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February 28, 2006

FAA Issues Notice Of Aircraft Registration Procedures Related To The Cape Town Treaty

The FAA today issued a Notice containing procedures to be followed at the FAA Registry relating to the Cape Town Treaty which will be in force starting tomorrow. The Notice identifies the types of aircraft and equipment subject to the Treaty including:

(1) Airframes, that when appropriate aircraft engines are installed thereon, are type certified by the competent aviation authority to transport at least eight (8) persons including crew; or goods in excess of 2750 kilograms (6,062 pounds);

2) Helicopters, heavier-than-air machines, supported in flight chiefly by the reactions of the air on one or more power-driven rotors on substantially vertical axes and which are type certified by the competent aviation authority to transport at least five (5) persons including crew; or goods in excess of 450 kilograms; and

3) Aircraft engines, powered by jet propulsion or turbine or piston technology and:
(a) in the case of jet propulsion aircraft engines, have at least 1750 lb of thrust or its equivalent; and
(b) in the case of turbine-powered or piston-powered aircraft engines, have at least 550 rated take-off shaft horsepower or its equivalent.

However, according to the FAA, "[s]ince a sanctioned comprehensive list prepared by an appropriate authority containing the manufacturer, model and serial number for each aircraft object subject to the Treaty has not yet been provided to the Contracting States; FAA will begin accepting documents related to the Cape Town Treaty on March 1, 2006, based on an interim updatable list of eligible aircraft objects compiled by the FAA." Also, if an aircraft is not on the FAA's interim list, an applicant for registration will need to establish the aircraft's eligibility, per the above requirements, before the FAA will process documents related to the Treaty.

The Registry will require that AC Form 8050-135 Entry Point Filing Form--International Registry is submitted with a registration in order for it to issue an authorization code that will allow for the transmission of information to the International Registry with respect to civil aircraft of the United States, aircraft assigned a U.S. identification number (for prospective interests only), and aircraft engines with a rated takeoff horsepower of at least 550.

The Notice also contains procedures relating to de-registration and export of aircraft subject to the Treaty. If you would like more information regarding the Registry's implementation of the Cape Town Treaty you can contact Walter Binkley, Manager, Aircraft Registration Branch (AFS-750), Mike Monroney Aeronautical Center, Federal Aviation Administration (AFS-750), Post Office Box 25504, Oklahoma City, OK 73125. Telephone (405) 954-3131.

Posted by Greg

Aircraft Owner Compliance With Service Bulletins

If you own an aircraft, you no doubt have received a "service bulletin" from the manufacturer of your aircraft or one of its components (e.g. the engine, avionics or accessories). But what exactly does this mean to you? Are you required to comply with the service bulletins? Will an aircraft owner be subject to FAA enforcement action if he or she does not comply with a service bulletin?

For the answers to these questions and a discussion of service bulletins from an aircraft owner's perspective, please read my latest article on the subject here.

Posted by Greg

February 20, 2006

2005 Federal Radionavigation Plan Available

The DOT has published the 2005 Edition of the Federal Radionavigation Plan (FRP) for comment. The FRP is the official source of radionavigation policy and planning for the Federal Government and is prepared jointly by the U.S. Departments of Defense (DoD), U.S. Department of Transportation (DOT), and Homeland Security (DHS) with the assistance of other government agencies, such as the FAA. The 2005 FRP focuses on "transition to GPS based services, recognizing the need to maintain backup navigation aids and provide redundant radionavigation service where required." According to the DOT, "[t]he FRP includes the introduction, policies, operating plans, system selection considerations, and research and development sections" and it is accompanied by a document entitled Federal Radionavigation Systems (FRS) that is published separately and contains information on government roles and responsibilities, user requirements, and systems descriptions (this document is not yet available).

The DOT will consider all comments, concerns, and suggestions regarding the current policies and plans in the 2005 FRP in formulation of the 2007 FRP. However, comments must be received by July 31 for consideration in development of the 2007 FRP. You may send comments to Chairman, DOT POS/NAV Working Group, U.S. Department of Transportation, Navigation and Spectrum Policy (P-50), Room 6423-F, 400 7th Street, SW., Washington, DC 20590. E-mail: John.Augustine@dot.gov. Or, if you would like further information, you may contact John Augustine, U.S. Department of Transportation, Navigation and Spectrum Policy (P-50), 400 7th Street, SW., Washington, DC 20590, (202) 366-0353.

