1. October 2004 00:00
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In a recent National Transportation Safety Board decision, the Board reaffirmed the concept that ATC's failure to notify a pilot of an ATC deviation may entitle the pilot to a waiver of sanction. This case doesn't remove a finding that a pilot has violated a Federal Aviation Regulation (FAR), but it does extend the waiver of sanction in some circumstances where the pilot might not otherwise know that filing an Aviation Safety Reporting System (ASRS) report may be prudent.
In Administrator v. Pate and Yoder, respondents Pate and Yoder were operating a Boeing 737-522. Pate was pilot in command and Yoder was second in command. As they were approaching Cedar Rapids, Iowa for landing, the pilots were instructed to descend to an altitude of 2,500 feet and to maintain a heading of 50 degrees. However, shortly after receiving that clearance, they turned their aircraft to a heading of 250 degrees and climbed to an altitude of 3,000 feet.
When the pilots realized that the aircraft had climbed above its assigned altitude, they immediately began a descent back to 2,500. However, the combination of improper altitude and incorrect heading resulted in a loss of standard separation when the aircraft came within 500 feet vertically and two and one-half miles laterally of another airliner. ATC made no comment regarding the deviations and the pilots landed without further incident.
After the flight, the FAA issued Notices of Proposed Certificate action against Pate and Yoder. The FAA alleged that the pilots violated FAR 91.123 which requires that "Except in an emergency, no person may operate an aircraft contrary to an ATC instruction in an area in which air traffic control is exercised. The FAA also alleged violation of FAR 91.13 which provides that "No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another. The FAA wanted to suspend Pate's and Yoder's airline transport pilot certificates for periods of 15 and 7 days respectively.
The pilots admitted the allegations contained in the FAA's Orders of Suspension, but asserted that they were entitled to waiver of sanction. They argued that ATC's failure to provide a deviation notice precluded them from taking advantage of the sanction waiver benefits of filing an ASRS report. The pilots' arguments relied upon paragraph 2-1-26 ("Pilot Deviation Notification) of FAA Order No. 7110.65M ("Air Traffic Control) which states: "When it appears that the actions of a pilot constitute a pilot deviation, notify the pilot, workload permitting. Phraseology – (Identification) POSSIBLE PILOT DEVIATION ADVISE YOU CONTACT (facility) AT (telephone number).(The current version of Order 7110.65P is available here).
They based this defense on a 1987 NTSB case entitled Administrator v. Brasher. In Brasher, the ATC deviation notification provision at issue was substantially similar to the language cited by Pate and Yoder. In that case, the Board held that "the pilot deviation notification provisions ‘prescrib[e] a duty, . . . imposed on FAA employees and instituted, at least in part, for the benefit of pilots'. The Board also noted that the FAA had specifically told the pilot community that the deviation notification policy was intended, in part, to allow pilots the opportunity to prepare a response to claims of ATC clearance deviations.
Although the Board recognized that Brasher and other cases resolving similar issues of ATC notice hold "that a failure by ATC to provide a required notice of a deviation generally requires that sanction be waived for the associated FAR violation, it requested supplemental information from the FAA and the pilots regarding the status of the notice of deviation policy cited in Brasher and whether it remained a valid FAA policy. The FAA supplied information establishing that the ATC notice of deviation language cited in Brasher was substantively the same as the language in FAA Order No. 7110.65M and that the policy behind such notifications remained the same.
Based upon Brasher and other similar cases, as well as the supplemental information provided by the FAA, the Board held that Pate and Yoder were entitled to a waiver of sanction because they did not receive the ATC notification of deviation consistent with the provisions of paragraph 2-1-26 of the ATC manual. However, it is important to note that the Board's decision only waived the sanction against the two pilots (e.g. the 15 and 7 day suspensions). The Brasher doctrine and the ASRS program do not grant pilots immunity. They merely eliminate the potential sanction associated with FAR violations. Thus, the violations of FAR 91.123 and FAR 91.13 admitted by Pate and Yoder remained.
As always, my recommendation is to file an ASRS report any time you have concerns regarding your possible violation of FAR's, including deviation from a clearance. Subject to the limitations of the ASRS program (e.g. unintentional conduct, no prior violations etc.), you can potentially limit any sanction if the FAA successfully proves that you deviated from a clearance. Fortunately, the Board's decision in this case reaffirms your opportunity to obtain waiver of sanction if you deviate from a clearance and you do not receive a notice of deviation from ATC.
