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August 30, 2006

FAA Issues Bulletin Allowing "nine or less" Part 135 Operators To Self-Issue Ferry Permits

On August 14, 2006, a Flight Standards Handbook Bulletin for Airworthiness (HBAW) was issued August 14 providing a means for Part 135 "nine-or-less" operators to issue their own Special Flight (ferry) permits. "Nine or less operators" are those who maintain and inspect their airplanes in accordance with FAR 135.411(a)(1). Prior to the issuance of HBAW 06-03, these operators were not allowed to self-issue ferry permits. Rather, these operators had to obtain ferry permits from the local FSDO office during normal business hours. For operators who operated flights at night, this was a problem.

HBAW 06-03 now allows an "organizational designee" of the operator (someone authorized by the FAA who is a part of the operator's organization, but not the operator's director of maintenance) to issue a ferry permit. Self-issued ferry permits that are transmitted to remote locations via facsimile without inspection of the aircraft by the designee will also be allowed. Operators will need to establish a program approved by the FAA allowing issuance of ferry permits by the designee and to amend the operator's operations manual accordingly.

HBAW 06-03 will eventually be incorporated into Order 8300.10, Airworthiness Inspector's Handbook. Until that time, for a more detailed explanation of the new procedure and its requirements, "nine or less" Part 135 operators should thoroughly review HBAW 06-03 and/or discuss it with their principal maintenance inspectors.

Posted by Greg

August 29, 2006

Service Bulletins Clarified

As you may recall, the NTSB recently issued an opinion that a manufacturer could mandate compliance with service bulletins by incorporating them by general reference into its maintenance manuals. This opinion was contrary to the FAA's longstanding position that compliance with service bulletins was not mandatory unless incorporated into an airworthiness directive or otherwise required by regulation. In response to the NTSB opinion and a private request, the FAA recently issued a Legal Interpretation addressing this issue. For an analysis and discussion of this Legal Interpretation, please read my new article on the subject here.

Posted by Greg

August 24, 2006

FAA Changes Policy On Distribution of AD's and SAIB's

According to a Notice of Policy Change published today, the FAA will be limiting its distribution of airworthiness directives and special airworthiness information bulletins via U.S. Mail. The policy change is part of the FAA's transition to "full electronic distribution of AD's and SAIB's."

Under the new policy: (1) the FAA will no longer mail AD corrections (corrections that don't receive a new amendment number and AD number) to affected owners and operators (they will continue to be published in the Federal Register and on the FAA's website); (2) ADs applicable to a certain engine model will only be mailed to the owners and operators who have registered their engine, not to the registered aircraft owners and operators referenced in the AD; (3) the FAA will only mail the regulatory text, or ``body'', of ADs to registered owners and operators(the balance of the information will still be available via the Federal Register or FAA website); (4) the FAA will continue to mail or fax EADs to affected owners and operators, but will no longer mail the final rule version; and (5) the FAA will no longer mail SAIBs to individual owners, operators, or repair stations(these will be available via a new e-mail subscription service which can be accessed here.

Comments to this planned policy change must be submitted by September 8, 2006. You can also obtain further information regarding this planned change by contacting Mary Ellen Anderson, Federal Aviation Administration, Aircraft Certification Service, Aircraft Engineering Division, Delegation and Airworthiness Programs Branch, AIR-140, 6500 S. MacArthur Blvd., Oklahoma City, Oklahoma 73125; phone: (405) 954-7071; fax: (405) 954-2209.

Posted by Greg

August 18, 2006

FAA Extends NBAA Small Aircraft Exemption

The FAA has once again extended the National Business Aviation Association's (NBAA) Exemption 7897, as amended. The NBAA's Small Aircraft Exemption, as it is called by NBAA, has been in existence since 1994. The exemption allows NBAA Members to operate small civil airplanes and helicopters of U.S. registry under the operating rules of 14 CFR 91.503 through 91.535 and to select an inspection program as described in 14 CFR 91.409(f). The exemption does not apply to large or turbo-jet powered, multi-engine aircraft.

