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March 31, 2006

Business Use Of U.S.-Registered Foreign Civil Aircraft

On March 28, 2006, the FAA published a Final Rule amending 14 CFR Part 375 to exempt certain business operations of U.S.-registered foreign civil aircraft from being treated as commercial air operations. The rule change was prompted by a petition filed by the NBAA to recognize that the "economy has become increasingly global and businesses more multinational in character and structure" and that "[a] company that might own a U.S.-registered business aircraft should be able to operate that corporate aircraft in the United States for certain business purposes and be reimbursed for costs by a subsidiary without specific flight approval by the Office of Secretary under Part 375."

The final rule delineates "certain types of operations by business aircraft operators using U.S.-registered foreign civil aircraft (such as carriage of a company's own officials and guests, or aircraft time-sharing, interchange or joint ownership arrangements between companies) that do not constitute operations 'for remuneration or hire' and, therefore, do not require a DOT permit." It also delineates the types of permissible operations that an operator may conduct and the types of expenses that may be reimbursed without the operator being required to obtain a DOT permit for each individual flight.

The FAA determined that the limitation on cost reimbursement for operations (such as carriage of a company's own officials and guests, or aircraft time-sharing, interchange or joint ownership arrangements between companies), requiring individual permits, was problematic and that it was "in the public interest to accept cost reimbursement in these circumstances, without prejudice to any other interpretation of 'remuneration or hire."

The final rule is effective April 27, 2006. If you would like further information, you should review the final rule or you may contact David Modesitt, Chief, Europe Division, Office of International Aviation (X-40), U.S. Department of Transportation, 400 7th Street, SW., Washington, DC 20590; (202) 366-2384.

Posted by Greg

March 29, 2006

Financing The Purchase Of An Aircraft

If you have decided to purchase an aircraft, but you do not necessarily have the cash to purchase the aircraft outright, or if you do have the cash available, but tax or cash flow implications dictate against paying cash for the aircraft, then you are likely going to finance the aircraft through a lender providing aircraft financing. Aircraft financing is common. However, it differs from traditional financing in a number of ways. If you would like more information on the processes and procedures involved in a basic aircraft finance transaction, please read my new article on the topic here.

Posted by Greg

March 28, 2006

Deadline For Inspection Authorization Renewal Is March 31

Airframe and Powerplant mechanics who have an inspection authorization (IA) have until March 31 to renew their yearlong authorization. IAs expire on March 31 of each year. A&P's should review FAR 65.93 for the requirements they will need to meet and the documents they will need to present to a FSDO or International Field Office in order to renew their IA authority.

Posted by Greg

March 21, 2006

NTSB Rejects Airman's "FMS Malfunction" Defense

In a recent NTSB case, Administrator v. Nemeth, the Board affirmed an ALJ's finding that an airman violated FAR's 91.13(a) (careless and reckless), 91.123(a) and (b) (deviation from ATC clearance and instruction), and 91.175(a) (take-off and landing under IFR), when he improperly executed an instrument approach into the Jackson Hole Airport. Although the airman was cleared to perform the ILS 18 approach, the aircraft skipped one of the approach fixes, flew through the final approach course and then executed a climbing right turn contrary to the published missed approach procedure.

At the hearing, the airman and his copilot testified that the aircraft's IMC flight toward the improper approach fix was "perhaps because of an error or malfunction involving the FMS" and that when it became apparent that they wouldn't be able to capture the final approach course, they executed the non-prescribed climbing right turn to avoid high terrain. The ALJ did not buy it and affirmed the FAA's findings of violations and 60-day suspension.

On appeal, the Board deferred to the ALJ's credibility determinations regarding the airman's and copilot's testimony. Additionally, the Board observed that at no time did the airman advise ATC of his non-standard maneuvers or that he was experiencing an equipment malfunction or emergency. Further, the Board affirmed the ALJ's ruling that the airman waived his emergency defense when he failed to raise emergency as an affirmative defense in any of his pleadings.

The Board also rejected the airman's argument that a 60-day suspension was excessive, noting that "contrary to respondent’s claims, this incident was not a 'subtle deviation,' but, as respondent’s own testimony makes clear, a dangerous lapse in airmanship."

Although this appears to be an unfortunate outcome for the airman, the non-standard procedures in IMC conditions into the Jackson Hole Airport could have resulted in far more severe consequences. Also, it appears that if in fact "emergency" was a legitimate defense for the airman, he certainly should have advised ATC to that effect at the time and then preserved the defense in his pleadings.

Posted by Greg

March 09, 2006

8th Circuit Affirms Civil Penalty Against Trans States Airlines For Failure To Maintain Current Crewmember Records

In Trans States Airlines v. Federal Aviation Administration, the 8th Circuit Court of Appeals deferred to the FAA's interpretation of 14 C.F.R. § 121.683(a)(1) and affirmed a $25,000.00 civil penalty assessed against the carrier for its failure to maintain current flight, duty and rest time records for its pilots. At the hearing before the administrative law judge, Trans States argued that it had complied with the regulations because it used an approved computerized software system and none of the management/instructor personnel had violated the flight, duty and rest time regulations. Unfortunately, the ALJ rejected this argument holding that the carrier had to make sure that the records contained in its Bornemann system were accurate for all flight personnel, regardless of whether they were line or management pilots, and even for those who were in compliance with the flight, duty and rest regulations.