As always, fly safe and fly smart.
1. October 2004 00:00
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Instrument Proficiency Checks Under The Revised Instrument Practical Test Standards
In April, 2004, the FAA updated and revised the Practical Test Standards ("PTS") for the Instrument Rating. The new standards went into effect October 1, 2004. Of particular interest to instrument flight instructors ("CFII's") and pilots holding instrument ratings is a substantial change in the requirements for administering an Instrument Proficiency Check ("IPC").
Prior to October 1, 2004, a CFII had discretion regarding what PTS tasks he or she could require for an instrument rated pilot to demonstrate instrument proficiency. That discretion allowed a CFII to be flexible in order to accommodate/address a pilot's strengths/weaknesses, as well as the pilot's aircraft, instrumentation and intended missions. That is, the CFII was allowed to decide what tasks the pilot needed to accomplish in order to show the CFII that the pilot could competently operate an aircraft solely with reference to the instruments.
Although this discretion presented the opportunity for a CFII to conduct an IPC with minimal demonstration of ability by the pilot, most CFII's required pilots to demonstrate sufficient skills and competence to show that they could safely fly in instrument meteorological conditions ("IMC"). After all, no responsible CFII wanted to be the last IPC sign-off in a pilot's logbook if the pilot was later in an accident or incident: Too many questions to answer and potential liability for the CFII.
However, the revised PTS no longer give the CFII discretion in how an IPC is to be conducted or the tasks to be performed. The current PTS now require completion of specific tasks including holds, unusual attitudes, intercepting nav-aids and dme-arcs, precision, non-precision and circling approaches, partial- panel and review of instruments and aircraft equipment.
Unfortunately, the removal of the CFII's discretion seems to convert what used to be a learning experience tailored to a pilot and his or her needs into what is more closely akin to an actual check-ride. Under the prior PTS, a student and instructor could discuss and determine the appropriate and/or necessary tasks to ensure that the pilot could demonstrate the necessary competency to pass an IPC. This allowed a pilot to use the IPC as a learning tool by agreeing with the instructor to review or practice specific tasks on which the pilot may have felt he or she needed additional practice.
Under the revised PTS, all of the designated tasks must now be satisfactorily completed. Although a pilot and instructor can still tailor the IPC to focus on tasks needing additional work, the remainder of the designated tasks will still need to be completed. This will increase the time required for an IPC and may deter pilots from spending the time and money for additional practice of specific tasks.
Another concern is the requirement that an IPC candidate must now perform a circling approach. Unfortunately, this eliminates the opportunity for an IPC candidate to fully complete an IPC using a computer-based trainer such as an Advanced AD. Although an Advanced AD will still qualify for completion of a majority of the IPC requirements, if it does not have a wide, wrap-around display, a circling approach will be impossible and this portion of the IPC will need to either be demonstrated in an aircraft or in a simulator that is equipped for such an approach.
This new requirement also has the potential to increase the cost of an IPC for a pilot. If the pilot does not have access to an appropriate computer based trainer, he or she will need to perform a circling approach in an aircraft.
The revised PTS are here and are the standards for conducting an IPC. Pilots should keep in mind that an IPC sign-off received after October 1, 2004 that does not comply with the revised PTS will not be valid and may leave the pilot operating without instrument currency. Both pilots and their instructors should review the revised PTS to fully understand what tasks are required for an IPC.
As always, fly safe and fly smartt.
1. October 2004 00:00
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Your aircraft could be in the shop for a few weeks, or you could have a short term need for a lot of extra flying. If your aviation operations are already at or near the maximum utilization for your operation, you will need to look at other alternatives. Charter is an excellent "relief valve" for those times when you need extra flying for a brief period.
Charter is also a good alternative if you need a handful of hours for a mission your current aircraft can't handle well. Maybe your domestic US operation needs an international trip. Maybe your global business jet isn't the best aircraft to fly three people into that 3500 foot long runway.
For this discussion, lets assume your needs are short term and amount to under 50 hours a year.
The first step is to figure out what type of aircraft you need. As you already run an aviation operation, you know that depends on the mission – passengers, range, runways, etc. The next step is finding a provider with those aircraft. I'd say the best source for that is the Air Charter Guide. They have the most complete directory of on-demand charter providers. This is a worldwide database. It is available on line or in print. They list Part 135 licensed carriers, their location(s), contact information, aircraft types, and often, base rates. They even note special certifications such as an independent safety audit.
