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February 27, 2012

FAA Updates Aviation Safety Reporting Program

As you may know, the FAA publishes Advisory Circular 00-46 to provide guidance for compliance with the Aviation Safety Reporting Program ("ASRP"). Under the ASRP, if an airman files an ASRP form (also somewhat inappropriately referred to as the "NASA form" since NASA is only the administrator of the ASRP) within the time required, any sanction that may be imposed in a subsequent enforcement action can be waived. The program does not affect an actual finding of violation against the airman. Rather, it simply provides a waiver of any sanction the FAA might seek to impose for the violation.

The sanction waiver will be available provided that (1) the violation was inadvertent and not deliberate; (2) the violation did not involve a criminal offense, accident, or action found at 49 U.S.C. § 44709; (3) the person has not been found in any prior FAA enforcement action to have committed a regulatory violation for the past 5 years; and (4) the conduct of the airman giving rise to the violation did not exhibit incompetence or lack of qualification.

Recently the FAA updated this advisory circular to Advisory Circular 00-46E. The revised advisory circular changes the language governing when an ASRP report must be filed. Under earlier guidance, the report had to be filed within 10 days of the incident or occurrence. However, under the revised advisory circular to take advantage of the program a person must prove "that, within 10 days after the violation, or the date when the person became aware or should have been aware of the violation, he or she completed and delivered or mailed a written report of the incident or occurrence to NASA."

This new language appears to be less restrictive and will hopefully extend the availability of the program to factual situations that, by their nature, were previously precluded from participation (e.g. discovery of a mechanic's error well after the 10 day period has ended). However, it is unclear how strict the FAA or the NTSB will interpret the new language. Although I am cautiously optimistic, we'll have to wait and see.

Posted by Greg

February 24, 2012

Pilots Of Charitable Medical Flights May Now Accept Fuel Reimbursement

As you may know, FAR 61.113(c) prohibits a private pilot from paying less than his or her pro-rata share of the operating expenses of a flight. In the context of charitable medical flights (e.g. Angel Flight, Lifeline Pilots, Volunteer Pilots Association etc.), pilots have typically been paying all of the operating expenses of such flights without any reimbursement. However, under the FAA Reauthorization and Reform Act of 2011, that may change.

Section 821 of the FAA Reauthorization now requires the FAA to interpret FAR 61.113(c) to "allow an aircraft owner or operator to accept reimbursement from a volunteer pilot organization for the fuel costs associated with a flight operation to provide transportation for an individual or organ for medical purposes (and for other associated individuals)." In order to qualify, the aircraft owner or operator has to volunteer to provide such transportation and he or she has to notify the passengers that the flight is for charitable purposes and is not subject to the same requirements as a commercial flight.

However, along with the good also comes the unknown and, potentially, bad. The Reauthorization also suggests that the FAA "may impose minimum standards with respect to training and flight hours for single-engine, multi-engine, and turbine-engine operations conducted by an aircraft owner or operator that is being reimbursed for fuel costs by a volunteer pilot organization, including mandating that the pilot in command of such aircraft hold an instrument rating and be current and qualified for the aircraft being flown to ensure the safety of flight operations."

Thus, it is possible that the FAA could promulgate regulations with which a volunteer pilot/charitable flying organization would have to comply in order for the pilot to receive reimbursement. Granted, many of the charitable flying organizations already have policies and standards for pilot qualifications, training and currency. However, depending upon what the FAA decides, those policies and standards may or may not be sufficient. Fortunately, the new interpretation is effective now while any rulemaking by the FAA will take many months before it would be effective.

Posted by Greg

February 23, 2012

FAA Reauthorization Mandates Oversight Of Part 141 Flight Schools

As you may know, the FAA Reauthorization and Reform Act of 2011 has now been signed into law. Buried within the law is a section that mandates FAA oversight of Part 141 flight schools. Section 561 requires the FAA to submit a plan to congress by 2/13/2013 that details how the FAA will oversee Part 141 flight schools. Specifically, the plan must include measures "(1) ensuring that the curriculum and course outline requirements for such schools under subpart C of such part are being met; and (2) conducting on-site inspections of each such school not less frequently than once every 2 years."

