arlington, nowhere near a direct flight path from Shreveport to Arlington). He and his family are then detained for an hour while the secret service refuses to believe his story. In the meantime, the pilot of the aircraft that allegedly violated the TFR and who arrived in Arlington ten minutes before the C210-driver, had already left the airport. True story.

The sad thing here is that it took an hour for the secret service to open their ears. Although the pilot apparently told them from the start that he arrived from Shreveport, in the end, the pilot had to call flight service and have them confirm his flight path. Why this wasn't done right away, I am not sure. I highly doubt that the C210-driver and his family either presented or appeared to be a terrorist threat.

It is apparent to me, however, that they are still unable to accurately assess and track supposed aerial threats. It doesn't sound like the secret service ever identified the alleged violating aircraft before it landed at Arlington. My guess is that the airport worker at Arlington made the mistaken ID because the C210-driver just happened to be putting his aircraft away when the he received the call from the secret service. No doubt about it, they still don't have security right.

Of course this presumes that a violation of a thirty-mile TFR really warrants such measures. And if flying through the TFR is such a serious security breach, then it seems strange to me that an aircraft could fly through the Waco TFR, land at Arlington and then leave before anyone was able to identify the aircraft or the pilot. Oh well. At least in the end the C210-driver was actually able to convince the secret service that he wasn't a threat to national security and allowed to go home with his family.

Posted by Greg

July 21, 2004

FAA Provides Explanation For Medical Denial Exclusion For Sport Pilot Airman

In conjunction with its issuance of the new Sport Aircraft Rule, the FAA issued a statement addressing airmen's concerns regarding the inability of an airman use a driver's license to operate under a Sport Pilot Certificate when that airman has previously been denied an FAA medical certificate or had a medical certificate revoked:

"We understand that these conditions [the concerns of pilots with FAA medical denials on record] may not have been expected and may disappoint some people. That was not our intent, nor is it our intent that affected persons would have to maintain an airman medical certificate if they would rather use their current and valid U.S. driver's license to medically qualify as a sport pilot.

We ultimately concluded that, in those cases where the FAA has existing knowledge of medical ineligibility, we need the affected person to address it and, hopefully, have it resolved. To meet the intent of the rule, the affected person should apply for reconsideration of his or her eligibility. In some denial cases, applicants simply may not have provided enough information to the FAA or may not have supplied information that the FAA may have requested. In certain other denial cases, applicants may not have exercised their appeal rights, which may have led to certification in some cases.

The FAA wants to see as many pilots as possible take advantage of this exciting new rule and looks forward to working with individuals seeking to exercise sport-pilot privileges. We also intend to work with EAA, AOPA, and other industry groups toward that end."

If you have received a denial or revocation and would like to operate under the Sport Aircraft Rule, you have two options: 1) you can pursue a third-class special issuance from the FAA through traditional channels, or 2) you can seek a sport-pilot medical evaluation via a separate procedure that the FAA continues to design and develop. Unfortunately, we don't know what this procedure will be because it has not been developed or implemented yet. As a result, the special issuance route is realistically the only option currently available.

Posted by Greg

July 20, 2004

FAA Issues Light Sport Aircraft Rule

The FAA issued a Press Release today announcing the release of the long awaited Light Sport Aircraft Rule. The Rule was created "for the manufacture, certification, operation, and maintenance of light-sport aircraft" and was intended to "make recreational flying safer while keeping it affordable and fun". Light-sport aircraft weigh less than 1,320 pounds (1,430 pounds for aircraft intended for operation on water) and are heavier and faster than ultralight vehicles and include airplanes, gliders, balloons, powered parachutes, weight-shift-control aircraft, and gyroplanes.

Under the Rule, the FAA created two new aircraft airworthiness certificates: one for light-sport aircraft, that may be used for personal as well as for compensation while conducting flight training, rental or towing; and a separate certificate for experimental light-sport aircraft, that may be used only for personal use. Maintenance, inspections, pilot training and certification requirements are also included in the Rule. According to FAA Administrator Marion C. Blakey. "This sport pilot, light-sport aircraft rule reduces the barriers to becoming a pilot and an aircraft owner while assuring that safety will always be the priority".

