All posts tagged 'FAR'

Part 91 vs Part 135: What Are the Biggest Differences?

Let's talk Part 91 vs Part 135. These are two completely different worlds, like day and night.

Part 135 is highly structured and very similar to the 121 airline world, versus part 91 where things aren't as structured but you have less privileges. Let's dig into some of the biggest differences.

1) Ownership Operations

As an aircraft owner you absolutely cannot charter out your plane to people for the purpose of making money. If you buy a plane and want to make money off of this to use as an investment, then it should be used for the purpose of flight instruction. Can your friend fly it on a trip and pay you all expenses plus $600 so you have something to pocket? NO.

But what if they pay you in cash? I include this because as a CFI I get lots of questions about loopholes to regs. Paying cash isn't a loophole, it's still illegal. Whenever you encounter situations like this and think it may or may not be illegal, think of it like this: what if the aircraft crashes or has an incident and the FAA begins asking questions? will you be able to confidently explain everything about the flight to them and not have anything to worry about? If the answer is no, don't agree to the flight until you consult someone highly knowledgable in the regs and are 100% confident the situation you are faced with is legal.

-Remember that you can submit questions about regulations to the FAA and they will write back. It will take weeks to months but is a highly resourceful tool.

If you're looking into try to offset costs/generate revenue from your aircraft look into putting it on a 135 certificate! There are several different types of certifices you can apply for through this FAA 135 General Information Link. Also read Starting a 135 Operation by the NBAA to help guide you through this too. 

2) Flight Operations

This list goes on and on for this subpart in the FAR/AIM but I'll highlight a few. 

-Oxygen Requirements

In Part 91.211 for an unpressurized aircraft, like a Piper Saratoga for example, pilots are not required to wear oxygen until passing 12,500 feet MSL. From 12,500 ft - 14,000 ft if there longer than 30 minutes than a mask is required, or any altitude past 14,000 a mask must be worn at all times. 

With 14 CFR 135.89 the 30 minute duration period is brought down to 10,000 ft - 12,000 ft and now must be worn continuously past 12,000 ft rather than 14,000 ft. Therefore, the regulations are more strict in Part 135. But remember that 135 is given more priviliges including generating revenue, so it makes sense!

The requirements for a pressurized aircraft are more strict in 135 versus 91 as well. 

3) IFR Takeoff, Approach & Landing Minimums

As an instrument pilot, these are VERY important to know. Your minimums are going to come from 14 CFR 91.175 and 14 CFR 135.225. These are linked because there is a lot to these regulations to know that need to be read from the primary source itself. 

-What are standard takeoff minimums? The quick and easy answer for 135/121 operations is 1 statute mile visibility for one or two engines, or 1/2 mile for three or more engines. 

-Are there takeoff minimums for part 91? A quick answer again for this....no. You can legally takeoff zero/zero unless you've been assigned and accepted a SID. But a smart pilot won't do this, so read further into your regs.

Note that when it comes to minimums, visibility is always prevailing. When I break out of a low ceiling, can I see a deer crossing the runway? Yes. Because I can see now! What if visibility is poor? Maybe not. You don't just "break out" of visibility like you break out of clouds. 

Approach minimums: You may not begin an instrument approach unless the airport has an approved weather facility AND the latest weather is above minimums. A loophole to this is eligible on-demand can begin the approach without an approved weather facility if the alternate has one and have an approved altimeter setting. If you are shooting the approach and weather deteorates below minimums, you can only continue under certain circumstances such as if you're beyond the final approach fix. Otherwise, you have to go around. 

These 3 bullet points are just 3 key differences between the Part 91 and Part 135 world. There's various other regulations that should be thoroughly looked over as well if you're transitioning from one operation to the other in order to not only stay legal but remain proficient.

Questions or comments? Confused by any of the regs in either of these parts that you'd like broken down? Write to us below! We always enjoy feedback from readers. 

Cheers to 2021 and Happy New Year from everyone at Globalair.com!

