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January 21, 2005

FAA Extends Comment Period For Repair Station Training Program AC

In a Notice published today in the Federal Register, the FAA has extended the comment period for proposed AC 145-RSTP relating to Part 145 Repair Station Training Programs. The proposed AC was originally published on December 22, 2004 and comments were to be due today. However, the Aircraft Electronics Association and the National Air Transportation Association both felt the original 30 day comment period was too short. They requested an extension of 60 days within which to submit comments to the proposed AC.

The FAA granted their request and comments to this proposed AC are now due no later than March 22, 2005. Comments on this proposed AC should be sent to Mr. Herbert E. Daniel, Aircraft Maintenance Division, General Aviation and Repair Station Branch (AFS-340), Federal Aviation Administration, 800 Independence Ave., SW., Washington, DC 20591; facsimile (202) 267-5115; e-mail Herbert.E.Daniel@faa.gov.

For more information you can review proposed AC 145-RSTP or you can contact Mr. Herbert E. Daniel, AFS-340, at the address, facsimile, or e-mail listed above, or by telephone at (202) 267-3109; or Mr. Dan Bachelder, AFS-340, at the address or facsimile listed above or e-mail Dan.Bachelder@faa.gov or by telephone at (202) 267-7027.

Posted by Greg

January 13, 2005

FAA Issues Laser Illumination Advisory Circular

In response to the recent, unauthorized illumination of aircraft with lasers, on January 11, 2005, the FAA issued AC 70-2: Reporting of Laser Illumination of Aircraft. The AC provides information for aircrews to protect themselves and to report laser illumination incidents. The AC is effective January 19, 2005.

Aircrews are requested to report incidents of laser illumination to directly ATC or to broadcast over UNICOM in uncontrolled airspace. When ATC receives a report within the vicinity of an airport, it will add a notice to the local ATIS for at least one hour after the incident. In addition to the airborne report, pilots are also requested to submit a Laser Beam Exposure Questionnaire which can be found in the advisory circular's appendix. The completed questionnaire should be faxed to Washington Operations Control Center at (202) 267-5289.

If an aircraft is illuminated during flight in controlled airspace, ATC authorization is required in order for an aircrew to deviate from the last assigned clearance. The AC also advises aircrews to avoid direct eye contact with the laser and to shield their eyes to the maximum extent possible while still safely flying the aircraft.

Posted by Greg

January 12, 2005

Just A Reminder: January 18th Is Deadline For Flight Instructors To Complete TSA Security Awareness Training

All existing flight instructors, including independent flight instructors, and flight school employees, must complete initial security awareness training as required by the TSA's recent Alien Flight Training Rule by January 18, 2005. The training is required even if the flight instructor or flight school employee does not have any contact with foreign students.

"Flight school employee" includes individual flight instructors or ground instructors, certificated under 14 CFR parts 61, 141, or 142, or any other employee of a flight school, independent contractor, or other employee that has direct contact with flight students. New instructors and flight school employees must complete the training within 60 days of starting employment.

You can download the security awareness training at no charge directly from the TSA here. Alternatively, AOPA's Air Safety Foundation is also offering the training in connection with its flight instructor refresher courses.

Posted by Greg

January 11, 2005

State Of Florida Allowed To Prosecute America West Pilots

The U.S. Supreme Court refused to hear the appeal of the America West pilots who were arrested and prosecuted in Florida for being drunk in the cockpit. I initially discussed this incident in my July 8, 2004 post. Subsequent to that post, the 11th Circuit Court of Appeals reversed the district court's dismissal of the state's charges holding that the federal laws did not pre-empt the state's prosecution of the pilots for operating an aircraft while intoxicated. Thus, under that decision, the state could prosecute the pilots for being over the state limit of .08 BAC even though the pilots were below the federal limit of .10 BAC.

The Supreme Court denied the pilots' petition seeking a reversal of the 11th Circuit Court of Appeals reinstatement of the state's charges. As a result, the 11th Circuit Court's decision stands and the case will go back to Florida where the pilots will now have to defend against the state charges.

