History has taught us that the FAA could almost always be counted on to bring the full weight of the federal government to bear on airmen who deviated from the Federal Aviation Regulations, no matter how minor the infraction. However, a recent Order seems to indicate that the feds are re-thinking their enforcement methodologies. Order 8000.373 states that:
The FAA recognizes that some deviations arise from factors such as flawed procedures, simple mistakes, lack of understanding, or diminished skills. The Agency believes that deviations of this nature can most effectively be corrected through root cause analysis and training, education or other appropriate improvements to procedures or training programs for regulated entities, which are documented and verified to ensure effectiveness.
Could it be that the FAA is now relaxing its black-or-white view of pilot deviations and minor FAR infractions? Such would be a welcome change for airmen who previously experienced the FAA’s relentless pursuit of maximum penalties for minor violations. However, not to be completely foreclosed from pitbull-style prosecution, the FAA left itself an avenue of enforcement in the Order, noting that “reluctance or failure in adopting these methods to remediate deviations or instances of repeated deviations might result in enforcement”. The true effect of the Order remains to be seen.
FAA enforcement actions are complex proceedings filled with traps for the unwary pilot. Airmen facing any FAA investigation or enforcement action should immediately seek experienced legal counsel to protect their certificates and rights.
In a recent legal opinion, the FAA concluded that in the modern world of celebrity endorsement, an aircraft manufacturer may seek reimbursement for promotional flights involving a celebrity spokesperson. The manufacturer was seeking to pay celebrities to make appearances on its behalf in order endorse the manufacturer’s products. In seeking a legal opinion, the manufacturer represented to the FAA that providing transportation to paid celebrity endorsers in order to assist with marketing, promoting, and ultimately selling the manufacturer’s products was within the scope of, and incidental to, the business of the company, in accordance with the requirements of FAR 91.501.
However, the FAA cautioned that FAR 91.501 is a limited exception to certification requirements for commercial operators and air carriers, requiring the manufacturer, if challenged, to prove how the transportation of celebrity endorsers is within the scope of, and incidental to, the business of the company. As the FAA points out in this and other legal opinions, there is no hard and fast rule regarding reimbursement for Part 91 operations. Due to the complexity of the regulatory framework involved, manufacturers and operators should seek experienced legal counsel before seeking reimbursement for any Part 91 flight or instituting a program of reimbursement for certain aviation business activities.
In a recent change to its Compliance and Enforcement Program, the FAA has lowered the minimum sanction for inadvertent TFR incursions from a 30-day suspension to remedial training. Pilots who inadvertently enter temporary flight restricted airspace may avail themselves of the lower minimum sanction under the following circumstances:
1. Inadvertent, first-time violations resulting from aircraft intruding one mile or less into the security airspace and then turning and exiting directly when there are no resulting complications for air traffic control or other aircraft; or
2. Inadvertent, first time violations resulting from aircraft briefly (two minutes or less) squawking a 1200 code or failing to squawk an assigned discrete code, in security airspace that requires the aircraft to squawk a discrete code when there are no resulting complications for air traffic control or other aircraft.
All other situations will continue to incur progressive enforcement sanctions starting with a 30-day suspension of all pilot certificates. FAA enforcement actions often involve complex issues, including an airman’s particular facts and the governing law and regulations. When faced with any investigation or legal action, pilots should consult with experienced aviation counsel to determine their rights and obligations before speaking with authorities.
In a recent legal interpretation, the FAA reinforced its position regarding the prohibition on private pilots operating aircraft for compensation or hire, as specified in FAR 61.113(a). The legal opinion examined a scenario where a private pilot would fly at an airshow performance, but would not receive any monetary compensation, would not log flight time toward an additional certificate or rating, and would not receive additional benefits, amenities, or privileges than any other flight or ground crewmember volunteer. The FAA observed that “compensation” includes non-monetary considerations such as fuel, aircraft rental and maintenance costs, flight time towards ratings or certificates, meals, and lodging. In line with its previous legal positions, the FAA concluded that, if such amenities would not be provided but for the private pilot’s operation of an aircraft, they would be considered compensation in violation of the regulation.
As this legal interpretation makes clear, determining whether an amenity is considered “compensation” for purposes of FAR 61.113 is difficult. Pilots should consult with an experienced aviation attorney before engaging in any flight activity that could be considered operation for compensation or hire.
California-based Weco Aeropace Systems Inc. has been charged with using unapproved parts, including paper clips, to repair aircraft. On September 29, 2012, federal prosecutors in the Eastern District of California indicted former executives of Weco on a wide range of fraud counts. The indictment alleges that the defendants allowed technicians to use unapproved parts in repairs, and that Weco Aerospace lacked the requisite equipment to properly install and test major aircraft components, including converters and generators.
Specific allegations include the fabrication of end bell locator pins from a drill bit and a paper clip, and the installation of those fabricated pins into motors which were then installed on aircraft in violation of FAR Part 43. The defendants are also charged with falsifying aircraft records by certifying airworthiness approval tags (FAA Form 8130-3) for components which were not overhauled properly.
This case highlights the importance of ensuring that aircraft repairs and system overhauls are performed by qualified shops using authorized parts. While no aircraft owners were implicated in the indictment, aircraft owners and pilots conducting preventative maintenance pursuant to FAR 43.3(g) (as specified in Part 43, Appendix A) should ensure that they are using only approved parts and procedures. As this case points out, overlooking any required testing procedure is also illegal and problematic. For this reason, those performing preventative maintenance should have their work checked and tested by qualified individuals. Navigating the complex regulations governing aircraft repair and maintenance is fraught with legal pitfalls. Any questions regarding the legality of maintenance, repairs, or airworthiness checks should be referred to an experienced aviation attorney.