Posted by Greg

February 18, 2006

EPA Publishes Final Rule Extending Compliance Date For Spill Prevention, Control And Countermeasures ("SPCC") Plans

Yesterday the EPA published its Final Rule extending the dates by which facilities must prepare or amend SPCC Plans, and implement those Plans. According to the EPA, its action allows it "time to take final action on proposed revisions to the July 17, 2002 SPCC rule before owners and operators of facilities are required to meet requirements of that rule when preparing or amending their SPCC Plans."

The extension will allow owners and operators to take advantage of any modifications that would be provided by a final SPCC amendment rule, would allow the regulated community the opportunity to understand the material presented in the EPA's newly released guidance SPCC Guidance for Regional Inspectors before preparing or amending their SPCC Plans, and, finally, is necessary for facilities that might have difficulty meeting the upcoming compliance dates because they were adversely affected by the recent hurricanes.

According to the Final Rule, "a facility that was in operation on or before August 16, 2002 would have to make any necessary amendments to its SPCC Plan, and implement that Plan, on or before October 31, 2007. Likewise, a facility that came into operation after August 16, 2002 would have to prepare and implement an SPCC Plan on or before October 31, 2007. Finally, a mobile facility would have to prepare or amend and implement an SPCC Plan on or before October 31, 2007."

If you would like more information on specific aspects of the Final Rule you may contact either Vanessa Rodriguez at (202) 564-7913 rodriguez.vanessa@epa.gov), or Mark W. Howard at (202) 564-1964 (howard.markw@epa.gov), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC, 20460-0002, Mail Code 5104A.

Posted by Greg

Effective Date Of Cape Town Convention And Collection Of Data Confirmed

The FAA published a Final Rule yesterday confirming the effective date of the Cape Town Convention and its authority to collect data pursuant to the Convention. Specifically, the Final Rule "confirms the effective date of the January 3, 2005, final rule amending 14 CFR parts 47 and 49 to comply with the Cape Town Treaty Implementation Act of 2004" and "also confirms the approval by the Office of Management and Budget (OMB) for the collection of public information contained in the final rule."

As you may recall, the Cape Town Convention establishes a new international registry for registration of aircraft and recordation of security interests in aircraft and aircraft equipment. Additionally, the Final Rule discloses an OMB control number authorizing the the use of FAA form AC Form 8050-135, Entry Point Filing Form--International Registry, to transmit information relating to civil aircraft of the United States, aircraft for which a United States identification has been assigned (but only with respect to notices of prospective assignments, interests, and sales), and aircraft engines, to the International Registry.

The effective date of the Final Rule is March 1, 2006. If you would like more information regarding the FAA's implementation of the Cape Town Convention 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

February 16, 2006

When Is An Ultralight Not An Ultralight?

A recent NTSB case discusses when an ultralight aircraft is subject to FAR Part 103 and when it is not. Administrator v. Hopkins arose after Mr. Hopkins was involved in an incident in which the 2-passenger Parasender II he was operating (also called a "powered parachute" by Mr. Hopkins) hit a power line and landed in a soybean field. As a result, the soybeans suffered some minor damage and the power company spent over $3,000 in equipment and labor investigating and evaluating the effect of the strike and subsequent safety of the power line. As you might imagine, when the FAA found out about the incident, it initiated a civil penalty action against Mr. Hopkins alleging violations of FAR's 61.3(a)(1) and (c)(1)(requiring pilot certificate to operate civil aircraft), 91.13(a)(1)(careless and reckless), and 91.203(a)(1) and (2)(requiring airworthiness and registratio certificates for operation of civil aircraft). The FAA asked for a civil penalty of $2,500.00.

At the hearing, the administrative law judge ("ALJ") agreed with the FAA and found that Mr. Hopkins had violated all of the FAR's alleged by the FAA except FAR 61.3(c)(1) which the ALJ dismissed. The ALJ then reduced the civil penalty to $1,500.00. Mr. Hopkins appealed the ALJ's findings of violation of FAR's 61.3(a)(1) and 91.203(a)(1) and (2) to the full NTSB Board.