Posted by Greg

Department Of Defense Attempting To Ban Salvage Of Sunken Aircraft

In the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, the Department of Defense (DOD) has included language that would eliminate underwater salvage operations for recovery of sunken military aircraft. Title XIV-Sunken Military Craft, Sections 1401-1408 on pages 721 through 728 of the bill, includes a provision that would ban any activity "that disturbs, removes or injures any sunken military craft". This would include airplanes.

In order to engage in any type of underwater salvage activity for a military aircraft, a salvage permit would have to be obtained from the DOD. However, the provision does not provide any oversight or control over the permit process, other than that the permits may be issued for historical or educational reasons. The DOD would apparently have unfettered discretion as to when or whether to issue a permit. Not a good thing.

Seems like a waste of resources to me and not a little bit selfish. I am not sure why the DOD would mandate that sunken aircraft remain abandoned when it could allow the many interested individuals to invest their own time and money to recover and restore these historical artifacts. If the DOD is concerned about liability, I think the better approach would be to pass legislation providing the DOD with immunity from claims arising from salvaged military aircraft. If the DOD is concerned about a possible "military threat" posed by these aircraft, this too could be alleviated through appropriately drafted legislation.

If you would like to help preserve these historical aircraft and encourage further salvage and restoration of warbirds, contact your legislators. Tell them the current provision is unnecessarily restrictive and unacceptable.

Posted by Greg

January 10, 2005

TSA Further Clarifies Alien Flight Training Rule

On January 5, 2004, the TSA issued a further Interpretation for the Alien Flight Training Rule discussed in my September 20, 2004 and October 21, 2004 posts. The interpretation clarifies the definition of "flight training" in aircraft with a Maximum Take-Off Weight (MTOW) of less than 12,500 lbs.

"Flight Training" only applies to training for a recreational, sport pilot, private pilot certificate, a multiengine rating, or instrument rating. However, "flight training" does not include recurrent training such as flight reviews, proficiency checks, or other checks whose purpose is to review rules, maneuvers, or procedures, or to demonstrate a pilot's existing skills.

For more information regarding the Interpretation, you can contact Mike Derrick, Office of Aviation Security Policy, Transportation Security Administration Headquarters, East Building TSA-9, 601 12th Street, Arlington, VA 22202-4220; telephone (571) 227-1198; e-mail Michael.Derrick@dhs.gov.

Posted by Greg

January 07, 2005

FAA Issues Final Rule Allowing ATC Specialists To Apply For Waiver Of Existing Age 56 Retirement Rule

Here is an interesting one. The FAA today published a Final Rule in the Federal Register that, when implemented, will allow ATC Specialists to apply for waivers of the age 56 retirement rule to allow them to continue to work for up to an additional five years. Currently, 5 U.S.C. 8335 requires that ATC Specialists retire by age 56.

Under the new rule, a request for waiver must be filed by an ATC Specialist no earlier than the beginning of the twelfth month before, but no later than the beginning of the sixth month before, the month in which the Specialist turns 56. The waiver application must include the ATC Specialist's: 1) name; 2) current facility; 3) starting date at the facility; 4) a list of positions at the facility that the Specialist is certified in and how many hours it took to achieve certification at the facility; 5) area of specialty at the facility; 6) shift schedule; 7) a statement that the Specialist has not been involved in an operational error, operational deviation or runway incursion in the last 5 years while working a control position; 8) a list of all facilities where the Specialist has worked as a certified professional controller (CPC) including facility level and dates at each facility; 9) evidence of the Specialist's exceptional skills and experience as a controller; and 10) the Specialist's signature.

Issuance of waiver is discretionary and may be denied by the Administrator. If granted, each waiver is good for one year. However, the ATC Specialist can request that the waiver be extended on an annual basis for a total of five additional years past the existing mandatory retirement age. The Final Rule is effective today and will appear in the regulations as SFAR 103.

