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Aviation Law Discussions

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August 27, 2010

DOT Fines Air Ambulance Operator For Calling Someone Else's Helicopter Its Own

A recent article in Airport Business discloses that a non-profit air ambulance operator was recently fined $30,000.00 by the Department of Transportation ("DOT") for referring to another operator's helicopter as it's own. According to the article, in addition to operating its own aircraft on its own operating certificate, the air ambulance operator formed another entity with two partners for operation of a helicopter under a separate operating certificate. The parties intended that the helicopter would be operated exclusively for the benefit of the air ambulance operator.

For 16 years the air ambulance operator used the helicopter when it was needed. During that time the air ambulance operator's marketing and advertising referenced the air ambulance operator as staffing and operating the helicopter. It also published a newsletter in which it made references to "our medical helicopter," "our helicopter," or "our planes," in a manner that the DOT believed implied ownership and operation of the helicopter by the air ambulance operator, rather than the operator under whose certificate the helicopter was being operated. According to the DOT, the air ambulance operator's use of the personal pronouns constituted unfair and deceptive practices in the sales of air transportation, presumably in violation of 49 U.S.C. 41712.

Interestingly, the issue of "operational control" is not mentioned. Perhaps the other certificate holder did, in fact, maintain operational control over the helicopter flights operated for the air ambulance operator. If so, that would explain why a civil penalty action was initiated by DOT rather than a certificate or civil penalty action by the FAA. In the absence of an operational violation, the FAA wouldn't have any basis for an action.

Fortunately for the air ambulance operator, it was able to negotiate a reduced settlement with the DOT, probably with the help of an aviation attorney. However, in the article the manager for the operator stated that he wasn't sure why the DOT didn't just ask them to change the wording in their marketing. Good question.

My opinion is that the penalty was assessed because the DOT, and the FAA for that matter, believe that safety is more effectively accomplished through enforcement/punishment. However, in the absence of any alleged operational violations, I am not sure how forcing a non-profit operator to pay a fine furthers safety. I guess it is just business as usual for the DOT/FAA. And that's too bad.

Posted by Greg

August 24, 2010

NTSB Adds "Unmanned Aircraft" To Part 830 Reporting Requirements

In a Final Rule published today, the NTSB is amending its regulations on the notification and reporting of aircraft accidents or incidents under 49 C.F.R. Part 830 by adding a definition of "unmanned aircraft accident" and requiring that operators notify the NTSB of accidents involving those aircraft. This type of aircraft is also referred to as an "unmanned aircraft system" (UAS), "unmanned aircraft vehicle system" (UAVS) or remotely piloted vehicle (RPV).

Under the Final Rule, an unmanned aircraft accident means:

"an occurrence associated with the operation of any public or civil unmanned aircraft system that takes place between the time that the system is activated with the purpose of flight and the time that the system is deactivated at the conclusion of its mission, in which:

Any person suffers death or serious injury; or

The aircraft has a maximum gross takeoff weight of 300 pounds or greater and sustains substantial damage."

This definition excludes military unmanned aircraft, model aircraft, and commercial spacecraft operating under FAA waivers. The Final Rule will become effective October 25, 2010. If you would like further information regarding the Final Rule you may contact William English, Office of Aviation Safety, (202) 314-6686.

Currently these types of aircraft are predominantly used by the military. However, it is quite likely that they will see increased use by private, government and commercial entities in the future. As a result, I would expect to see a number of similar regulatory amendments in the future to accommodate and account for operation of these types of aircraft in the U.S. airspace.

Posted by Greg

August 20, 2010

Can A Private Pilot Legally Receive Reimbursement From An Employer For Fuel Used On A Business Trip?

A private pilot recently asked me about whether he could be reimbursed by his employer for fuel he uses in flying his personal aircraft in pursuit of his employer's business. (Apparently the pilot's territory included a number of states in the upper midwest). Unfortunately, he would not be able to receive reimbursement for his fuel expenses since the FAA would view that as compensation paid to him in violation of FAR 61.113. However, as long as his flying is only incidental to his business, and he does not carry passengers or property, an exception to the regulation would allow him to be paid his regular salary while flying his personal aircraft on company business.

Figuring out what is "incidental" can be difficult and will always depend upon the particular facts of each case. If you are in doubt, contact an aviation attorney for help!