Administrative Actions: The FAA's "Slap on the Wrist"

In past articles we have talked about FAA legal enforcement actions in which the FAA has suspended or revoked a mechanic's certificate or the certificate of an air carrier or repair station, or has assessed a civil penalty against the certificate holder.  In those situations, the FAA believed the regulatory violations committed by the certificate holders warranted the "pound of flesh" the FAA extracted with suspension or revocation of the offending party's certificate(s) or the assessed civil penalty.

But what happens when the FAA believes that compliance can best be obtained through some other action short of a legal enforcement action?   (Yes, it does happen.)  In those situations, the FAA has the option of addressing the certificate holder's alleged violations with a "slap on the wrist" through an administrative action.

When Does The FAA Use Administrative Action?

The decision of whether to use administrative action is usually made by the FAA inspector investigating the alleged violation, or his or her local office.  An FAA inspector may pursue an administrative action when the following criteria are satisfied:

1.         Where legal enforcement action is not required by law and administrative action would serve as an adequate deterrent to future violations;

2.         The violation does not indicate that the certificate holder lacks qualification to hold a certificate;

3.         The violation was inadvertent and was not the result of intentional conduct;

4.         The violation was not a substantial disregard for safety or security and the circumstances of the violation are not aggravated;

5.         The alleged violator has a constructive, compliance oriented attitude; and

6.         The alleged violation does not indicate a trend of noncompliance with, or a disregard for, the FAA’s regulations

Administrative Actions: The FAA's

By way of example, administrative action has been considered warranted in situations where a mechanic failed to make an appropriate approval for return to service maintenance record entry in an aircraft's logs after maintenance was performed or failed to accurately track airworthiness directive compliance in an aircraft's logs.  However, keep in mind that each situation is different.

And although FAA Order 2150.3B indicates that administrative action shouldn't be taken "solely as a matter of convenience or when evidence to support a finding of a violation is lacking, or in cases that are stale", in many cases I personally believe that is exactly what happens.  Thus, depending upon the facts and the FAA's analysis of the above six criteria, the FAA may not consider administrative action appropriate for all incidences of these examples of violations.

If the FAA determines that legal enforcement action is not necessary in a particular case, 14 C.F.R. § 13.11 provides the FAA with the authority to issue a warning letter or letter of correction.

The Warning Letter

The warning letter will identify the conduct at issue and the regulation(s) that the conduct allegedly violates.  The warning letter will usually state that the FAA expects the alleged violator's future compliance with the regulations.  It may also offer the opportunity for the certificate holder to submit additional information in explanation or mitigation for inclusion in the file, in the event that you hadn't already provided information in response to the letter of investigation which preceded the warning letter.

Although the warning letter is not a formal finding of violation, it stays in the certificate holder's file at the FAA for a period of two years and is then expunged from the file.  In the event of a future investigation or enforcement action prior to being expunged, the FAA will consider the warning letter when it decides how to proceed in that later case.

The Letter of Correction

The letter of correction is similar to a warning letter.  However, in addition to reciting the conduct and regulations that were allegedly violated, the letter of correction also contains an agreement under which the certificate holder agrees to take certain corrective action to address the alleged violation.  The corrective action may require the certificate holder to participate in remedial training or counseling with the FAA inspector, adopt policies or procedures to address deficiencies identified by the FAA, verify compliance with respect to matters that were not at issue in the investigation or take any other actions agreed to by the certificate holder and the FAA.

If the certificate holder fails to complete the agreed upon corrective action within the time period specified in the letter, the FAA could then proceed with legal enforcement action based upon the alleged violations.  Once completed, the letter of correction is included in the certificate holder's file at the FAA and will stay in the file for a period of two years until it is expunged.

As with the warning letter, the letter of correction is not a formal finding of violation.  However, in the event of a future investigation or enforcement action, the FAA will also take the letter of correction into consideration when it decides how to proceed in that later case.

Before agreeing to a letter of correction, it is important that the certificate holder understand the corrective action required and the criteria that will be used for determining whether action has been satisfactorily completed.  This will hopefully prevent a situation in which the certificate holder and the FAA disagree upon whether the certificate holder has completed the corrective action as required.