To take advantage of the exemption, the aircraft operator must be a NBAA member. Only those operations listed in 14 CFR 91.501(b) (1) through (7) and (9) may be conducted under the authority of the exemption. Additionally, an aircraft operator will need to select an inspection program under 14 CFR 91.409(f) and will need to provide certain information to its local FSDO. These and other conditions and limitations are contained in the letter extending the exemption. A copy of the letter extending the exemption is available for review here.

If an aircraft operator elects to operate under this exemption, it is suggested that a copy of the exemption and all related paperwork be carried on the aircraft. The extension extends the term of Exemption 7897 to September 30, 2008. For further information regarding the Exemption and the additional requirements for qualification to operate under the Exemption, check out the NBAA's website here.

Posted by Greg

August 17, 2006

Untimeliness Is Fatal To Appeals In Civil Penalty Actions

In the past, I have discussed the fatal effect of untimely appeals in the FAA certificate action context. A recent series of decisions reveals that failure to timely appeal a decision or file an appeal brief is also fatal to appeals in FAA civil penalty actions. Under 14 CFR 13.233, an appeal must be filed within 10 days of the ALJ's initial decision, if oral, or 10 days from the date of service of the initial decision, if written. The appeal is then perfected by filing an appeal brief within 50 days of the ALJ's initial decision, if oral, or 50 days from the date of service of the initial decision, if written.

In the Matter of Seaquest Expeditions discloses a case in which Seaquest filed a timely appeal of the ALJ's written decision, but then failed to perfect the appeal by timely filing its appeal brief. In fact, Seaquest didn't ever file an appeal brief. As a result, the FAA's motion to dismiss the appeal was granted.

In the matter of Blong Xiaong is another situation in which the appeal was accepted as timely filed (even though it was sent to the wrong office), but the appeal was never perfected by the timely filing of an appeal brief. Similar to Seaquest, Xiong never filed an appeal brief and the FAA's motion to dismiss was granted on that basis.

In the matter of Aero-Tech, Inc. is also a case in which a timely appeal was filed, but then the appeal was never perfected with the timely filing of an appeal brief. In the absence of a timely appeal brief or a request for an extension within which to file the brief, Aero-Tech's appeal was dismissed.

In the matter of Keith P. Staley involved a failure to timely file an appeal. In this case, Staley did not submit an answer to the FAA's complaint nor did he respond to the ALJ's procedural order or order to show cause. In fact, Staley also failed to attend the hearing. However, after the hearing and resulting written initial decision against Staley, he did file an appeal of that decision. Unfortunately, he filed the appeal six days late without citing any reason for the tardy filing. As a result, his appeal was dismissed.

As you can see, untimely filing or failure to file in a civil penalty action will result in dismissal of an appeal just as quickly and just as finally as in a certificate action. Although it is possible to request an extension of time within which to file, this may or may not be granted. If a deadline is not met, you will need to show good cause for the untimely filing in order to avoid dismissal. Unfortunately, good cause is a high standard that is difficult to meet. It is also not precisely defined in the rules. In order to preserve your appeal rights and avoid having to request an extension or otherwise meet the burden of establishing good cause, you should file within the time period allowed by the rules.

Posted by Greg

August 11, 2006

Passport To Be Required For Passengers Flying Into The U.S. From Canada, Mexico And Bermuda

According to a Notice of Proposed Rulemaking published today, the Bureau of Customs and Border Protection is proposing to require that United States citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico entering the United States at air ports-of-entry and most sea ports-of-entry present a valid passport for entry into the U.S. The NPRM would not apply to land border ports-of-entry and certain types of arrivals by sea (ferries and pleasure vessels). These types of entry will supposedly be addressed in a separate, future rulemaking.

The NPRM discusses the currently entry requirements from those countries, the comments CBP received to its advanced notice of proposed rulemaking published back in December of 2005, the proposed new requirement and limited, specific exceptions to the new requirement. Comments to the NPRM are due no later than September 25, 2006.

If you would like further information you should review the NPRM in greater detail or you may contact Robert Rawls, Office of Field Operations, Bureau of Customs and Border Protection, 1300 Pennsylvania Avenue, NW., Room 5.4-D, Washington, DC 20229, telephone number (202) 344-2847 or Consuelo Pachon, Office of Passport Policy, Planning and Advisory Services, Bureau of Consular Affairs, telephone number (202) 663-2662.