Posted by Greg

August 18, 2010

Florida Mechanic Pleads Guilty to Aircraft Parts Fraud

According to a Summary published by the Department of Transportation Office of Inspector General ("OIG"), a mechanic pled guilty to making a false statement related to a false entry in an aircraft logbook. The mechanic admitted he made a false entry in the logbook for a Bell L-1 helicopter which stated that he completed and signed-off on an annual inspection when in fact he did not complete a thorough inspection of the helicopter and the helicopter was not airworthy. In connection with his plea, the mechanic agreed to permanently surrender his Airman and Mechanics certificates with Aircraft and Powerplant (A&P) ratings and Inspection Authorization (IA).

The mechanic is scheduled to be sentenced on October 28, 2010 and it will be interesting to see what type of sentence is imposed. Perhaps the sentence will be similar to a 2007 Alabama case in which a court barred a mechanic guilty of similar charges from working in the aviation industry during his 5 year probation period, although the mechanic's permanent surrender of his certificates in connection with his plea probably has the same effect.

The summary does not discuss whether any FAA enforcement action was taken against the mechanic's certificates prior to entry of the plea. However, it is safe to say that this case is yet another example of how a mechanic may be exposed to criminal liability in addition regardless of whether the FAA pursues any enforcement action. In any event, the mechanic presumably had the help of a criminal defense attorney, and hopefully an aviation attorney, to defend himself and to protect his rights.

Posted by Greg

August 17, 2010

New NTSB Administrative Law Judge Appointed

In a Press Release issued yesterday, the NTSB announced that Alfonso J. Montano has been appointed as an NTSB administrative law judge ("ALJ"). Judge Montano is replacing retired Judge Pope and will hear cases in Circuit II (Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina,Porto Rico, South Carolina, Tennessee, West Virginia). Judge Montano has been an ALJ for 15 years with the Department of Health and Human Services and the Social Security Administration and was a trial attorney with the Department of Justice before becoming an ALJ.

Although Judge Montano does not appear to have any aviation experience from a legal or judicial perspective, he does at least hold a private pilot certificate. It will be interesting to see how quickly he gets up to speed on aviation enforcement cases. Hopefully his experience as a private pilot will be a benefit to airman appearing in proceedings before him.

Posted by Greg

August 16, 2010

FAA Extends NBAA Small Aircraft Exemption

The FAA has once again extended the National Business Aviation Association's (NBAA) Exemption 7897d, 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 7897d to September 30, 2012. 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

DOT Releases Second Half 2010 SIFL Rates

The U.S. Department of Transportation has released the Standard Industry Fare Level (SIFL) rates for the six-month period from July 1, 2010 to December 31, 2010. 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 July 1, 2010 to December 31, 2010, are: 0500 miles $0.2243; 501-1,500 miles $0.1710; over 1,500 miles $0.1644; and Terminal Charge of $41.00. 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

August 11, 2010

Passengers Still Show Up At Security Checkpoints With Handguns

According to a recent post on The TSA Blog, at least two passengers a day are caught at security checkpoints with a gun in their carry-on luggage. According to the post, when the passengers are caught, the most common response is "I didn’t know it was in the bag." Unfortunately, that excuse works for the TSA just about as well as "the dog ate my homework" works for a high school teacher.

Once caught, a passenger potentially faces a number of consequences. First, the subsequent interaction with and interrogation by local law enforcement will quite often result in the passenger missing his or her flight. Next, the passenger could face criminal prosecution for violation of 49 C.F.R. 1540.11 or other local statutes that prohibit possession of a handgun at a checkpoint or in the secured area of an airport. Finally, the TSA could also initiate a civil penalty action seeking to impose a civil penalty/monetary fine against the passenger for violation of 49 C.F.R. 1540.11 The penalty could range in amount from $1,500 to $7,500, depending upon whether or not the handgun was loaded.

The TSA recommends, and I concur, that all passengers double check their carry-on baggage BEFORE arriving at the security checkpoint to confirm that they do not have a handgun or other prohibited item(s) in their luggage. Seems like a "no-brainer" to me. But, if you are caught "packing" at a checkpoint or in the secured area of an airport, hire an aviation attorney to help protect your rights.

Posted by Greg

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