Initially, the Board noted that "[t]he facts conclusively establish a violation of § 91.13(a)(1)." Mr. Hopkins appeared to concede this fact when he failed to appeal this issue. However, the main issue before the Board on appeal was whether "the vehicle an ultralight governed by 14 C.F.R. Part 103, in which case the regulations cited by the Administrator do not apply and there would be no regulatory violations, or was the vehicle subject to Part 91." Under FAR 103.1(a), the rule states that: "For the purposes of this part, an ultralight vehicle is a vehicle that: (a) Is used or intended to be used for manned operation in the air by a single occupant[.]"

Mr. Hopkins argued that despite the 2-seat configuration, the vehicle was being used by a single occupant. However, the FAA reads the rule to cover a vehicle that permits, by virtue of its design, carriage of only one person. The Board held that the FAA's position was a reasonable interpretation and under 49 U.S.C. § 44709(d)(3) the Board was bound by that interpretation. It also cited Advisory Circular (AC) 103-7 as another indication of the FAA's interpretation of this rule. AC 103-7 states specifically that, "[a]n ultralight cannot be operated under Part 103 if there is more than one occupant or if it has provisions for more than one occupant." Based upon this information, the Board then concluded that "[t]here can be no rebuttal when respondent’s vehicle had two seats."

Posted by Greg

February 15, 2006

FAA Releases Fact Sheet On Suspect Unapproved Parts

Yesterday the FAA released a new Fact Sheet on Suspect Unapproved Parts ("SUP's"). The Fact Sheet identifies SUP's as parts that may not meet applicable regulatory requirements ranging from parts that lack proper documentation to parts that are actually counterfeit. It then discusses the FAA's SUP program and its efforts to identify, investigate and remove SUP's from spares stocks and/or aircraft. If you would like more information regarding SUP's, you should review the Fact Sheet and also the details of the SUP program on the FAA's website here.

Posted by Greg

FAA Declares Itself "Public Health Authority"

The FAA today published a Notice to "inform hospitals and other health care organizations of its status as a "public health authority" under the medical privacy requirements of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). In support of this determination, the FAA cites to its statutory duty to "perform medical research intended to protect the occupants of aircraft from risks and hazards that are attendant to flight" which is "conducted in the interests of public health and the improvement of aviation safety for the traveling public." To further its research, the FAA believes that "public health authority status will allow it to efficiently obtain medical information necessary to fulfill its statutory mission."

The FAA concludes that "[a]s a public health authority, FAA is entitled to receive protected health information from hospitals and other health care organizations, without written consent or authorization because disclosures of protected health information to a public authority are permitted disclosures under the Privacy Rule (45 CFR 164.502(a)(1)(vi))." If you would like more information regarding this issue, you can contact Charles DeJohn, CAMI, Aeromedical Research Division, Federal Aviation Administration, CAMI Building, AAM-600, RM 112A, P.O. Box 25082, Oklahoma City, OK 73125, telephone (405) 954-5519.

Posted by Greg

February 14, 2006

"Known" Icing Conditions

I was recently asked about the definition of "known icing conditions." The individual asking the question was unable to find a definition in FAR Part 91. Unfortunately, "known icing" is not defined in FAR Part 91. Although FAR 91.527 discusses operating in icing conditions, it only applies to large and turbine multi-engine aircraft.

"Known icing" is, however, defined in the Aeronautical Information Manual ("AIM"). AIM 7-1-23 Table 7-1-8 defines "known icing" as "atmospheric conditions in which the formation of ice is observed or detected in flight. This should be distinguished from "forecast icing" which is defined in AIM 7-1-23 Table 7-1-8 as "environmental conditions expected by a National Weather Service or an FAA-approved weather provider to be conducive to the formation of inflight icing on aircraft."

But you cannot simply rely upon these AIM definitions. You also need to look at NTSB precedent to determine how the Board defines/interprets "known" or "forecast" icing as it relates to pilots in FAA enforcement actions. According to the many NTSB cases addressing this issue, a PIREP of icing, if in the same vicinity as the flight in question, would constitute "known" icing conditions. Also, if icing or the potential for icing is forecast, the Board will consider it to be "known" icing conditions.

Keep this information in mind when you are making the go/no-go decision at this time of year when both "known" and "forecast" icing conditions are prevalent.

Posted by Greg

February 13, 2006

NTSB Affirms Careless And Reckless Violation For Gear-Up Landing

In a recent decision, the NTSB affirmed an administrative law judge's finding that a gear-up landing supported a charge of careless operation of an aircraft. In Administrator v. Lorenz, the airman admitted that he landed a Beechcraft Bonanza V35B with the landing gear in the up position. The FAA charged the airman with careless and reckless operation of an aircraft in violation of FAR 91.13(a)("operat[ing] an aircraft in a careless or reckless manner so as to endanger the life or property of another") and the ALJ agreed.

