In a Direct Final Rule published on March 22, 2012, the FAA disclosed its intent to remove the FAR 67.401(j) requirement that currently requires an airman granted a Special Issuance Medical Certificate to have his or her corresponding letter of Authorization in the airman's physical possession or readily accessible on the aircraft while exercising pilot privileges. (A special issuance is comprised of both a medical certificate and a letter of authorization that specifies any corresponding requirements or limitations associated with the medical certificate).
The FAA originally imposed this requirement in 2008 to respond to a 2007 International Civil Aviation Organization (ICAO) adverse audit finding regarding endorsement of FAA certificates. At that time, the FAA was concerned "that traditional enumeration placed on U.S. medical certificates under the FAA's special-issuance medical certification process might not be detailed enough for affected U.S. pilots during a ramp check in a foreign country, for example." The FAA believed that it was in the airman's best interest to have the letter of Authorization readily available.
However, after imposing the rule, the FAA received many complaints from affected airmen that the full force of the requirement was overly burdensome and invasive. Additionally, during the three years that the rule has been in effect, "[t]he FAA is not aware of any individuals affected by the standard who have had to produce their letter of Authorization for any civil aviation authorities."
As a result, the FAA determined that the regulation was one that could be removed. However, the Final Rule cautions that "[w]hile this action removes the burden for affected individuals to carry their medical letter of Authorization, long-standing requirements under FAA operational standards requiring individuals to carry FAA certificates while exercising pilot privileges remain unchanged." Thus, airmen will still need to carry their airmen and medical certificates with them while exercising their pilot privileges.
The FAA is accepting comments to the Final Rule on or before May 21, 2012. If it receives adverse comments, it will withdraw the Final Rule. Otherwise, the Final Rule will be effective July 20, 2012.
It's nice to see the FAA actually doing something to make things easier for airmen. Although the Final Rule won't affect a wide range of airmen, it certainly represents a move by the FAA in the right direction. And under the circumstances, I wouldn't expect to see any adverse comments to the Final Rule. But I will keep my fingers crossed anyway.
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.
As you may know, the Obama administration's latest budget proposes a new $100 per flight user fee for the privilege of using air traffic control services. The operators flying in controlled airspace would be required to pay the fee to the FAA. However, certain operations would be exempt from the fee including military aircraft, public aircraft, recreational piston aircraft, air ambulances, aircraft operating outside of controlled airspace, and Canada-to-Canada flights.
However, what has been missing from the discussion of the proposed user fee are a whole variety of practical, and legal, questions that remain unanswered:
The FAA as collector? If the FAA collects the fees, will this require formation of an additional level of bureaucracy to deal with collection and enforcement? Alternatively, would the FAA's regional counsel's offices be tasked with collection of unpaid fees? If so, how would that impact their current civil penalty and certificate action enforcement caseload? Or perhaps the FAA would handle collections out of its chief counsel's office.
In any event, more bureaucracy is very rarely a good thing. As an example, just look at the creation and unprecedented growth of the Transportation Safety Administration bureaucracy. And how would that additional bureaucracy be funded? Seems like a "catch-22" waiting to happen.
How will the user fee be assessed? Will the fee be assessed against the pilot, against the aircraft or, perhaps, against the aircraft owner? If the fee is assessed against the aircraft owner, what if the aircraft owner didn't authorize the activity for which the fee was charged? Would assessment of a fee against an aircraft owner under these circumstances violate due process?
How will the user fees be collected? Will the fees be charged at the point of sale (e.g. when you obtain file a flight plan or request a clearance) or will an account be established upon which an invoice or bill will later be sent requesting payment? If the former, would ATC demand a credit card number from a pilot prior to delivering a clearance or accepting a flight plan? If the latter, will the account be for the pilot, the aircraft, the aircraft owner or all of the above?
What happens if a user disputes a fee? For example, what if the fees are assessed against the wrong party or the amount assessed is incorrect? Will the innocent/aggrieved party have the opportunity/ability to contest or object to imposition of the fee? Who will decide the dispute? Will the dispute resolution process be fair and provide due process? Will the user have the right to appeal?
What happens if they are not paid? Will the government aggressively collect unpaid fees? Could unpaid fees become liens against aircraft or, worse yet, the equivalent of tax liens against the pilot or aircraft owner? If the unpaid fees are assessed against a certificate holder (e.g. pilot or air carrier) could the certificate holder's certificate(s) be at risk for failure to pay?
As you can see, aside from the political arguments as to whether user fees are an appropriate funding source for the FAA, the logistics of implementing a user fee system present equally formidable challenges that have yet to be addressed. Rather than simply looking at the potential revenue that user fees may generate, the administration will also need to offset that revenue with the costs of implementing and managing the necessary collection and enforcement mechanisms.
Additionally, the FAA would likely need to promulgate rules to address, and answer, all of these questions, and more. This would take time and cost more money. At the end of the day, an honest analysis will likely reveal that aviation user fees are simply not worth it.
