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FAA Takes a More Sensible Approach to First-Time, Inadvertent TFR Violations

by Greg Reigel 27. August 2014 14:59
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The FAA recently amended its enforcement guidelines for dealing with airmen who violate temporary flight restriction ("TFR") airspace. In the past, when the FAA alleged that an airman violated a TFR, and the incident was a first-time, inadvertent violation by the airman, that airman would receive a Notice of Proposed Certificate Action ("Notice") proposing suspension of his or her airman certificate for 30 days for violation of a variety of regulations. This was the FAA's "shoot from the hip", no questions asked approach. And once the Notice was issued, the FAA conceded very little, if anything, from that 30 day suspension.

Now, however, it appears the FAA may have recognized that this approach wasn't necessarily the best way of dealing with these types of violations. In June of this year, the FAA amended Order 2150.3(b), the FAA's compliance and enforcement program, to change its approach to dealing with first-time, inadvertent TFR violators. According to the FAA, it is modifying its policy to provide more flexibility in dealing with TFR violators with the intent of reducing "the number of violations occurring in security airspace by using remedial training in appropriate circumstances to prevent repeated inadvertent violations." I'm not sure why it took the FAA this long to figure out that remedial training might be a better alternative to a suspension, but better late than never, I guess.

Under the amended guidelines, the FAA will apply the following sanction policy to TFR violations:

  1. A single, first-time, inadvertent violation will result in a 30 day suspension EXCEPT in circumstances involving:

    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.

    3. In situations 1(a) and (b), the FAA will use remedial training, assuming the airman has no prior history of violations. This means the airman would receive a warning letter, remedial training and the airman would not have a finding of violation placed in his or her airman record. (In my opinion, a more appropriate response to this type of situation rather than preventing an airman from staying current and competent by suspending his or her airman certificate, as was the case in the past.)
  2. A new inadvertent violation and a history of 1 prior inadvertent TFR violation will result in a 45 to 90 day suspension of the airman's certificate.

  3. A new inadvertent violation and a history of 2 prior inadvertent TFR violations will result in a 90 to 150 day suspension of the airman's certificate.

  4. A new inadvertent violation and a history of 3 or more inadvertent TFR violations will result in revocation of the airman's certificate.

  5. If the facts and circumstances surrounding the TFR violation call into question the qualifications of the airman, the FAA may also issue the airman a request for re-examination under 49 U.S.C. § 44709 (a "709 Ride").

  6. Intentional TFR violations or "aggravated" violations (which isn't defined or explained in the amended policy) will result in revocation of the airman's certificate.

Unfortunately, informal counseling, whether oral or written, is not a permitted alternative for the FAA to deal with TFR violations. However, at least now the FAA has the option of remedial training to educate, rather than punish, inadvertent violators. Of course, this amended policy begs the question of what constitutes an "inadvertent" violation. Depending upon the FAA's interpretation of "inadvertent", which in the past hasn't always been the most reasonable, the amended policy may be for naught.

But the amended policy definitely appears to be a step in the right direction. Hopefully, this more enlightened approach, and the voice of reason, will prevail in the future. In any event, airmen should continue to check for NOTAMS, understand the scope of any TFR NOTAMS issued for their route of flight, obtain appropriate flight service briefings and updates, and either avoid TFRs or comply with the applicable requirements for operation within the TFR.

Fly smart and stay safe.

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Greg Reigel

Can You Barter For Aircraft Rental And Expenses? FAA Says "Yes"

by Greg Reigel 5. August 2014 16:09
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As you may know, the FAA defines compensation very broadly. Compensation may include not only the exchange of money, but also the exchange of value. With this expansive view of compensation as a backdrop, the FAA was recently asked whether it was permissible to barter services in exchange for (1) a private pilot's pro-rata share of operating expenses under 14 C.F.R. § 61.113(c) and (2) rental of an aircraft.

In the first scenario presented to the FAA, a private pilot (Pilot A) who is also in the business of aircraft detailing desires to barter aircraft detailing services in exchange for Pilot A's pro-rata share of expenses on common-purpose, recreational flights in an aircraft owned by Pilot B, also a private pilot, and with Pilots A and B as the sole occupants of the aircraft during the flights. The common-purpose for the flights would be the building of pilot time as allowed by applicable regulations.

For purposes of the request, the FAA was asked to assume that the aircraft's type certificate does not require operation by two crewmembers, the flights are operated under 14 C.F.R. Part 91, and during the common-purpose flights one pilot is acting as pilot in command and the other pilot is strictly a passenger and not a required crewmember.

Pilot A would perform aircraft detailing services for Pilot B's aircraft. Pilot A and B would determine the fair market value of the aircraft detailing service and that amount would applied to Pilot A's pro-rata share of the operating expenses of the flights shared by Pilots A and B.