One of the highlights of the rule as it was making its way through the rulemaking process was the concept of an airman being able to fly a light sport aircraft with only a valid driver's license in lieu of a medical certificate. This was viewed as something that would bring a lot of airman back to flying who had previously lost their medical certificate or were unable to obtain one.

Unfortunately, as issued the Rule does not provide the relief hoped for regarding airman unable to obtain a medical or who have lost a medical certificate in the past. The Rule contains a new FAR 61.303 that restricts a person's eligibility to use a driver's license in lieu of a medical if the person "had his or her most recently issued medical certificate (if the person has held a medical certificate) suspended or revoked or most recent Authorization for a Special Issuance of a Medical Certificate withdrawn".

Otherwise, an airman may use a driver's license as long as he or she has "been found eligible for the issuance of at least a third-class airman medical certificate at the time of his or her most recent application (if the person has applied for a medical certificate)" and does not "know or have reason to know of any medical condition that would make that person unable to operate a light-sport aircraft in a safe manner".

I am sure a fair number of people are disappointed with this aspect of the issued Rule. However, further review and study will be necessary to determine the full scope and extent of the new regulations and to see whether the Rule as issued will actually have the impact of increasing general aviation activity as hoped.

Posted by Greg

July 14, 2004

WI Court of Appeals Upholds Aircraft Service Mechanic's Right To Receive Payment For Owner Requested Inspection

In a decision filed July 8, 2004, the Wisconsin Court of Appeals has upheld an aircraft maintenance provider's right to receive payment for inspection work requested by an aircraft owner and performed by the service provider even when the aircraft owner ultimately has another facility perform the repair work identified in the inspection. Wisconsin Aviation Four Lakes, Inc. v. Berryman, involved an aircraft owner, Berryman, who stored his aircraft with Wisconsin Aviation and, after two years of outside storage, requested Wisconsin Aviation to perform an annual inspection.

After beginning the inspection and discovering that the aircraft required numerous repairs, the Wisconsin Aviation mechanic stopped the inspection and prepared an estimate totaling $18,624.79 that detailed the required repairs and the costs of those repairs. When Berryman received the estimate, he instructed Wisconsin Aviation to stop all work while he considered his options. Berryman then obtained estimates from two other repair facilities which were substantially less than Wisconsin Aviation's estimate and did not include four major items from Wisconsin Aviation's estimate that they felt were unnecessary.

Berryman ultimately had his aircraft repaired by another repair facility and Wisconsin Aviation invoiced Berryman $561.68 for the costs incurred in performing the partial inspection. Berryman refused to pay and Wisconsin Aviation sued. Berryman counterclaimed alleging that Wisconsin Aviation intentionally misrepresented the required repairs, negligently performed the inspection and breached its contract with him.

After a bench trial, the trial court judge dismissed all of Berryman's counterclaims finding that Berryman had not presented sufficient evidence to support those claims. However, the judge also refused to award Wisconsin Aviation its invoice amount finding that all of the items included in Wisconsin Aviation's estimate were not necessary even though the estimate implied that they were, and thus that the estimate was not worth the invoice amount.

On appeal, the Court of Appeals disagreed. It found that Berryman received benefit from the work actually performed by Wisconsin Aviation. Not only was Wisconsin Aviation able to get the aircraft's engine to start and to identify twenty or more repairs that were necessary and eventually performed, but Berryman also received benefit from having more than one estimate for repairs to compare and choose from. The court concluded that "just because a customer elects to reject a service provider's repair estimate and to have further work performed elsewhere at lesser cost, the customer is not absolved of liability for payment for services the provider actually performed at the customer's request".

"The Court also noted that it would be bad public policy to deny Wisconsin Aviation a recovery: This was a reasonable and responsible business practice on the part of Wisconsin Aviation, and one to be encouraged, not discouraged by depriving Wisconsin Aviation of its concededly reasonable charges for the services it performed at Berryman's request."