Globalair.com has learned that the FAA is planning on charging for NOS chart downloads and has joined the petition to oppose this new infringement on the aviation industry. "IMC Club International Inc. President Radek R. Wyrzykowski was the first to sign the petition. In a press release on November 15th Mr. Radek comments, "During these tough financial times, where student pilot enrollments are already drastically reduced, one has to ask the simple question - How many flight instructors, students and pilots will have extra funds to cover additional expenses? Pilot safety is at risk. Forcing the General Aviation community, the very backbone of aviation safety, to incur additional expenses will surely lead to less proficiency, poorly educated pilots and will drastically compromise the safety of aviation. IMC Club International Inc. strongly opposes charging fees to companies for government airport and approach data downloads while no longer allowing individuals access to them without incurring substantial fees.”
“IMC Club International Inc. strongly opposes the FAA's announcement that it will begin charging for NOS chart downloads that were previously free. The new policy will start beginning April 5, 2012. This means charging fees to companies for downloads and no longer allowing individuals to access them at all. As of April 5, only those with distribution contracts with Aeronav will be able to download the data. This action will put a severe financial burden on flight instructors, pilots and students. It will affect small aviation safety material distribution companies like ForeFlight. Only large aviation corporations will be able to offset these expenses. This policy will have serious and wide ranging implications for the general aviation economy as it will restrict access to basic safety and proficiency materials.
Besides its immediate impact on aviation safety, this FAA action will set a sad and dangerous precedent for the future of aviation in the United States. It will open the door to imposing future additional charges such as weather briefings, calls to ATC while enroute, and formerly free usage of the ATC system.
An online petition has been created at “We the People” to gather support against the new Federal Aviation Administration’s policy. If the petition receives 25,000 "signatures" by December 14, White House staff will review it, ensure that it’s sent to the appropriate policy experts, and issue an official response.
For more information and to view and sign this petition: https://wh.gov/jCZ
Globalair.com would like to urge all persons involved with the aviation industry to seriously consider signing the petition as it effects each and everyone of us. This is another clear example of our government not thoroughly investigating the entire picture and how it effects more than a few pilots as clearly stated in Mr. Wyrzykowski comments.
This was one of the questions addressed in an October 3, 2011 Legal Interpretation issued by the FAA's Office of Chief Counsel. The individual requesting the interpretation posed the questions in the context of a proposed trip to a wedding in which the pilot would receive a pro-rata share operating expense reimbursement from additional passengers pursuant to FAR 61.113(c). The questions presented were:
Whether the pilot may advertise, on Facebook, the specific time and date that he was traveling in order to carry two additional passengers with him in exchange for a pro-rata reimbursement of the operating expenses;
If he receives a response to his Facebook post from two friends that expressed an interest in traveling with him in order to attend a baseball game whether he and his passengers share a "common purpose"?
Whether he may post the same information on a fixed based operator's (FBO) bulletin board instead of on Facebook; and
Whether he could receive the pro-rata expenses through Paypal since Paypal extracts a 3% commission from any fees paid through their service.
The Interpretation initially noted that FAR 6l.113(c) "allows a private pilot to receive a pro-rata reimbursement from his passengers for fuel, oil, airport expenditures, or rental fees, so long as the pilot and his passengers share a bona fide common purpose for conducting the flight." It went on to discuss "common carriage," which is not allowed without a FAR Part 119 commercial operating certificate. If an operator is "holding out" to the public or a segment of the public, that "is the 'crucial determination' in deciding if one has engaged in common carriage or not." According to the Interpretation, holding out is accomplished through any "'means which communicates to the public that a transportation service is indiscriminately available' to the members of that segment of the public it is designed to attract." This can be done through signs, advertising or even where an operator has a reputation to serve all.
With respect to advertising the specific time and date of his trip on Facebook to his "friends/family/acquaintances," the Interpretation stated that would be acceptable as a private pilot, since he would not be holding out to "the general public." However, since the pilot didn't provide any additional details about the nature of the Facebook post or how large his Facebook audience was, the FAA cautioned that Facebook advertising could still be construed as holding out. For example, if the pilot advertised to a class such as all Facebook users, that could still be considered holding out if the advertising was expressing a willingness to provide transportation for all within that class.
Regarding the "common purpose," the Interpretation noted that "[t]he existence of a bona fide common purpose is determined on a case-by-case basis." It then concluded that based on the facts presented by the pilot, it appeared to be a bona fide common purpose, since the destination was dictated by the pilot, not the passengers, and he and his passengers both had personal business to conduct at the destination. Thus, the purpose of the flight was not just to transport the pilot's passengers to the destination.
Finally, the Interpretation cautioned that putting the Facebook post on the bulletin board at an FBO could be considered holding out. It also noted that "payment through Paypal would suggest that there is an interest in carrying passengers with whom there is no previous personal relationship and that the offer to accept passengers is being made to the general public," which would suggest that the pilot was "holding out." However, in specific response to the pilot's question, stated that whether or not the passengers reimburse the pilot through an online payment system such as Paypal has no bearing on the legality of the payment so long as the pilot does not pay less than his pro-rata share of expenses.
This Interpretation provides some fact specific insight into determining whether a private pilot may share expenses under FAR 61.113(c). For additional discussion on the topic, please read my article Shared Expenses and the Private Pilot.