Recently the NTSB remanded a case back to the administrative law judge ("ALJ") for a hearing on an independent charge of violating FAR 91.13(a) (careless and reckless). In the case, Administrator v. Hollabaugh, the FAA suspended the airman's airline transport pilot certificate for alleged violations of FARs 135.263(a) and 135.267(d) (flight and duty time regulations), as well as FAR 91.13(a) which the FAA alleged was a residual violation based upon the other violations. Based upon the airman's admission of all allegations except the careless and reckless charge, the FAA moved for summary judgment on all counts.

In response to the FAA's motion, the airman argued that the residual FAR 91.13(a) charge was inappropriate since violations of FARs 135.263(a) and 135.267(d) were not operational violations. The FAA then filed an "errata" to its motion which stated that reference to the FAR 91.13(a) violation as a residual charge was an error "because the factual allegations in the [c]omplaint effectively charge [r]espondent with an independent charge of carelessness under FAR 91.13(a). The ALJ accepted the errata and then granted the FAA's motion on all counts.

On appeal to the full Board, the airman again argued that "granting summary judgment on the FAR 91.13(a) charge was inappropriate because FAR 91.13(a) only applies to operational violations" and since neither FAR 135.263(a) nor FAR 135.267(d) is an operational violation, his admissions concerning those violations did not prove that he also violated FAR 91.13(a). Recognizing that the Board had not faced this issue before, it initially reiterated that the FAA needs "to plead explicitly in the complaint whether a charge under FAR 91.13(a) is residual or independent."

However, accepting that the charge against the airman was an independent charge, the Board then determined that the FAA had failed to produce facts supporting an independent violation of FAR 91.13(a) and, as a result, summary judgment was inappropriate. The Board observed that the FAA's "correction" to allege an independent violation did not operate to the prejudice of the airman because the independent charge then required "a higher threshold of evidence than a residual charge." Consequently, since the FAA had not provided proof, the Board remanded the case to the ALJ to hold a hearing solely on the independent FAR 91.13(a) charge.

Nice to see the FAA's untimely attempt to fix its pleading error backfire in favor of the airman. At least now the FAA will have to prove the independent violation of FAR 91.13(a) rather than simply tacking it on, although I don't know that the hearing will result in a different outcome since it will still be in front of Judge Geraghty. However, hopefully the FAA will at least take note of the Board's admonition and draft careless and reckless allegations more accurately in the future.

Since it is the time of year for resolutions, I thought I would propose some resolutions that I think would go a long way towards making 2012 a happy new year for aviation:

Resolutions by the FAA

Resolve to be consistent: Let's get rid of the inconsistent interpretation and application of the regulations not only between inspectors, but that also differ between FSDOs and even regions. If compliance is a goal, then making sure everyone is working from the same page can only enhance understanding and compliance.

Resolve to use common sense: We shouldn't waste agency funds and resources pursuing actions that do not further the goals of safety and compliance. For example, pursuing a civil penalty action against an airman for conduct that occurred before the agency revoked all of his airman certificates, when the revocation already caused the airman to file for bankruptcy, simply does not make sense. Similarly, initiating an enforcement action because an inspector has an axe to grind with an airman, should be avoided.

Resolve to actually use remedial training (and not just when a U.S. Senator is the alleged violator): If safety truly is one of the FAA's mandates (and it is), then it is unclear how a suspension that allows a pilot's skills to lapse for a period of time makes that pilot, or the aviation system as a whole, safer. For operational violations, why not require additional training to make sure the pilot will have the skills and knowledge to ensure future compliance?

Resolutions by Aircraft Buyers

Resolve to trust, but verify: Trust is an honorable quality. But don't trust blindly. When a seller tells you something, don't just take the seller at his or her word. Verify that what you are being told is actually the truth. For example, perform due diligence including a title search and name searches for the seller to discover any judgments, liens, bankruptcies or security interests

Resolve to use a purchase agreement: Using an aircraft purchase agreement can help prevent confusion and misunderstandings. If the agreement clearly explains how the transaction will happen, when it will happen and what is included in the deal, the greater the likelihood that the buyer and seller will each know the other party’s expectations and the less chance for surprises or misunderstandings. Additionally, the law in most states requires that a contract for an amount greater than $500.00 be in writing in order for it to be enforceable. This is called the statute of frauds. Although exceptions to this legal doctrine exist, complying with the law is usually safer than hoping you will be able to take advantage of an exception.

Other Resolutions

Resolve to file NASA/ASRP forms: If you are involved in an incident or something happens during a flight that makes you worried the FAA may become involved, make sure you file within 10 days in order to preserve your right to argue that any sanction the FAA may wish to impose should be waived. Since the program does not limit the number of times you can file, take advantage it, often.