Conclusion

The slap on the wrist of an administrative action is definitely more acceptable to a certificate holder than having to defend against a certificate or civil penalty action, or having a finding of violation in the certificate holder's record.  Administrative action also makes more sense from an aviation safety perspective.  After all, are certificate holders actually going to be safer after a suspension or assessment of a civil penalty?  Probably not.

Unfortunately, up until recently it seemed like the majority of investigations resulted in the FAA pursuing enforcement action rather than resolving those cases through administrative action.  However, now, with the fiscal restraints imposed by sequester, it seems the FAA's use of administrative actions may increasing.  And that's good news, both for certificate holders and for aviation safety.

 

FAA Relaxes, Slightly, The Prohibition On Company Reimbursement For Part 91 Flights By Certain Officers/Employees



As you may recall, back on July 8, 2010 the FAA published a Proposed Interpretation seeking public comment regarding a proposal to modify the FAA's broad prohibition on pro-rata reimbursement for the cost of owning, operating and maintaining a company aircraft when used for routine personal travel by senior company officials and employees. After receiving comments, and in response to the National Business Aviation Association's ("NBAA") request that the FAA modify its longstanding prohibition, on December 10, 2010 the FAA issued a Modified Interpretation in which it agreed that, under certain circumstances, it would allow "a company to be reimbursed for the personal travel by an individual whose position merits such a high level of interference into his or her travel plans."

What does that mean? Well, for those limited number of employees who are so important to a company that they can be called back to work at any time upon a moment's notice, even during personal travel, then the FAA will consider their travel on the company aircraft as "within the scope of and incidental to the business" of the company operating the aircraft. However, the Modified Interpretation warns that not all personal travel will meet the conditions for reimbursement, such as "when the high-level employee or official may have personal travel plans that are unlikely to be altered or cancelled, even for compelling business reasons." By way of example, and for purposes of guidance, the FAA cites travel for a significant event, such as a wedding or funeral of a close family member, or for necessary or urgent medical treatment, as instances of personal travel that would not likely qualify for reimbursement.

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It is important to note that this interpretation applies to reimbursement under FAR 91.501(b)5 which specifically regulates "large airplanes of U.S. registry, turbojet-powered multi-engine civil airplanes of U.S. registry, and fractional ownership program aircraft of U.S. registry that are operating under FAR 91 Subpart K in operations not involving common carriage." However, companies operating other aircraft may be able to take advantage of the regulation under the NBAA's Exemption 7897, as amended. Exemption 7897, or the "Small Aircraft Exemption" as it is called by NBAA, allows NBAA Members to operate small civil airplanes and helicopters of U.S. registry under the operating rules of FARs 91.503 through 91.535.

In order to take advantage of this interpretation, the company will need to make a written determination that the flight in question was of a routine personal nature. The FAA also advises that the company should maintain a list of individuals whose position with the company require him or her to routinely change travel plans within a short time period. The company must then provide that list to the FAA upon request.

With the proper documentation, companies will be able to provide their select few executives with personal travel on the company aircraft and receive reimbursement while still operating under Part 91. Not a big move by the FAA, but certainly a move in the right direction.

 

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FAA Proposes More Restrictive Interpretation Of Part 135 Flight And Rest Time Regulations

In a Notice of Proposed Interpretation published on December 23, 2010, the FAA is proposing to interpret the application of FAR 135.263 and the rest requirements of FAR 135.267(d) to a situation where an operator plans a flight that is anticipated to be completed within a 13.5-hour duty day but, unanticipated delays (e.g. late passengers, late cargo etc.) occur before the last leg of the flight, and these delays would extend the flight beyond a 14-hour duty day if the last leg is completed.

The FAA's current interpretation of these regulations, based upon legal interpretations issued in the 1990's, permits flight crewmembers to take off on flights that were scheduled to be completed within a 14-hour duty period even though circumstances beyond the crewmembers' control extended the actual duty time beyond the permissible 14-hour period. However, this interpretation is inconsistent with its current interpretation of the near identical language in
FAR 121.471(g) which would not permit the crewmembers to take off on the last leg of the flight.

