Greg Reigel - Page 18 Aviation Articles

FAA Suspends Its Expunction Policy



On February 11, 2011, the FAA published a Policy Statement in which it informs airman that the FAA is suspending its policy of expunging certain records of legal enforcement actions against individuals. Up until recently, the FAA would expunge an airman's personal information from the FAA's enforcement database 5 years after the FAA's action in civil penalty and certain certificate action cases (suspension cases, but not revocation cases). However, the FAA is now suspending that policy in order to ensure compliance with recent amendments to 49 U.S.C. 44703(h),the Pilot Records Improvement Act ("PRIA").

On August 1, 2010, the Airline Safety and Federal Aviation Administration Extension Act of 2010 (the "Act") amended PRIA to now require the FAA to create a pilot records database that, among other things, will include summaries of enforcement actions in which individuals were determined to have violated federal aviation regulations. Under the Act and PRIA, Part 121 and Part 135 air carriers will be required to use this database to perform background checks on pilots before hiring them. Rather than expunging individual information after 5 years as before, under the Act the FAA must now keep these records until it receives notice that the individual is deceased.

It is unclear exactly what impact this change in policy will have. Although PRIA requires the FAA to provide this information to air carriers making hiring decisions, as a practical matter, many, if not most, air carriers' employment applications also ask some variant of the question "have you ever been subject to an enforcement action in which you were found to have violated the Federal Aviation Regulations?" Of course, this amendment may, perhaps, deter airmen from providing a false answer, or, more likely, it will reveal an airman who has, in fact, provided a false answer to that question.

With respect to airmen who are not seeking employment with an air carrier, this amendment will likely have limited effect. It is possible that this could affect an airman involved in an aircraft property or casualty lawsuit in which the enforcement information that previously would have been expunged will now be available for use in the litigation. However, given that properly drafted discovery requests in such a case (e.g. "have you ever....") will ask for that same information, the impact of the Act may have the same effect as it might on air carrier applicants.

In any event, it appears that the amendment is another example of legislation resulting in, perhaps, unintended consequences. Fortunately, the FAA will continue to expunge records of administrative actions and cases with no enforcement action, since the FAA is not required to maintain that information under PRIA. However, for an airman who has had his or her airman certificate suspended or revoked, the phrase "till death do us part" now has a new, and unfortunate, meaning

For more information about expunction under PRIA, you can read the FAA's Pilots Records Expunction Policy Frequently Asked Questions or, for a general discussion of PRIA, you can read my article What Will The FAA Say About You?

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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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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How Long Does An Aircraft Mechanic's Lien Last?

I was recently asked the question "what happens to an aircraft mechanic's lien that isn't foreclosed upon within a certain period of time?" This person had been researching aircraft records at the FAA Registry and found several aircraft with liens that were recorded against the aircraft over 15 years ago. Not surprisingly, this made him wonder how long an aircraft mechanic's lien lasts.

Since aircraft mechanic's liens (also known as "artisan liens") are creatures of state statutes, the applicable state statute will govern the validity of and rights associated with an aircraft mechanic's lien. All but 7 states have aircraft mechanic's lien statutes. Although federal law requires that an aircraft mechanic lien be recorded with the Registry in order to be effective against a third party, state laws dictate the requirements for "perfecting" a mechanic's lien against an aircraft, and, once perfected, for enforcing the lien against the aircraft.

As long as the lien claim or lien statement contains the required information (e.g. name, address, description of work performed, last date of work and amount) and was filed within the time period allowed by the applicable state statute, the FAA Registry will record the lien and the recorded lien will be an encumbrance against the aircraft. At that point, the lien claim is "perfected." Unfortunately, neither the FAA Registry nor any aircraft title company will take a position regarding the validity/enforceability of an aircraft mechanic's lien once that lien is perfected.

Once perfected, the lien claimant will have to file a lawsuit to foreclose upon the lien within the time allowed by the applicable state statute. If that does not happen, the lien claimant will no longer be able to enforce the lien against the aircraft. The lien claimant may still have a claim against the aircraft owner, but the lien claimant would not be able to enforce that claim against the aircraft unless the lien claimant obtained a judgment against the aircraft owner for the amount owed and then recorded that judgment with the FAA Registry.

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Is A U.S. Senator Subject To FAA Enforcement Action For Landing On A Closed Runway?

According to an Article in the Tulsa World, the United States Senator from Oklahoma, James Inhofe, landed his Cessna 340 on a closed runway at the Port Isabel-Cameron County Airport in Texas. At the time, the closed runway was marked with large X's to protect a crew that was working on the runway and a corresponding NOTAM regarding the runway closure had been issued.

The Senator stated that he only saw the X's about 20 seconds before he landed, which, according to him, was too late to change course. However, he was able to land on a part of the runway that was away from the location where the work was being performed. When asked about the NOTAM, the Senator stated "I did not know it because it was not given to me." Later, when the Senator wanted to leave, he used the airport's taxiway to take off.

What is interesting about this incident is that, after apparently notifying the FAA soon after landing and then talking with the FAA several days later, the Senator "expressed assurance that the agency will not take any action against him." I find that hard to believe.

Any other airman would be looking at an enforcement action alleging, at a minimum, violations of FARs 91.103 (requiring a pilot to become familiar with all available information concerning a flight), 91.139(c) (requiring compliance with a NOTAM) and 91.13(a) (careless and reckless) and seeking suspension of the airman's pilot certificate for a period of at least 30-90 days based upon FAA Order 2150.3B Appendix B (the FAA's Sanction Guidance Table).

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