Posted by Greg

August 10, 2006

Fallout From Operation Safe Pilot Continues

As predicted back in August of 2005, the investigation of pilots performed during Operation Safe Pilot has spread to other areas of the country. This information came to light after a Department of Transportation Office of Inspector General's laptop computer was stolen. The stolen laptop contained personal identification information (names, addresses, social security numbers and dates of birth) for approximately 133,000 Florida residents. Although unfortunate, this situation has also disclosed that pilots in areas outside the initial geographic scope of the Operation Safe Pilot investigation are now being investigated to determine whether their airman and/or medical certificates were obtained by improper means.

According to a Press Release issued by the inspector general, "[s]pecial Agents in OIG’s Miami office were using the Miami-Dade CDL information and the Florida airman certificate information in connection with multi-agency task forces focusing on the use of fraudulent information to obtain CDLs or airman certificates. Past reviews have identified people ineligible to hold these certificates and licenses due to disqualifying prior criminal history or the use of fraudulent social security numbers."

The press release does not specifically reference the comparison of social security disability claims against airman records. However, I would be surprised if this aspect was not included in the investigation. It is probably also likely that these same types of investigations are occurring in other states/regions as well. Stay tuned, I doubt we have heard the last on this issue.

Posted by Greg

August 08, 2006

NTSB Issues Part 135 Safety Recommendations

The NTSB today issued two safety recommendations relating to Part 135 operations. The recommendations contained in A-06-42 and A-06-43 arose out of the investigation into the Challenger accident in Montrose, CO on November 28, 2004 in which the aircraft crashed during its attempted take-off in snowy conditions.

A-06-42 actually contains two separate recommendations. A-06-42's first recommendation relates to "commercial airplanes" generally and recommends that the FAA "[d]evelop visual and tactile training aids to accurately depict small amounts of upper wing surface contamination and require all commercial airplane operators to incorporate these training aids into their initial and recurrent training." A-06-42's second recommendation applies specifically to Part 135 operators and reiterates a previous recommendation that the FAA "[r]equire that 14 Code of Federal Regulations (CFR) Part 135 on-demand charter operators that conduct dual-pilot operations establish and implement a Federal Aviation Administration-approved crew resource management training program for their flight crews in accordance with 14 CFR Part 121, subparts N and O."

A-06-43 recommends that the FAA change Part 135 to require that on-demand air taxi operators provide the following information to a passenger when the passenger contracts for the flight: "the name of the company with operational control of the flight, including any "doing business as" names contained in the operations specifications; the name of the aircraft owner; and the name(s) of any brokers involved in arranging the flight." This also relates to the FAA's Draft Ops Spec A008 that specifically addresses the operational control a Part 135 operators must exercise. Interestingly, the NTSB noted that operational control, or lack thereof, was not directly causal to the accident. However, it then stated that "a general lack of transparency between the business operations and the consumers who are buying their services, hindering consumers' ability to identify the carrier and make choices based on safety and that "[t]his lack of transparency may become more critical as the popularity of these operations continues to rise."

Keep in mind that these are only the NTSB's recommendations and that the FAA is not required to follow the recommendations. Oftentimes, for a variety of reasons, the FAA does not follow or implement the NTSB's safety recommendations. However, with respect to the operational control issue, it is no secret that the FAA is dealing with this issue, for good or for bad, depending upon your perspective.

Posted by Greg

August 01, 2006

Aircraft Insurance Coverage: Will You Have It When You Need It?

Most aircraft owners purchase insurance, whether it is simply liability coverage or also hull coverage. In some instances, state law requires the purchase of aircraft liability insurance. In most other cases, aircraft owners purchase aircraft insurance to protect themselves in the event of an accident or other loss arising from aircraft operations. When you purchase an aircraft insurance policy you expect that the policy will provide coverage when you need it. However, that isn’t always the case. Sometimes coverage is denied.

For more information on aircraft insurance coverage and under what circumstances an insurer may deny coverage, read my latest article on the subject here.

Posted by Greg

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