The FAA's interpretation of the language of
FAR 121.471(g), which was upheld by the U.S. Court of Appeals for the DC Circuit, created an exception to pilot flight time limitations, but did not provide an exception for pilot rest requirements. In the Court of Appeals decision, the Court also stated that "[t]he substance of the rules in FAR Parts 121 and 135 is essentially the same and the rules are likewise interpreted." The FAA's interpretations of FAR 121.471(g) along with the Court of Appeals case have been known as the "Whitlow Letter line of interpretations."

According to the proposed interpretation, "[t]he FAA has determined that it is illogical that the nearly-identical regulatory language in sections 121.471(g) and 135.263(d) is interpreted in two different ways" and "the Whitlow Letter line of interpretations best reflects the FAA's current understanding of the pertinent regulatory language." As a result, under the proposed interpretation, if a flight crewmember knows at the time of departure on the last leg of the flight that he or she has not had the required rest,
FAR 135.267(d) would prohibit him or her from departing on the last leg of the flight.

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Comments to the proposed interpretation are due on or before January 24, 2011. If you have any questions regarding the proposed interpretation or would like further information, you may contact Alex Zektser, Attorney, Regulations Division, Office of Chief Counsel, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267- 3073; e-mail: [email protected].

This proposed interpretation could have a potentially significant impact on the operations of Part 135 on-demand air carriers. I encourage all Part 135 operators and pilots who fly for those operators to submit comments to the proposed interpretation.  Your comments are most welcome as we all learn through open dialogue.

Why You Need To Read The Questions On An FAA Medical Application Before Answering

An airman recently found out the hard way that failure to read the questions on an FAA medical application was not a defense to a charge of intentional falsification under FAR 67.403(a)1. In Administrator v. Cooper, the FAA alleged that the airman checked "No" in response to question 18(v) on the medical application which asks about convictions and/or administrative actions relating to the applicant's driver's license. However, the airman's driver's license had, in fact, been suspended in connection with an alcohol related motor vehicle action.

As a result, the FAA issued an emergency order revoking the airman's airline transport pilot (ATP), certified flight instructor (CFI), and second-class medical certificates based upon alleged violations of FARs 67.403(a)(1) (prohibiting an airman from making fraudulent or intentionally false statements on an application for a medical certificate), 67.403(c)(1) (providing that the making of an incorrect statement in support of an application for a medical certificate may serve as a basis for suspending or revoking a medical certificate) and 61.15(e) (requiring an airman to provide a written report of each motor vehicle action to the FAA, Civil Aviation Security Division within 60 days).

The airman appealed and presented a number of arguments at the hearing. Although the airman admitted that he failed to answer question 18v correctly, he argued that he did not intentionally falsify the application because he had simply failed to read the question or the instructions that accompanied the medical application before answering. Rather than reading the questions, the airman stated that he had just copied his answers from a previous application. However, he also admitted that, if he had read question 18(v), he would have answered "Yes."

The administrative law judge ("ALJ") determined that the airman's incorrect answer was "inadvertent," and that the FAA had not shown that the airman had an intent to falsify the application. As a result, the ALJ dismissed the FAR 67.403(a)1 charge. However, because the airman did answer question 18(v) incorrectly, the ALJ concluded that revocation of the airman's medical certificate was appropriate for violation of FAR 67.403(c)1. The FAA appealed the ALJ's decision to the full NTSB, arguing that the ALJ erred in finding that the airman had not intentionally falsified the application simply because he did not read it.

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The Board initially observed that an airman must read the questions on a medical application carefully before answering them. It went on to state that an airman who does not read the questions on a medical certificate application "should be determined to have intended that whatever answer he gave be utilized in the review of his qualifications." Finally, the Board concluded that "failure to read a question before answering it renders the entire medical certificate application process pointless, and does not provide a defense to a charge of [FAR] 67.403(a)(1)." As a result, the Board granted the FAA's appeal and affirmed its revocation of all of the airman's certificates.

This case is different from other recent cases that have held that an airman's confusion about a question may present a defense to an intentional falsification charge. Here the airman admitted to not reading the question, rather than not understanding the question. As a result, the defense of "failing to read the question" is no longer a legitimate defense. However, the defense of "confusion" or "misunderstanding" of a question remains a viable defense which an ALJ may or may not find credible, although it is still not a particularly strong defense.

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