Based upon this first scenario, the FAA answered the following questions:

Question 1: Does Pilot A's bartering of services in exchange for Pilot A's pro-rata share of the operating expenses of a common-purpose flight with Pilot B comply with 14 C.F.R. 61.113(c)?

Answer: Yes, as long as the amount of the bartered services did not exceed Pilot A's pro-rata share of the expenses, otherwise Pilot B would be in violation of § 61.113(c).

Question 2: May Pilots A and B agree upon the fair market value of the aircraft detailing services to be bartered against Pilot A's pro-rata share of the operating expenses for the common-purpose flight?

Answer: Yes, the two parties to the transaction would need to reach an agreement with respect to the fair market value and, although FAA regulations do not require a written record of the agreement, they could certainly make such a record. (I would certainly recommend that the parties have a written agreement executed at the time of the transaction, rather than trying to later come up with documentation to prove the agreement as to fair market value.)

Question 3: May the fair market value of the aircraft detailing services be applied prospectively to Pilot A's pro-rata share of operating expenses for future/successive common-purpose flights with Pilot B?

Answer: Yes.

Question 4: What documentation, if any, would Pilots A and B need to evidence their compliance with 14 C.F.R. § 61.113(c) in this scenario?

Answer: None. The FAA does not require any documentation. (However, having appropriate documentation will definitely help in proving compliance.)

In the second scenario provided to the FAA, a private pilot (Pilot A) who is also in the business of aircraft detailing desires to barter aircraft detailing services in exchange for rental of an aircraft owned by Pilot B for personal flights operated under 14 C.F.R. Part 91 and in which Pilot A would be the sole occupant. The FAA was asked to assume for purposes of the request that the aircraft being rented is a type certificated aircraft with a standard airworthiness certificate and is not subject to the Truth-in-Leasing requirements of 14 C.F.R. § 91.23.

Question 5: Does Pilot A's bartering of services in exchange for rental of Pilot B's aircraft violate any regulations administered by the Federal Aviation Administration?

Answer: It does not violate any FAA regulations.

Question 6: May Pilot A and B agree upon the fair market value of the aircraft detailing services to be bartered against Pilot A's rental of Pilot B's aircraft?

Answer: Yes, as long as the flight is not for compensation or hire.

Question 7: May the fair market value of the bartered aircraft detailing services be applied prospectively to Pilot A's future/successive rental of Pilot B's aircraft?

Answer: Yes, as long as the flight is not for compensation or hire.

Question 8: What documentation, if any, would Pilots A and B need to evidence the barter arrangement under this scenario in order to comply with any applicable regulations?

Answer: FAA regulations do not require documentation.

Although the FAA's answers were short and sweet, without any in-depth analysis of the regulations' application to the factual scenarios, at least the FAA has provided some guidance regarding the viability of barter transactions in connection with aircraft use, rental and expenses. As with most situations when dealing with the FAA, having a paper trail to document your compliance is a good idea. Thus, if you are going to enter into a barter arrangement, make sure you have something in writing that not only explains the barter transaction but also substantiates the fair market values upon which the barter transaction is based.

Thanks to the FAA's guidance, aircraft owners and pilots now have another option for aircraft use and rental. And that's a good thing.

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Greg Reigel

Unknown Or Inadvertent Ingestion: An Unconvincing Affirmative Defense To A Positive Drug Test Result

by Greg Reigel 1. July 2014 08:15
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If an airman tests positive for drug metabolites on a drug test but he or she didn't take the drugs, what can the airman do? Well, arguing that he or she somehow unknowingly or inadvertently ingested the drugs isn't going to save the day. A recent decision by the National Transportation Safety Board ("NTSB") rejected an airman's "unknowing ingestion" affirmative defense in that very situation.

In Administrator v. Hermance the airman submitted to a random drug test which indicated that the airman tested positive for cocaine metabolites. As in almost every case, the FAA revoked all of the airman's certificates based upon the positive drug test. The airman then appealed the revocation to the NTSB.

Prior to a hearing, the FAA moved for summary judgment arguing that the positive drug test and the airman's admission that the test was positive presented a prima facie case that the airman had violated the applicable drug testing and medical qualification regulations. The ALJ agreed that the FAA had proven its case, but the ALJ ordered a hearing to allow the airman to present evidence regarding his affirmative defenses, one of which was that he had unknowingly ingested the cocaine.

At the hearing before the NTSB administrative law judge ("ALJ"), the airman was adamant that he did not do drugs and had not ingested cocaine. He even paid several visits to his physician who was unable to determine how the cocaine metabolites ended up in the airman's urine. The airman's wife and several other witnesses also testified that the airman did not do drugs.