This is a good opinion for aircraft mechanics and service providers, as well as for aircraft owners. If you are providing service at a fair and reasonable price at the request of an aircraft owner, this case says that you are entitled to be paid for that work. This case also says that if you are an aircraft owner and you request work on your aircraft, you will be responsible for only that work which you have requested and authorized.

It is unfortunate that a case for $561.68 would actually go to trial and then be argued to the Court of Appeals. Hopefully Mr. Berryman will not pursue a further appeal to the Wisconsin Supreme Court.

Posted by Greg

July 13, 2004

Department of Transportation Revises Civil Penalty Rules

The Department of Transportation published a Final Rule in the Federal Register last Friday revising the civil penalty provisions applicable to violations of the aviation economic requirements of Title 49. This rule incorporates the recently enacted Vision 100--Century of Aviation Reauthorization Act's revised civil penalty provisions into 14 CFR Part 383. Although the statutory amendments reflected by this final rule were effective December 12, 2003, this Final Rule is effective August 9, 2004. Depending upon the nature of the violation and the type of operator (e.g. individual, small business, air carrier etc.), the penalties can range from $1,100 for an individual (and in some cases a small business) to $2,500, $5,000, $10,000 and up to $25,000.

For further information, you can review the Final Rule which provides greater detail reflecting the penalty amount corresponding to a particular regulatory violation. Also, you can contact Nicholas Lowry, Attorney, Office of Aviation Enforcement and Proceedings (C-70), Office of the General Counsel, Department of Transportation, 400 7th St., SW., Washington, DC 20590, (202) 366-9349.

Posted by Greg

July 12, 2004

FAR Part 91, Subpart K, Fractional Compliance Deadline is February 17, 2005

Last September the FAA released FAR Part 91, Subpart K, regulating fractional aircraft programs/operations. Existing fractional programs that plan to continue as fractional, operating under the new FAR Part 91, Subpart K, have until February 17, 2005 to ensure that their operations are in compliance. The FAA projects that at least a full six months will be required to gain approval of Fractional Management Specifications (similar to Part 135 Operations Specifications). If you are a fractional program operator and intend to continue as fractional you should contact the FAA as soon as possible.

As with most deadlines, some people procrastinate until the last minute. Because of the lengthy time necessary to complete the necessary documentation and receive FAA approval, procrastination in this situation is ill advised. If you do not allow sufficient time for obtaining the approval, you will either not be able to operate after February 17, 2005 or you will need to obtain a waiver from the FAA. Based upon the FAA's reluctance to grant waivers to operators who were unable to obtain their DRVSM certification by that deadline, I wouldn't bet your continued operation on the chance of obtaining a waiver. Act now and save yourself the stress that comes from waiting until the last minute.

Posted by Greg

July 09, 2004

Federal Grand Jury Indicts America West Pilots

Following a July 1, 2002 arrest for operating an aircraft while under the influence of alcohol, two former America West Airlines pilots have been indicted in Miami on charges of being under the influence of alcohol while they were behind the controls of a passenger aircraft. According to a CNN article, the federal indictment charges both Capt. Thomas Cloyd and co-pilot Christopher Hughes with being drunk while they directed and operated an aircraft. FAR 91.17 prohibits pilots from consuming alcohol in the eight hours before a flight.

When tested following their arrest, both men had a blood alcohol content in excess of the state limit of .08, but below the federal limit of .10. Additionally, the state apparently has videotaped evidence showing the men drinking in a Miami bar six hours before their scheduled departure.

The State of Florida initially prosecuted the pilots, but a federal court dismissed the charges ruling that federal law pre-empted state law regarding pilot qualifications. The state has appealed that ruling, but no decision has been issued. Since their initial arrest, both pilots were terminated from America West and have had their commercial airman certificates revoked by the FAA.