Additionally, Section 561 requires the General Accounting Office ("GAO") to "conduct a comprehensive study of flight schools, flight education, and academic training requirements for certification of an individual as a pilot." The GAO must then submit a report with the study's results to the House of Representatives Committee on Transportation and Infrastructure and the Senate Committee on Commerce, Science, and Transportation by 8/6/2011.

Since Part 141 flight schools are already regulated and subject to FAA oversight, it is unclear exactly what this mandated oversight will entail. Will it be more? Could be. Will it be less? Doubtful. Or will it be something else? Possibly. I guess we will have to see what the FAA submits. Also, with such a broad directive, it will be interesting to see the results of the GAO study when they are released. Should make for good reading.

Posted by Greg

February 15, 2012

DOT Releases First Half 2012 SIFL Rates

The U.S. Department of Transportation has released the Standard Industry Fare Level (SIFL) rates for the six-month period from January 1, 2012 to June 30, 2012. 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, 2012 to June 30, 2012, are: 0500 miles $0.2455; 501-1,500 miles $0.1872; over 1,500 miles $0.1800; and Terminal Charge of $44.88. 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

February 13, 2012

Can You Log PIC Flight Time In IMC Without An Instrument Rating?

According to a December 14, 2011 Legal Interpretation, yes. The FAA was presented with a scenario in which Pilot A and Pilot B both hold airplane single engine land private pilot certificates. They fly a cross-country trip together in a single engine land airplane. The flight is conducted in IMC under an IFR flight plan filed by Pilot A, who is instrument rated, while Pilot B is not. Although Pilot A acts as the actual PIC for the entire flight, for a half-hour leg of the flight during IMC, Pilot B is the sole manipulator of the controls. The FAA was then asked the question "whether Pilot B can log actual instrument and PIC flight time for the portion of the flight during which Pilot B was the sole manipulator of the controls."

The Interpretation initially noted that for the purpose of logging PIC time under § 61.51(e), a pilot must hold ratings for the aircraft (category, class and type, if a type rating is required) rather than for the conditions of flight. It then concluded that even though Pilot B was not instrument rated and the flight was conducted in IMC, Pilot B could log PIC flight time for the portion of the flight during which Pilot B was the sole manipulator of the controls since he was properly rated in the aircraft. The FAA went on to note that Pilot B could also log actual instrument time for the portion of the flight during which Pilot B was the sole manipulator of the controls under FAR 61.51(g)(1).

Next, the Interpretation addressed the logging of flight time by Pilot A. According to FAR 61.51 (e)(1)(iii), a pilot acting as PIC may only log PIC time if more than one pilot is required under the aircraft's type certificate or the regulations under which the flight is conducted. Since only one pilot was required for the flight in the scenario presented to the FAA, the Interpretation concluded that Pilot A could not log PIC time for the portion of the flight during which Pilot B was the sole manipulator of the controls. The FAA reached this conclusion in spite of the fact that Pilot B could not act as PIC (no instrument rating) and Pilot B was not a required flight crewmember for any portion of the flight under the aircraft's type certificate or the regulations under which the flight was conducted.

What can we learn from this Interpretation? For starters, the regulations distinguish between "acting" as PIC and "logging flight time" as PIC. So, it is possible that by "acting" as PIC you can have the responsibility of a PIC, along with the potential liability, but you can't log that flight time as PIC. Doesn't seem fair, but that's what the regulations provide.

Posted by Greg

February 10, 2012

Don't Accept A Clearance If It Will Result In You Violating The Regulations

In a recent Legal Interpretation issued by the FAA's Office of Chief Counsel, an individual requested an interpretation of the phrase "necessary for takeoff or landing" as used in FAR 135.183(b). Apparently the individual operated single-engine Cessna Caravan aircraft in Part 135 operations between the Bahamas and Fort Lauderdale, Florida, along the FAA's published DEKAL TWO arrival route. When the flight reached the DEKAL fix, 30 miles from shore, air traffic control (ATC) usually instructed the flight to descend to4,000 feet to separate turboprop traffic from jet traffic.