At the end of the hearing, the ALJ ruled that the airman's claim that he unknowingly ingested the cocaine was not a "reasonable medical explanation" for a positive drug test under DOT regulations. The ALJ determined that neither the airman nor any of his witnesses offered an explanation or reasonable theory for how the airman's tested urine specimen contained cocaine metabolites. In the absence of the necessary proof, the ALJ found the airman failed to satisfy his burden of proving his affirmative defense of unknown ingestion. As a result, the ALF affirmed the FAA's revocation order.

On appeal to the full Board, the airman again argued that he had proven his affirmative defense of unknown ingestion which explained and excused the positive drug test result. The Board initially observed that the airman had the burden of proving not only that unknowing ingestion was a legally justifiable excuse but also that he factually proved that affirmative defense.

The Board then cited 49 C.F.R. § 40.151(d), which specifically and categorically rejects the defense of unknown ingestion:

For example, an employee may tell [medical review officers (MROs)] that someone slipped amphetamines into her drink at a party [or] that she unknowingly ingested a marijuana brownie....MROs are unlikely to be able to verify the facts of such passive or unknowing ingestion stories. Even if true, such stories do not present a legitimate medical explanation. Consequently, [MROs] must not declare a test as negative based on an explanation of this kind.

The Board also observed that its precedent has consistently rejected unknown ingestion as a legitimate medical explanation for a positive drug test result.

However, even though the unknown ingestion affirmative defense was previously rejected, the Board concluded that the ALJ's granting a hearing to the airman regarding the affirmative defense was appropriate because it allowed the airman a full opportunity to offer evidence to support a legitimate medical explanation, if one existed. Unfortunately for the airman, the Board affirmed the ALJ's determination that the airman's evidence did not suffice to establish that he never ingested cocaine or that a legitimate medical explanation existed for the presence of the cocaine metabolites in his urine.

Thus, the affirmative defense of "unknown ingestion" or "inadvertent ingestion" will not, without more, save an airman from a positive drug test result. Fortunately, the airman should have an opportunity to prove some other legitimate medical explanation for the positive result. However, the airman will have the burden of proof; a burden that, unfortunately, is often not easy to meet. But at least it is a chance.

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Greg Reigel

Do You Have To Accept A Clearance If It Will Result In You Violating The Regulations?

by Greg Reigel 31. May 2014 18:08
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This situation was presented to the FAA's Office of Chief Counsel in a request for a legal interpretation. Specifically, an individual requested an interpretation of the phrase "necessary for takeoff or landing" as used in 14 C.F.R. § 135.183(b). Apparently the individual operated single-engine Cessna Caravan aircraft in Part 135 operations between the Bahamas and Fort Lauderdale, Florida, along the FAA's published DEKAL TWO arrival route. When the flight reached the DEKAL fix, 30 miles from shore, air traffic control (ATC) usually instructed the flight to descend to 4,000 feet to separate turboprop traffic from jet traffic.

In response, the Office of Chief Counsel issued a Legal Interpretation which initially observed that Section 135.183 prohibits a single engine aircraft, when carrying passengers, from operating over water unless the aircraft is within power-off gliding distance from land, or when it is necessary for take off or landing. It also noted that to determine whether an altitude is "necessary for takeoff or landing" you have to look at "whether that portion of the flight is necessary to permit the pilot to transition between the surface and the en route or pattern altitude in connection with a takeoff or landing."

Applying the facts it was provided, the FAA explained that descent to 4,000 feet at the DEKAL fix would not be necessary for landing because the altitude was assigned for traffic separation, and the Caravan's performance would not require it to be at the assigned altitude for approach into the destination airport. In response to the individual's concern regarding compliance with 14 C.F.R. § 91.123 (requiring compliance with ATC clearances and instructions), the Interpretation cited Chapter 4-4-1(a) of the Aeronautical Information Manual for the proposition that "an ATC clearance 'is not authorization for a pilot to deviate from any rule, regulation, or minimum altitude.'"

It then concluded that, rather than accepting a clearance that would put the Caravan beyond power-off glide distance from shore, and violate Section 135.183, "the operator would be required to select another route or request a different clearance in order to maintain an altitude that keeps the aircraft within power off glide distance from shore."

This Interpretation is a good reminder that the pilot is ultimately responsible for compliance with the regulations applicable to his or her flight. Yes, you need to comply with ATC instructions to avoid violating Section 91.123. However, if ATC's instructions would result in violation(s) of the regulation(s), the pilot has a duty to reject those instructions. Not an easy decision, I know. Hopefully you won't find yourself in that position.

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Greg Reigel

Aircraft Bailment And The Duties Owed By A Maintenance Facility To An Aircraft Owner

by Greg Reigel 2. May 2014 17:34
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A maintenance facility recently asked me to explain what duties it may owe to an aircraft owner when the owner leaves his or her aircraft with the facility for service, other than the responsibility for performing repair or maintenance services on the aircraft as requested by the aircraft owner. This situation creates what many states refer to as a "bailment" and it does impose certain additional duties upon the maintenance facility.