On appeal, the carrier argued that the FAA had construed the requirements of FAR 121.683(a)(1) too strictly. However, the Court held that it was required to defer to the FAA's interpretation of the FAR'S and that the FAA had not abused its discretion in determining that Trans States' records were not "current" within the plain language of the regulation. The Court also noted that "the FAA's interpretation is not unconstitutionally vague, because an ordinary person would know what the regulation requires."

Trans States further argued that the FAA should draw a distinction between management pilots, who would update their records prior to accepting any flight assignment, and line pilots, whose records would be kept up to date automatically by the computer. Based upon this distinction, the carrier argued that it satisfied its recordkeeping requirements. The Court disagreed, noting that the regulation did not make such a distinction and that it required that current records must be maintained for "each crewmember" regardless of whether they were classified as line or management pilots.

This case serves as a reminder that flight and duty time records must be maintained by an air carrier and the records, regardless of the form in which they are maintained, must be current and accurate. It also reiterates the deference that decisionmakers must give to the FAA's interpretation of the FAR's in enforcement proceedings.

Posted by Greg

March 08, 2006

Requests For Re-Examination

An airman was recently involved in an accident. Although the subsequent company disciplinary action found that the airman had not done anything wrong, the airman later received a request for re-examination from the FAA. I was asked whether the FAA could take this action even though the airman was not disciplined. The answer is, yes, the FAA can.

Under 49 USC 44709, the FAA can request re-examination "at any time". The FAA is not bound by an employer's determination regarding discipline arising out of and accident or incident. The standard that the FAA must meet to justify a request for re-examination is whether the request is objectively reasonable. Re-examination requests have been held proper where the request arose out of an incident or accident that "could have been caused" by a deficiency in airman skill or knowledge and requests have been improper where the technical competence of an airman could not have been the cause of the FAA's regulatory concern.

If lack of competence could have been a factor in the incident or accident that drew the FAA's attention, the re-examination request will be considered reasonable, without regard to the likelihood that a lack of competence had actually played a role in the event. The FAA only needs to show that such a basis for questioning competence has been implicated, not that a lack of competence has actually been demonstrated.

If an airman receives a request for re-examination, he or she may only refuse the request in very limited circumstances in which the airman is physically unable to undergo the re-examination. Otherwise, failure to submit to re-examination will expose the airman to suspension of his or her airman certificates pending completion of the re-examination.

Posted by Greg

March 03, 2006

Guidance Available For Recurrent Flight School Security Awareness Training

The TSA has issued Guidance for required recurrent Flight School Security Awareness (FSSA) training of flight instructors and flight school employees. The FSSA training applies to all active flight and ground instructors, whether independent or employed by a flight school, and to all flight school employees who have direct contact with flight students. You can find more information on the training in my article on the subject here.

The Guidance provides a way for those required to comply with the recurrent training requirement of 49 C.F.R. § 1552.23(d). The recurrent training is required annually, but when the end of the first year following the effective date of the regulation rolled around and the TSA had still not issued guidance as to what the recurrent training must include, TSA issued an exemption that extended the compliance date for the first recurrent training to eighteen months. Now the TSA has finally issued guidance for flight schools to follow in implementing a recurrent training program.

According to the Guidance, recurrent training must include review and documentation of the following: (1) Any new security measures or procedures implemented; (2) Any security incidents at the flight school or airport, and any lessons learned as a result of such incidents; (3) Any new threats posed by, or incidents involving, general aviation aircraft contained on the TSA Web site; and (4) Any new TSA guidelines or recommendations concerning the security of general aviation aircraft, airports, or flight schools.

The Guidance's 11 pages contain more details regarding specific tasks to be completed in connection with the four areas listed above. If you are implementing a recurrent training program or you want to confirm that an existing recurrent training program is consistent with these items, you should review the Guidance in detail.

Posted by Greg

March 02, 2006

FAA Issues Final Rule On SFAR 103

The FAA today published its Final Rule and Disposition of Comments regarding SFAR 103 previously published on January 7, 2005. SFAR 103 established procedures and some standards by which an air traffic controller may request a waiver of the mandatory separation age. The Final Rule confirms that SFAR No. 103 remains in effect as adopted and it also disposes of the comments it received.

The FAA received comments from 16 individuals. Many of them objected to the "exceptional skills and experience" standard that will be used to grant an exception but the FAA believes that the rule contains an appropriate standard to be used by the Administrator and it deferred to Congress's establishment of that standard in 5 U.S.C. 8335(a). In response to comments regarding the rules lack of reference to medical qualifications, the FAA stated that "[a]ny controller granted a waiver will still have to meet the rigorous medical standards for air traffic controllers, including passing the annual air traffic controller physical examination."

Although some comments objected to the rule's lack of appeal rights, the Final Rule states that all requests for waiver will be given "full and due consideration" and the granting of a waiver will be at the sole discretion of the administrator. Applicants will not have a right to appeal or grieve a denial or termination of an exemption.

As I indicated in my post at the time SFAR 103 was initially published, it isn't clear to me why an air traffic controller, who is required to meet medical qualifications similar to a pilot and has an equally significant role in air safety, should be able to obtain a waiver of the mandatory separation age of 56 when a pilot cannot obtain a waiver to the age 60 rule. Seems arbitrary and discriminatory to me. But until Congress legislates otherwise, it is almost certain that the FAA will stick by the age 60 rule without waiver.

Posted by Greg

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