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Aviation Law Discussions

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A site devoted to aviation law, safety and security.

December 09, 2011

When Is A Flight Manual "Current" Under FAR 91.9(b)(1)?

In a recent Legal Interpretation, the FAA's Office of the Chief Counsel was asked whether an aircraft flight manual which was provided at the time that an aircraft was purchased would be considered the "current" flight manual for the purposes of FAR 91.9(b)(1) or whether the operator would need to have the latest revision of the manual in order to legally operate the aircraft.

The Interpretation initially noted that FAR 91.9(b)(1) "prohibits operation of an aircraft for which an [flight manual] is required if that aircraft does not contain a copy of the "current" approved [flight manual]". It then went on to observe that in order to comply with the Administrative Procedures Act ("APA"), the word "current" could not impose an ongoing obligation, but rather only apply as of the time that the manual was adopted by the owner or operator. However, the Interpretation qualified that observation by stating that a flight manual that was subsequently amended by an Airworthiness Directive ("AD") would be considered a "current, approved" flight manual for purposes of FAR 91.9(b)(1).

As a result, the Interpretation concluded that "the word 'current', as it is used in FAR 91.9(b)(1), refers to the version of the [flight manual] that was in place at the time that the aircraft in question was purchased and includes any subsequent AD-mandated changes that were made to the [flight manual]. It went on to explain that "[t]he word "current" does not encompass any subsequent changes that were made to the [flight manual] that were not mandated by an AD or other rulemaking because those changes did not go through the notice and comment rulemaking process."

Keep in mind that this Interpretation only applies to operations under FAR Part 91. Operations under other parts of the FARs are governed by different regulations which may interpret the word "current" differently than in the context discussed in this Interpretation. If you have questions or concerns regarding interpretations in other contexts, contact me directly and I would be happy to discuss the issue with you.

Posted by Greg

December 08, 2011

NTSB Proposes Amendment To Reporting Requirements For ACAS Advisories

In a Notice of Proposed Rulemaking published today the NTSB is proposing to amend the notification and reporting requirements of 49 CFR 830.5(a)(10) with regard to Airborne Collision and Avoidance System (ACAS) advisories. Currently the regulation requires ACAS advisory reporting "[w]hen an aircraft is being operated on an instrument flight rules flight plan and compliance with the advisory is necessary to avert a substantial risk of collision between two or more aircraft" or "to an aircraft operating in class A airspace."

Under the proposed amendment, the following ACAS advisories would need to be reported:

When an aircraft is being operated on an instrument flight rules flight plan and compliance with the advisory is necessary to avert a substantial risk of collision between two or more aircraft; or
To an aircraft operating in class A airspace, unless the advisory received only instructs the pilot to "monitor vertical speed."

According to the NTSB, it "believes the proposed change to section 830.5(a)(10) will continue to assist in achieving the NTSB's purpose of improving aviation [[Page 76688]] safety, while ensuring the language of the rule only requires notifications regarding specific ACAS advisories that the NTSB may seek to investigate."

Comments to the proposed amendment are due no later than February 6, 2012. If you would like more information, you may contact Scott Dunham, National Resource Specialist--ATC, Office of Aviation Safety, (202) 314-6387.

Posted by Greg

December 06, 2011

BARR Is Back In Business

The FAA announced in a December 2, 2011 Press Release that, "effective immediately, general aviation or on-demand charter aircraft owners or operators seeking to keep their aircraft’s registration number from being displayed over public data systems during flight no longer need to submit a Certified Security Concern to the FAA." As you may recall, on June 3, 2011 the FAA issued a policy that required aircraft owners or operators to submit a Certified Security Concern in order to have their aircraft tail number blocked from view on the FAA’s Aircraft Situation Display to Industry (ASDI) or National Airspace System Status Information (NASSI).

This change in policy represented a reversal of its longstanding implementation of BARR and allowing aircraft owners and operators to block their tail numbers without having to justify their reasons to the FAA. However, according to the Press Release, "[o]wners and operators seeking to have their aircraft tail number blocked from these data feeds can now submit a blocking request directly to the FAA without stating a reason for the request."

If you would like to have your tail number blocked, you may submit your blocking request to the FAA via e-mail. You should send the following information to the FAA at "CertifiedSecurityConcern@faa.gov":

Aircraft owner or operator name;
Email address the FAA can utilize to communicate with the aircraft owner/operator about the blocking request;
Call sign (Tail Number) to be blocked - multiple tail numbers (call signs) can be submitted in one request; and
Blocking level desired (ASDI Vendor Level or FAA).

If you don't have access to e-mail, you may submit your blocking request to the FAA via regular mail to: FAA Certified Security Concern, ATO System Operations Services, Room 1002, 800 Independence Avenue, SW, Washington, DC 20591.

Posted by Greg

December 05, 2011

FAA Maintains Percentage Rates For Random Drug And Alcohol Testing Of Safety-Sensitive Employees

In a Notice published December 1, 2011, the FAA stated "that the minimum random drug and alcohol testing percentage rates for the period January 1, 2012, through December 31, 2012, will remain at 25 percent of safety-sensitive employees for random drug testing and 10 percent of safety-sensitive employees for random alcohol testing." Since the reported random drug test positive rate for 2010 was less than 1.00% (it was actually 0.503%, down from 0.534% in 2009) and the minimum random alcohol test rate for 2010 was less than 0.50% (it was actually 0.011%, down from 0.088% in 2009) the FAA may continue the current rates for calendar year 2010. Interestingly, both of these actual rates have been declining since at least 2008.

For further information regarding the annual random testing percentage rates you should review FAR Part 120.109(b) (for drug testing), and FAR Part 120.217(c) (for alcohol testing) or you may contact Ms. Vicky Dunne, Office of Aerospace Medicine, Drug Abatement Division, Program Policy Branch (AAM–820), Federal Aviation Administration, 800 Independence Avenue SW., Room 806, Washington, DC 20591; Telephone (202) 267–8442.

Posted by Greg

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