So, what is a bailment? Well, the bailment relationship is created when:

  1. the aircraft owner (the "bailor") delivers the aircraft to the maintenance facility (the "bailee");
  2. the aircraft owner/bailor does not transfer ownership of the aircraft to the maintenance facility/bailee;
  3. the maintenance facility/bailee accepts the aircraft based upon an agreement with the aircraft owner/bailor that the aircraft will be returned to the aircraft owner/bailor; and
  4. return of the aircraft to the aircraft owner/bailor, the aircraft must be in at least the same condition it was in when delivered to the maintenance facility/bailee.

Once the bailment relationship is created, as a bailee of the aircraft, the maintenance facility has a duty to exercise reasonable care with respect to the aircraft based upon the maintenance facilities acceptance of possession of the aircraft and its subsequent exclusive custody and control over the aircraft. The maintenance facility/bailee must ensure that the aircraft is in at least the same condition as it was when it was delivered to the maintenance facility/bailee.

If the aircraft is damaged while it is in the exclusive custody and control of the maintenance facility/bailee and it is damaged (e.g. the aircraft is lost, stolen, damaged or destroyed), the maintenance facility/bailee will be responsible for the damage unless the damage occurred in spite of the maintenance facility's/bailee's exercise of reasonable care. And, the maintenance facility/bailee will have the burden of proving that it was not at fault and the damage occurred despite its use of reasonable care.

To be clear, the maintenance facility/bailee doesn't become an insurer of the aircraft under the bailment relationship. However, the maintenance facility/bailee must use reasonable care; the type of care a reasonably prudent maintenance facility would exercise with respect to its own aircraft under similar circumstances which, of course, may vary depending upon the time and place or the custom and usage of maintenance facility.

Additionally, if the maintenance facility/bailee fails or refuses to deliver the aircraft to the aircraft owner upon demand, or if it uses or permits others to use the aircraft contrary to the aircraft owner's/bailor’s instructions, then the maintenance facility/bailee could also be liable for conversion. In that situation, the maintenance facility/bailee could be responsible for the value of the aircraft at the time of the conversion plus interest from that time.

However, the duty to return the aircraft is qualified: a maintenance facility/bailee may condition return of the aircraft upon the aircraft owner proving that the owner has title or right to possession of the aircraft, so long as the maintenance facility/bailee then does, in fact, provide an opportunity for the aircraft owner/bailor to present proof of title or right to possession. This rule is intended to protect the maintenance facility/bailee from being placed in the difficult position of risking a suit by the rightful owner of the aircraft for converting the aircraft when the maintenance facility/bailee gives the aircraft to another person who claims to be the owner of the aircraft. If the maintenance facility/bailee does not receive such proof, the maintenance facility/bailee will likely not be liable for conversion.

Unfortunately, this can potentially leave a maintenance facility/bailee in the unenviable position of having to decide to whom it should release the aircraft and to suffer the consequences if its decision turns out to be incorrect. In situations where the maintenance facility/bailee may be presented with multiple bills of sale or documents indicating security interests held by creditors, it may be difficult to figure out which party has the right to delivery and possession of the aircraft.

Another situation that may impact the decision to deliver the aircraft may arise if the maintenance facility/bailee has no been paid for its services. Depending upon the state in which the maintenance facility/bailee is located, it may be necessary for the maintenance facility/bailee to retain possession of the aircraft if it wants to assert a mechanic's or artisan's lien against the aircraft to secure payment of the amount owed for the work it performed. Retaining possession of the aircraft to perfect the lien would excuse the maintenance facility/bailee from complying with the aircraft owner's request for return of the aircraft and, as long as the lien claim was valid, the maintenance facility/bailee would likely not be liable for conversion of the aircraft.

So, what can a maintenance facility do to protect itself from potential liability under a bailment relationship? For starters, the maintenance facility should ensure that it is, in fact, exercising reasonable care with respect to the aircraft in its custody. Maintaining custody and control of the aircraft and taking reasonable precautions to minimize the opportunities for damage to aircraft will go a long way to avoiding claims.

Another option is to include language in the work order or service request signed by the aircraft owner that limits the maintenance facilities liability for negligent damage to an aircraft. This may include exclusion of damages for loss of use or diminution of value and it may cap or limit the total amount of damages for which the maintenance facility could be liable. Other language may be included to require that the aircraft owner carry certain minimum insurance and that the maintenance facility be protected by the owner's insurance.

In the end, when the maintenance facility accepts an aircraft owner's aircraft for service, in most cases a bailment relationship will result. Maintenance facilities should understand the duties and liability to which they may be exposed as a bailee in that relationship. With proper procedures and contractual planning, maintenance facilities can comply with their duties and limit their liability exposure in the bailment relationship.





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