I think it is ironic, and somewhat hypocritical, that the FAA has consistently denied airline pilots' requests for waivers from the age 60 rule, but now, when a shortage of controllers is looming, will allow ATC Specialists to work beyond their existing mandatory retirement age of 56. This certainly didn't happen during the pilot shortage in the 90's. It is especially disconcerting that pilots seeking waiver of the age 60 rule have offered to submit to more stringent medical testing to obtain a waiver, and yet ATC Specialists now will be able to obtain a waiver without any additional showing of medical health/condition. Seems to me this is unfair and self-serving rulemaking by the FAA.

Although the rule goes into effect today, the FAA will accept and consider comments on the rule that are submitted no later than February 7, 2005. Identify comments with "Docket Number FAA-2004-17334" and send them 1) electronically via http://dms.dot.gov or http://www.regulations.gov; 2) via U.S. Mail to Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001; 3) via facsimile to 1-202-493-2251; or 4) via hand delivery to Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC.

Also, for further information you can contact Wanda Reyna, ATO Workforce Services (ATO-A) Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-3056.

Posted by Greg

January 06, 2005

NTSB Affirms Pilot's Duty To Inspect Aircraft Logbooks Following Maintenance To Ensure Proper Entries Are Made To Return The Aircraft To Service

In Administrator v. Sugden, the airman was charged with violations of FAR's 43.3 (unauthorized performance of aircraft maintenance), 91.405(b) (required logbook entries for maintenance performed) and 91.407(a)(1)-(2) (operation of aircraft after maintenance). The airman had left his aircraft with a maintenance shop for service. After numerous delays, the airman was told the aircraft would be completed by a certain date. However, when the airman arrived to pick up the aircraft, it was still in an uncompleted, disassembled state.

Over the course of the next two days, the airman worked with the repair station to reassemble the aircraft so he could leave with it. During that time, the airman assisted in the maintenance and installed the aircraft's radome and the flux gate for the directional gyro. Upon completion of some, but not all, of the repairs, the airman flew the aircraft to his home base without inspecting the aircraft logbooks prior to his flight.

The FAA charged the airman with performing unsupervised maintenance on the aircraft without a mechanic or repairman certificate and with operating an aircraft without the appropriate entries in the aircraft's logbooks and when the aircraft was not properly returned to service. At the end of the hearing, the ALJ affirmed the violation of FAR 43.3, except for the allegations relating to the installation of the flux gate, and the violations of FAR's 91.405(b) and 91.407(a)(1)-(2), and imposed a 75 day suspension of the airman's commercial pilot certificate.

On appeal, and consistent with Board precedent, the NTSB Board affirmed the ALJ's findings. The Board held that the airman "failed to independently ensure that the required maintenance entries were recorded in the logbook and departed Boeing Field when, in fact, the required entries had not been made." The Board also noted that the maintenance personnels' failure to make the required entries highlights the importance of the airman's function in reviewing the aircraft logbooks and does not excuse the failure to review the logbooks prior to flight. Finally, the Board felt the evidence was also sufficient to support the ALJ's finding that the airman had installed the radome without the required supervision.

This case is consistent with Board precedent and is important because it illustrates that the FAA will pursue aircraft operators if an aircraft is operated after maintenance and the operator has not ensured that all required logbook entries are present and that the aircraft was properly returned to service. Neither ignorance nor misplaced reliance upon the maintenance provider are defenses. As a result, after an aircraft receives maintenance and before that aircraft is flown, it is incumbent upon the pilot to review the aircraft logbooks to make sure that the maintenance provider made the required logbook entries and properly returned the aircraft to service.