On appeal to the NTSB, the airman argued that "potential endangerment" was absent and, even if it was present, potential endangerment was, "contrary to the plain and sensible meaning of the regulation." Citing numerous cases discussing the potential endangerment present when an aircraft is landed with the gear up, the NTSB stated that "[l]anding an aircraft with the landing gear retracted clearly creates the potential for injury, death or significant property damage, not only to the aircraft and those aboard it, but to those persons or property that are, or reasonably could have been, in the vicinity of the runway." The Board also noted in a footnote that "[t]he Administrator carries the ultimate burden in these proceedings, but given the extensive case law recognizing that the danger of such injury or damage is inherent in a gear-up landing, we think the lack of any showing that there was, in actuality, no such potential, requires a finding of potential endangerment."

The airman also raised the issue of whether the corporate ownership of the aircraft constituted "property of another." The Board noted that the corporate ownership of the aircraft, where the airman owned 50% of the corporation and the other one-half interest was owned by another individual who was the only other authorized pilot, renders the corporately-owned aircraft "property of another" under FAR 91.13(a).

Fortunately for the airman, he filed an Aviation Safety Reporting System form following the incident. As a result, he received a waiver of sanction. Unfortunately, however, he now has a finding of violation on his airman record.

Posted by Greg

February 10, 2006

NTSB Upholds Award Of Fees Under EAJA

In a recent decision, the NSTB has upheld an award of attorney's fees in excess of $21,000 pursuant to the Equal Access to Justice Act ("EAJA"). In Application of Michael Anthony Tarascio, the airman applied for an award of attorney's fees and costs he incurred in obtaining dismissal of an underlying enforcement action initiated against him by the FAA (See my November 12, 2004 post regarding the underlying decision). The administrative law judge granted the application and awarded $21,978.47. The FAA then appealed the decision to the NTSB arguing that the FAA was substantially justified in pursuing the underlying action and that the fees were excessive.

The NTSB denied the FAA's appeal. In analyzing the issue of whether the fees were properly awarded, the Board analyzed the legal basis for making an EAJA award. It first noted that an award of attorney’s fees and other specified costs pursuant to EAJA is appropriate when the FAA is shown not to have been substantially justified in pursuing its complaint. That is, the FAA's position was not reasonable in fact and law. The Board went on to state that "a determination of reasonableness involves an initial assessment of whether sufficient, reliable evidence exists to pursue the matter" and "that EAJA’s substantial justification test is less demanding than the administrator’s burden of proof when arguing the merits of the underlying complaint. As a result, the Board engages in an "independent evaluation of the circumstances that led to the Administrator’s original complaint" in order to determine whether the Administrator was substantially justified in pursuing the case.

In reviewing the FAA's arguments, the Board was less than complimentary, stating that "the Administrator presents a jumbled series of arguments, most of which are nearly identical to her arguments on the merits of the case." It then summarily dismissed the FAA's arguments as either unsupported or without merit. The Board also rejected the FAA's argument regarding the amount of the award holding that "[a]pplicant’s attorney’s time and expenses in defending against the Administrator’s original complaint are well documented" and noting that "the Administrator does not identify any specific charges on any of applicant’s invoices as erroneous or even questionable". The Board also granted the airman's supplemental request for fees and expenses incurred in the EAJA action.

This case is a good win for the airman. Not only was he vindicated in the underlying action, but he was also able to recoup the money he should not have had to spend defending himself against the FAA. It is also proof that the FAA does not always win.

Posted by Greg

February 07, 2006

DOT Releases SIFL Rates For First Six Months Of 2006

The U.S. Department of Transportation has released the Standard Industry Fare Level (SIFL) rates for the six-month period from January 1, 2006, to June 30, 2006. These rates are needed in order to apply the IRS's aircraft valuation formula to compute the value of non-business transportation aboard employer-provided aircraft and impute the income of the employee as required by the Internal Revenue Service Rules Section 1.61-21(g). The SIFL rates for the six-month period from January 1, 2006, to June 30, 2006, are: 0–500 miles $ 0.2024 ; 501–1,500 miles $ 0.1543; over 1,500 miles $ 0.1484; and Terminal Charge of $ 37.00.