The Interpretation initially observed that FAR 135.183 prohibits a single engine aircraft, when carrying passengers, from operating over water unless the aircraft is within power-off gliding distance from land, or when it is necessary for take off or landing. It also noted that to determine whether an altitude is "necessary for takeoff or landing" you have to look at "whether that portion of the flight is necessary to permit the pilot to transition between the surface and the en route or pattern altitude in connection with a takeoff or landing."

Applying the facts it was provided, the FAA explained that descent to 4,000 feet at the DEKAL fix would not be necessary for landing because the altitude was assigned for traffic separation, and the Caravan's performance would not require it to be at the assigned altitude for approach into the destination airport. In response to the individual's concern regarding compliance with FAR 91.123 (requiring compliance with ATC clearances and instructions), the Interpretation cited Chapter 4-4-1(a) of the Aeronautical Information manual for the proposition that "an ATC clearance 'is not authorization for a pilot to deviate from any rule, regulation, or minimum altitude.'"

It then concluded that, rather than accepting a clearance that would put the Caravan beyond power-off glide distance from shore, and violate FAR 135.183, "the operator would be required to select another route or request a different clearance in order to maintain an altitude that keeps the aircraft within power off glide distance from shore."

This Interpretation is a good reminder that the pilot is ultimately responsible for compliance with the regulations applicable to his or her flight. Yes, you need to comply with ATC instructions to avoid violating FAR 91.123. However, if ATC's instructions would result in FAR violations, the pilot has a duty to reject those instructions. Not an easy decision, I know. Hopefully you won't find yourself in that position.

Posted by Greg

February 07, 2012

Must A Pilot Always Demonstrate A Circling Approach During A Part 135 Instrument Proficiency Check? Not Necessarily.

The FAA's Office of the Chief Counsel recently issued a Memorandum responding to a letter regarding demonstration of circling approaches during Part 135 competency checks and instrument proficiency checks. The letter's inquiry specifically focused on the conduct of such checks by an operator that is not authorized to conduct IFR circle-to-land approaches.

The Memorandum initially noted that an instrument proficiency check under FAR 135.297 need only include the standard instrument approaches involving navigational facilities which the pilot is to be authorized to use in operations for the Part 135 operator. It further observed that FAR 135.297(b) "requires that a pilot qualifying to use an instrument approach procedure must perform 'one straight-in approach, one circling approach, and one missed approach' for each procedure demonstrated."

However, the Memorandum then noted that FAA policy does not require pilots for Part 135 operators to demonstrate a circling approach if the Part 135 operator is not authorized to conduct such maneuvers in IFR conditions. As a result, the Memorandum concluded that since the Part 135 operator referenced in the letter was not authorized to conduct circling instrument approaches in IFR conditions, "it follows that its pilots are not required to demonstrate a circling approach to satisfy the requirements of § 135.297."

Nice to see the FAA taking a position that makes sense. After all, why should a pilot have to prove proficiency in a maneuver the pilot is not legally authorized to perform when carrying out his or her duties? Of course, that's not to say that a pilot shouldn't be proficient in such maneuvers anyway, at least from a safety perspective.

Posted by Greg

February 06, 2012

Can A Mechanic Be Prosecuted For Falsification Of Maintenance Records?

As you may be aware, cases in which the FAA alleges that a mechanic has falsified maintenance records usually result in revocation of all airman certificates (mechanic, pilot and medical). Standard FAA policy. But, unfortunately, revocation isn't the worst consequence a mechanic can face in a falsification case. Criminal prosecution, and its more severe consequences, is becoming more frequent. For more information on this growing trend, please read my latest article Beyond FAA Enforcement: Criminal Prosecution For Falsification Of Maintenance Records.

Posted by Greg

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