If I am asked to "call the tower" or to talk to an FAA inspector or if I receive a letter of investigation from the FAA, I resolve to talk with an aviation attorney before I respond: Rather than wasting the opportunity to mitigate damage, minimize investigation or avoid providing admissions or other evidence that will later be used against you by the FAA, consult with an aviation attorney to find out where you stand or, at a minimum, to have an aviation attorney run interference between you and the FAA. Although FAA enforcement actions are not criminal proceedings, they have the potential to significantly limit, if not revoke, your privilege to operate an aircraft. Protect that privilege


Wishing everyone in the aviation industry a happy and prosperous new year!

This past year was a ‘Bear’ for many of us in the Business Aviation Industry, and it is a common-held feeling amongst most of us that the exit of 2011 is a very welcome event indeed. All hopes and aspirations are now locked onto 2012 like some kind of tractor beam, all of us willing that this year will be “the one!”

With so much emotion wrapped up in this collective hope, I felt that it would not be inappropriate for me to organize the hopes that we the majority wish that all Corporate Executive Business Aircraft Owners will do better this year by adopting the following top-six list of New Year’s Resolutions as their own; so here goes:

6.            To keep track of your business use of your aircraft and keep a running total of how much money was saved; how much money was made; what business opportunities resulted from; what trips would have been impossible...all because you used your own aircraft to make these trips.

5.            Task your Director of Operation/Chief Pilot/Director of Maintenance as well as Contract with an outside audit company to confirm and report on all of the following:

How does your aircraft compare, from a safety systems standpoint, to a brand new aircraft?

What is the current market and taxable value of your aircraft?

Are you properly and adequately insured?

Is the current aircraft that you own suitable for your current flight profile, and how will it stack up against your future anticipated usage and missions?

Are your flight activities being properly documented for all applicable taxable events and reimbursements?

Are your aircraft maintenance and inspection events being accomplished in accordance with the maintenance requirements set by the manufacturer, on-time, within a reasonable budget, and are records being properly entered and protected?

Are you subscribed to the right service and warranty programs commensurate with your flight activities?

Do you have an effective and cost conscious fuel purchase procedure in place that is being adhered to?

Are your pilots recurrency training adequately being updated to ensure that all known threats are covered both in the classroom and the simulator?

4.            To determine how well the interface between you, your office and your flight department work to ensure that your wishes and needs as well as the logistical issues of your aviation executives are communicated both efficiently and freely shared between each applicable person that is ‘need to know?’

3.            To meet with your crew (if applicable) and to ask them about how they are incorporating the principles of the Safety Management System (SMS) into all of your business operations.

2.            To review your past three years of how you have historically used your business aircraft during that period of time: to what destinations, why you used the aircraft, who else you allowed to use your aircraft; what other trips were made on business but the aircraft was not used; all with an eye to see where and how the aircraft could be better utilized to improve the overall bottom line of everything within your world.

1.            To tell everyone that you come into contact with both in a business meeting situation (unless strategically it does make sense to do so), and politically, how much you value your business aircraft, and how significant its availability and use is to the bottom line of your business.

Now please go out do the right thing for both yourself and the million, or so of us who support you.

ONLINE ADVANCE PURCHASE TICKETING NOW OPEN FOR EAA AIRVENTURE 2012
Admission tickets, camping for all dates, and aircraft rides available

EAA AVIATION CENTER, OSHKOSH, Wis. — (Dec. 20, 2011) — Advance purchase admission tickets and camping are now available for the 60th annual edition of EAA AirVenture Oshkosh, providing greater convenience for those travelling to “The World’s Greatest Aviation Celebration.” The week-long 2012 event will be held July 23-29 at Wittman Regional Airport in Oshkosh.

Advance admission ticketing is made possible through support from Jeppesen.

Both EAA members and non-members can purchase tickets in advance via a secure website, allowing ticket holders to speed through the admissions process. Daily and weekly admissions are available, as is the ability to join EAA and immediately receive the best possible admission prices available only to EAA members. Discounts are available to those who pre-purchase AirVenture tickets online before June 15, 2012, including $2 on daily adult admissions and $5 on weekly adult admissions.

New for 2012, EAA member spouse and guest admissions have been streamlined into the adult EAA member rates. In addition, all EAA member spouse tickets will include a $15 merchandise credit for a weekly ticket and $2 merchandise credit for a daily ticket. This credit can be used at any official EAA merchandise location during AirVenture 2012.