Another source of information for charter aircraft is the charter broker. Some are general in nature while others specialize in specific types of trips; say chartering airliners or aero medical trips. The goal of the broker is to bring together a willing buyer and a willing seller and in the process, make some money. The Air Charter Guide also lists those folks as well.
Some brokers advertise themselves claiming to have "our fleet of over 2,000 jet aircraft" available. Be wary of such a representation. The US Department of Transportation (DoT) is. A recently released white paper, DOCID: fr18oc04-123 provides new guidance regarding air charter brokers.
The DoT's concern is a broker holding themselves out as a direct provider of air transportation without having a lawful certificate from the FAA. From that white paper, "… air charter brokers without appropriate economic authority may not hold out air transportation in their own right or enter as principals into contracts with customers to provide air transportation." So a broker that acts as a highly specialized travel agent selling you a trip on XYZ Air Charter Company is OK with the DoT. One that sells their fleet of 2,000 jet aircraft direct to you may be seeing some increased scrutiny from the FAA and DoT.
What can a broker do that you can't do yourself? It depends. If your in-house aviation department does a lot of charter and has built up a relationship with one or more charter providers, then maybe not much. Brokers can add value to the relationship by shopping for competitive rates, providing contingency planning, and in getting the right equipment.
Still, how do you know who you are dealing with is qualified? Regardless of whether you deal with a local charter company, use the Air Charter Guide and call around, or go through a broker, you still need to educate yourself.
Ask your charter operator, or broker some tough questions. The good ones will have the answers. Here are a few items to consider:
1. Is the aircraft that you are being quoted, on the carrier's certificate? If not, what auditing process is in place to ensure the aircraft being flown meets the highest safety standards? Are they independently audited and inspected by someone like ARG/US or Wyvern?
2. How experienced are the crew members? You and your insurance carrier have specified minimum experience levels for your own operation. What about the charter provider?
3. Do the pilots go through simulator training? How often? Once per year is the minimum, twice is preferred.
4. How is the safety record of your charter carrier? Have they had any accidents on their certificate or any other certificate that they have held? Have they received any safety awards?
5. In the event of an unexpected maintenance delay, will your charter carrier guarantee a similar replacement aircraft and honor the quoted price?
6. How frequently does your charter carrier have their aircraft painted and refurbished? What is the average age of an aircraft on their fleet? Their aircraft should be at least a nice inside and out as what you regularly operate.
7. How much insurance coverage is carried by the charter provider? $50 to $100 million is typical for turbine operators. Does your company require a higher amount?
8. What is the policy on flying into mountainous airports? If you are looking to operate into airports with special procedures, how does your charter company handle that?
If you are dealing with a charter broker, they should have all this information. Verify it. One charter broker claimed that all "their" aircraft were either Wyvern or ARG/US certified. A spokesman for Wyvern said that they were never directly contacted by that broker and thus, can't confirm.
Like anything in business, relationships are important. Whether you are looking for a few hours a month or a longer term relationship, too much is at risk not to do the work up front.
1. October 2004 00:00
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Specifically, the rules and regulations relating to carriage of passengers and goods within the same foreign country are referred to as "cabotage." Cabotage regulations are not uniform or necessarily consistent from one country to another. They usually apply to both commercial and private operators. However, as we will discuss shortly, whether a foreign country considers a corporate aircraft operator to be a commercial or private operator will also vary by country.
Regardless of which country the corporate aircraft operates within, the pilot in command of a corporate aircraft is responsible for knowing and complying with that country's cabotage restrictions. Failure to comply can, and has, resulted in six-digit fines and penalties imposed against the corporate aircraft operator, and corporate aircraft have been impounded by foreign governments until such violations have been resolved to the satisfaction of the governing authority.
Examples Of Cabotage Regulations Applicable To Corporate Aircraft Operators
United States. The United States does not currently have any regulations that prevent private (not for compensation or hire) foreign corporate aircraft from carrying U.S. passengers between points within the U.S. 14 CFR 375.30 provides that "civil aircraft which are not engaged in commercial air operations into, out of, or within the United States may be operated in the United Sates and may discharge, take on, or carry between points in the United States any nonrevenue traffic.