If you are an employer and an employee or a non-employee guest or family member is flown on your aircraft, the flight is potentially taxable to the individual receiving the ride. The aircraft valuation formula applies on a per-flight, per-person basis and will be calculated using the distance in statute miles from where the individual boards the aircraft to where the individual deplanes.

Posted by Greg

FAA Flight Standards Service Creates New Part 135 Branch

As of this month, FAA's Flight Standards Service now has a new office focused on issues related to activities conducted under FAR Part 135. The new office is being informally referred to as the "Part 135 Branch, AFS-250". It will oversee on-demand charter operations, certain scheduled passenger and sightseeing flights, cargo and air transportation of U.S. mail chiefly in smaller aircraft. AFS-250 is managed by Hooper Harris, Manager, Commuter, On Demand and Training Center Branch, AFS-250, 800 Independence Avenue, SW, Washington, DC 20591; (202)267-3437. Additional FAA staff members in the office include Larry Buehler, Dan Jenkins and Harlan Sparrow.

The establishment of the Part 135 Branch is a timely move by the FAA given that it is currently reviewing 140 recommendations drafted by the Part 135/125 Aviation Rulemaking Committee (ARC). The ARC's proposals cover flight and duty time, Part 23 aircraft certification standards, training, Part 125 cargo operations, airships and a comprehensive miscellaneous rule covering many aspects of Parts 91, 119 and 135. It is expected that the FAA, likely with the input and participation of the Part 135 Branch, will publish proposed rules based upon the ARC's proposals yet this year.

Posted by Greg

February 03, 2006

DOT To Add Definitions Of Sixth And Seventh Freedoms Of The Air

The Department of Transportation today published a Final Rule adding definitions of sixth- and seventh-freedom charters to the definitions section of 14 CFR Part 212. The Final Rule also requires foreign air carrier applicants for charter authority to provide updated reciprocity statements and operational data relative to its homeland-U.S. services.

What are the "Freedoms of the Air" addressed by the final rule? Well, generally speaking, Freedoms of the Air are reciprocal air rights exchanged between nations pursuant to the 1944 Chicago Convention. Initially, the Chicago Convention established five Freedoms of the Air which are: 1. Freedom of peaceful transit; 2. Freedom of non-traffic stop (to refuel, repair, or refuge); 3. Freedom to take traffic from the home state of the carrier to any country; 4. Freedom to bring traffic from any country to the home state of the carrier; 5. Freedom to pick up and discharge traffic at intermediate points.

Subsequent to the Chicago Convention, four additional Freedoms of the Air have developed that are characterized by the International Civil Aviation Organization (ICAO) as "so-called" Freedoms because only the first five Freedoms have been officially recognized as such by international treaty. The four additional "so called" Freedoms include: 6. Freedom to move traffic betwen two other countries via the home state of the carrier; 7. Freedom to transport traffic between the territory of a granting state and any third state with no requirement that the service connect to or be an extension of any service to/from the home state of the carrier; 8. Freedom to transport cabotage traffic between two points in the territory of the granting State on a service which originates or terminates in the home country of the foreign carrier or (in connection with the so-called Seventh Freedom of the Air) outside the territory of the granting State (also known as "consecutive cabotage"); and 9. Freedom to transport cabotage traffic of the granting State on a service performed entirely within the territory of the granting State (also known as "stand alone" cabotage).

The definitional amendments in the Final Rule are intended to "clarify that sixth-freedom charter means a charter flight carrying traffic that originates and terminates in a country other than the country of the foreign air carrier's home country, provided the flight operates via the home country of the foreign air carrier; and that seventh-freedom charter means a charter flight carrying traffic that originates and terminates in a country other than the foreign air carrier's home country, where the flight does not have a prior, intermediate, or subsequent stop in the foreign air carrier's home country."

Even though they are not recognized pursuant to international treaty, the sixth and seventh Freedoms are recognized among reciprocating countries, including the U.S., pursuant to bilateral agreements. And at least for the U.S., the sixth and seventh Freedoms are now statutorily recognized Freedoms.

The rule becomes effective April 4, 2006. If you would like further information regarding the Final Rule, you may contact Brian Hedberg, Office of International Aviation (X-40), U.S. Department of Transportation, 400 7th Street, SW., Washington, DC 20590; (202) 366-7783.

Posted by Greg

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