“With its variety of attractions and entertainment options, EAA AirVenture remains one of the great family-friendly destinations at an affordable price,” said Rick Larsen, EAA vice president of marketing. “We continue to look for ways to streamline and improve the purchasing and admission process, enabling attendees to get the most out of AirVenture every year.”

Advance purchase camping for Camp Scholler, which opens on June 22, 2012, provides the convenience of express registration at the campground entrance, including specially designated lines on peak arrival dates.

Additionally, attendees are able to pre-purchase flights on EAA’s historic B-17 Aluminum Overcast or a vintage Ford Tri-Motor, two of AirVenture’s more popular attractions. Passengers can avoid the lines and get more out of their AirVenture experience before embarking on a mission flight back in time on a World War II bomber or taking a ride in the first mass-produced airliner.

To access the advance ticketing area, visit www.airventure.org and click on the “Buy Tickets” link. Simply make your selections, pay by credit card, and print your tickets at home. Full instructions and answers to frequently asked questions are available at that site. Advance purchase AirVenture tickets are scanned and exchanged for an appropriate wristband at all AirVenture gates in a quick and easy process.

Advance purchase EAA AirVenture tickets also make great Christmas and holiday gifts, and allow recipients to enjoy many months of anticipation prior to their own Oshkosh experience. The advance purchase option is also a unique gift idea for aviation enthusiasts. While buying admission tickets and camping, online purchasers can also select from limited edition AirVenture merchandise.

About EAA AirVenture Oshkosh

EAA AirVenture Oshkosh is “The World’s Greatest Aviation Celebration” and EAA’s yearly membership convention. Additional EAA AirVenture information, including advance ticket and camping purchase, is available online at www.airventure.org. EAA members receive lowest prices on admission rates. For more information on EAA and its programs, call 1-800-JOIN-EAA (1-800-564-6322) or visit www.eaa.org. Immediate news is available at www.twitter.com/EAAupdate.

Released by NBAA on December 2, 2011

Contacts:
Dan Hubbard, NBAA (202) 783-9360, dhubbard@nbaa.org
Benet Wilson, AOPA (301) 695-2159, benet.wilson@aopa.org
Dick Knapinski, EAA (920) 426-6523, dknapinski@eaa.org

Washington, DC, December 2, 2011 – Three leading general aviation organizations today welcomed plans announced by government officials for lifting restrictions on a program that allows aircraft owners and operators to "opt out" from having their flight information broadcast over the internet.

The Federal Aviation Administration (FAA) today announced that, effective immediately, those wanting to enroll aircraft in the Block Aircraft Registration Request (BARR) program would no longer need to provide a "valid security concern" in order to be included in the program. Representatives with the National Business Aviation Association (NBAA), the Aircraft Owners and Pilots Association (AOPA) and the Experimental Aircraft Association (EAA) welcomed the announcement.

The FAA moved to impose the restriction on August 2. Today's announcement notes that the agency’s decision to lift the requirement has been made following the passage of a congressional appropriations bill (H.R. 2112), which includes language prohibiting the agency from imposing the "valid security concern" requirement, or any other requirement, as a prerequisite to participation in the BARR program.

"NBAA and its members thank the leaders in congress for taking action to address our industry’s long-standing concern that curtailment of the BARR program represents an invasion of privacy, a competitive threat to businesses, and a potential security risk," said NBAA President and CEO Ed Bolen. "We commend the Administration for working with our industry to implement this change."

"On behalf of our AOPA members, we thank those in congress and the Administration who recognize the importance of assuring a measure of privacy protection to individuals operating their own aircraft," said AOPA President and CEO Craig Fuller. "We are pleased to have the BARR program back in operation."

"We appreciate the efforts of those in congress who acted to preserve the privacy rights of aviators within the BARR program," said EAA President and CEO Rod Hightower. "We also applaud the efforts of those within the aviation community who worked together on this important issue."

Earlier this year, NBAA and AOPA filed a court challenge to the government's curtailment of the program, and the EAA filed a friend of the court brief supporting the suit. It now appears, following a hearing this morning in which a government attorney conceded that the FAA would no longer defend its August policy, that the case will conclude to the satisfaction of the three associations.

"Our associations will keep members advised as we learn further details of these developments," Bolen said. "In the meantime, we want to thank those in the industry who have supported our efforts."

# # #

Founded in 1947 and based in Washington, DC, the National Business Aviation Association (NBAA) is the leading organization for companies that rely on general aviation aircraft to help make their businesses more efficient, productive and successful. The Association represents more than 8,000 companies and provides more than 100 products and services to the business aviation community, including the NBAA Annual Meeting & Convention, the world's largest civil aviation trade show. Learn more about NBAA at www.nbaa.org.