Canada. After clearing customs, Canada allows a corporate aircraft operator to engage in unlimited operations within Canada as long as the U.S. registered aircraft is carrying U.S.-boarded passengers and the aircraft is not operating for "hire or reward. Canada also allows unlimited international operations where passengers are being transported across the border between Canada and any other country. This includes stops within Canada to pick up or drop off passengers who are traveling internationally.
Canadian-boarded passengers may be transported within Canada by a U.S. registered aircraft provided that the transportation is incidental to the intended purpose of the flight. That is, a corporate aircraft operator could fly its U.S. registered corporate aircraft into Canada, pick up Canadian personnel, customers, etc. and fly on to another destination in Canada for a meeting or event. As a long as the sole purpose of flight was not transporting the Canadian passengers, then the carriage of the Canadian passengers would be considered incidental and should not violate the cabotage regulations.
European Union. Cabotage regulations in the European Union are more complex than in Canada. The difficulty results from the European Union's definition of commercial transportation. In the U.S., the U.S. Customs service defines commercial transportation as transportation "for compensation or hire. However, the European Union defines "commercial use as "the use of means of transportation for the transport of persons or of goods for remuneration or in the framework of the economic activity of an enterprise.
Unfortunately, the European Union definition means that a U.S. registered corporate aircraft operating within the European Union for corporate or other business purposes can be considered to be engaging in commercial use or transportation. As a result, if a corporate aircraft flies into a European Union country, picks up a citizen of that country and then travels on to another destination within that country, it is likely that the second flight would be in violation of the European Union cabotage regulations.
The Importation Alternative To Cabotage Compliance
An option for removing the cabotage restraints on international operations is importation of a U.S. registered aircraft into the foreign country (e.g. Canada, a European Union country etc.) in which the corporate aircraft owner wishes to operate. Importation then makes the aircraft an aircraft of the country into which it is imported (e.g. an aircraft of Canada or a European Union aircraft). The aircraft can usually be imported on a temporary or permanent basis and does not usually require that the aircraft be re-registered.
For importation into most countries, the corporate aircraft owner will be required to pay the "Value-Added Tax (VAT) on the value of the aircraft. Two exceptions are the European Union countries of the United Kingdom and Denmark. Both countries have a zero valuation of aircraft weighing over 24,000 pounds and are frequently used to import corporate aircraft into the European Union. Once the aircraft is imported into the foreign country, for purposes of regulation it becomes an aircraft of that country and is no longer subject to the cabotage restrictions.
Locating Cabotage Regulations
If importation is not an option, a corporate aircraft operator will need to research the cabotage restrictions and regulations for the particular country of intended travel. The first place to consult is the Aeronautical Information Publication (AIP) published by the country to which the operator wishes to travel. How do you get the AIP for a particular country? Well, the best place to start is the International Flight Information Manual (IFIM). The IFIM is published by the FAA and has information regarding the civil aviation authority for each country and the respective contact information and addresses to which you can direct your request for the country's AIP.
However, you should be aware that many countries' AIP's may not contain all of the applicable rules and regulations relating to cabotage and its enforcement. Often times a country's customs and/or revenue officials responsible for enforcement are not always on the proverbial same page and may interpret the regulations inconsistently.
Fortunately for corporate aircraft operators, the IFIM contains a section for each country titled "Corporate Aircraft Constraints that includes information prepared by the U.S. Department of State. This section specifically addresses cabotage and similar regulations as they may apply to operation of corporate aircraft within the foreign country.
At the end of the day, the pilot in command is responsible for the operation of the flight in compliance with all applicable regulations. However, in the context of a corporate operation, the corporation is also responsible for the operation of its aircraft. Violations of cabotage regulations can subject both the pilot and the corporation to some nasty consequences.
To avoid these consequences, as a corporate aircraft operator you should find out about the applicable regulations before you fly. Consult the AIP for the country in which you wish to travel. Review the corporate restraints for that country in the IFIM. If you are a member of the National Business Aviation Association (NBAA), review the feedback for the country in the NBAA's International Operators Bulletin or on the NBAA's website. Also, check with your point of entry handler/FBO/flight planning organization. Finally, for final, "official confirmation, contact the applicable governing authority within the country to obtain current regulations and interpretations.
Proper planning and current information are essential for international operations by corporate aircraft. Don't leave home without them.