This is an unfortunate event all the way around. It gives commercial pilots a bad reputation in the public eye. The pilots are now prohibited from working in their chosen profession. And the court's are now forced to decide whether state or federal law should apply to an offense that any pilot with common sense should know enough to avoid. Perhaps some good will come out of this in that the publicity this is receiving may help deter other pilots from making this same mistake.

Posted by Greg

July 08, 2004

TSA To Address Airport Employee And Access Security Gaps

According to an AP news story in today's USA Today, the TSA has issued new security directives mandating more detailed background checks on employees of airport restaurants, newsstands and other shops behind security checkpoints and those same employees will also have to start passing through metal detectors on their way to work. The new directives also require commercial airports to "reduce the number of doors behind security checkpoints used by airport and airline employees, and to increase security for the remaining doors".

According to the article, "[u]nder the new rules, private employees will pass through screening every day on their way to work. In addition, the TSA will require airports to reduce the number of security identification badges issued to vendor employees. Such badges allow access beyond the secure area to airport tarmacs and the airplanes themselves". The article also quotes TSA spokesman Mark Hatfield Jr. as stating that new rules are designed to strengthen security and "identify and disrupt potential threats to civil aviation." (You can read the full text of Mr. Hatfield's statement, brief as it is, here)

I am reasonably sure that I am not alone in saying "It's about time!". The inadequate background checks on airport employees and the less restrictive access to secure airport areas by those same employees have been two of the more obvious security gaps all along. Well, at least the TSA seems to be on the right track, even if it is way overdue.

Posted by Greg

Flight Testing Still Required For Certification Of Airframe Ice Detection And Protection Systems On Transport Category Aircraft

The FAA published a Notice of Issuance of Advisory Circular in today's federal register for Advisory Circular 25.1419-1A, Certification of Transport Category Airplanes for Flight in Icing Conditions. This AC provides guidance for certification of airframe ice protection systems on transport category aircraft in accordance with FAR 25.1419 and is an updated version of a previously issued AC on the same subject.

Specifically, this AC contains a revised description of information that should be included in a certification plan submitted by an applicant. Also, under the previous AC applicants were apparently under the impression that actual flight test demonstrations were not required if the applicant submitted "adequate analysis and testing". However, the revised AC makes it clear that flight test demonstrations are required to "to check for icing anomalies, and to demonstrate that the ice protection system and its components are effective" and to comply with FAR 25.1419.

If you would like more information, you can contact Pat Siegrist, FAA Standardization Branch, ANM-113, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2126.

Posted by Greg

July 01, 2004

Calculation Of Six-Month Due Diligence Period For Stale Complaint Defense to FAR 61.15 Violations Defined

It is nice to see that the NTSB is following the Ramaprakash line of cases delineating the timing for calculating the six months necessary for a stale complaint defense to an FAA enforcement action for a violation of FAR 61.15.

On remand from the D.C. Circuit Court of Appeals opinion in Ramaprakash v. Federal Aviation Administration, the NTSB's opinion followed the D.C. Circuit and granted the airman's motion to dismiss based upon the stale complaint rule. The Board held that "for purposes of applying our stale complaint rule in the context of certain alleged reporting violations [the FAA's due diligence] should be judged from the point when comparison of National Driver Register ("NDR") information and the results of an "NLETS" national database query indicated that the airman incurred an alcohol-related motor vehicle action".

In Administrator v. Schrader, a subsequent case involving assertion of the stale complaint rule as a defense to an FAA enforcement action for an airman's violation of FAR 61.15, the NTSB followed the Ramaprakash rulings and held that "in FAR 61.15(e) cases . . . the Administrator's due diligence, for purposes of challenge under the stale complaint rule, shall be assessed by reference to the time when FAA personnel receive NDR information which may include information about an airman that could support a conclusion that reporting requirements had not been observed."

These cases make it much easier to determine whether a stale complaint defense is available. They also limit some of the deference previously provided to the FAA and require greater due diligence from the FAA before it can take enforcement action against an airman for an FAR 61.15 violation.

Posted by Greg

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