Posted by Greg

January 04, 2005

NTSB Board Reverses ALJ's Modification of Sanction And Reaffirms Deference To Be Given To FAA's Choice Of Sanction

In a recent NTSB decision, the Board reversed an administrative law judge's ("ALJ") downward modification of the sanction sought by the FAA against an airman for violations of FAR's 61.31(a)(1)(type rating requirements, additional training, and authorization requirements) and 91.13(a)(careless or reckless operation). In Administrator v. Rezendes, the airman failed a type certificate check ride in a King Air 300. Within the following month, and before he ultimately passed the type ride, the airman made two flights in a King Air 300 as pilot in command. The FAA then sought a 180-day suspension of the airman's commercial pilot certificate.

After a hearing, the ALJ upheld the violations, but modified the suspension to a 120-day suspension. It appears that the ALJ gave some consideration to the airman's violation-free record, his subsequent attainment of the rating at issue, and absence of actual endangerment as support for the modification. The ALJ also apparently believed the airman's assertion that the airman had mistakenly believed that an endorsement he had to take a check ride for the BE-300 type rating authorized solo flight as well.

On appeal, the Board reversed the ALJ, finding that the ALJ had exceeded his authority when he modified the sanction. The Board noted that its authority to modify sanctions under 49 USC 44709(d)(3) is "'bound by...written agency guidance available to the public relating to sanctions to be imposed' unless found by the Board to be 'arbitrary, capricious, or otherwise not in accordance with law'."

During the hearing before the ALJ, the FAA inspector provided an explanation for her calculation of the sanction based upon the circumstances of the case and the Sanction Guidance Table, FAA Order 2150.3A, Appendix 4. However, in his decision the ALJ did not make any finding that the FAA inspector's calculation was arbitrary, capricious or otherwise not in accordance with law as required for him to justify a modification to the sanction proposed by the FAA. As a result, modification of the sanction was inappropriate.

Based upon this case, if you are going to argue for a reduction in sanction, make sure you focus on how the FAA's calculation of sanction is arbitrary, capricious or otherwise not in accordance with law. Without a finding to that effect, the ALJ will not have the authority to modify the sanction.

Posted by Greg

January 03, 2005

Final Rules Implementing Cape Town Treaty Published

The FAA today published its Final Rule modifying existing regulations pursuant to the Cape Town Treaty Implementation Act of 2004. The Cape Town Treaty "creates a new international legal framework to give greater security to those who finance the purchase of aircraft, aircraft engines and certain helicopters. The financing provisions of the Treaty are fully consistent with current U.S. law under the Uniform Commercial Code. The Treaty establishes an International Registry where rights in aircraft, aircraft engines, and helicopters may be registered. The sole purpose of this registry is to establish the priorities between competing interests against certain aircraft and aircraft engines. There are no safety, oversight, or other regulatory implications. The existing FAA Aircraft Registry will be preserved and work in tandem with the new International Registry."

The Final Rule will "enable persons to transmit information to the new International Registry concerning certain aircraft and aircraft engines by making the FAA Aircraft Registry the U.S. authorizing entry point to the International Registry". The amendments included in the Final Rule become effective when the Cape Town Treaty enters into force with respect to the United States, except for the changes to subpart F of part 49 which are not effective until approved by the Office of Management and Budget. The Cape Town Treaty enters into force three months after the eighth country deposits formal instruments with the International Institute for the Unification of Private Law (Unidroit) depositary in Rome. So far five countries, including the U.S., have deposited their instruments. The FAA will publish a document announcing the effective date of this final rule.

Comments to the Final Rule are due no later than March 4, 2005 and may be sent: 1) Electronically to the DOT Docket Web site or to the Government-wide rulemaking Web site; 2) via U.S. Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001 or Office of Information and Regulatory Affairs, OMB, New Executive Building, Room 10202, 725 17th Street, NW., Washington, DC 20053, Attention: Desk Officer for FAA; 3) via Fax: 1-202-493-2251; or 4) via Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

For more information, you should review the Final Rule in more detail. It includes the changes being implemented, as well as a chart identifying the specific regulations being changed. Alternatively, you can contact Mr. Mark D. Lash, Civil Aviation Registry, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169, telephone (405) 954-4331.

Posted by Greg

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