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If You Want To Appeal An FAA Order/Decision, Make Sure It Is Final.

by Greg Reigel 7. May 2018 17:21
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FAA Decisions

It isn't uncommon for someone to be unhappy with an FAA decision. Fortunately, our laws provide a mechanism for appealing or objecting to certain final orders or decisions issued by the FAA. Specifically, 49 U.S.C. § 46110(a) provides that a person with a substantial interest in the FAA's order/decision "may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business." The petition must be filed not later than sixty (60) days after the order is issued unless reasonable grounds exist for filing later than the 60th day.


However, in order for an FAA order to be subject to review by a court, the order must be "final." What does it mean to be "final"? Well, the courts have held that two requirements must be met: (1) the FAA's action must evidence the completion of the agency's decisionmaking process, rather than simply tentative or subject to further consideration; and (2) the FAA's action must determine certain rights or obligations, or result in legal consequences. Courts also consider whether the decision or order is at a stage where judicial review would interfere with or disrupt the FAA's administrative/decisionmaking process.

So, for example, if the FAA issues a letter merely restating a previously adopted interpretation of a regulation, that would not be considered a a "final" decision. However, if the FAA issued a new interpretation or clarified an existing interpretation, in either of those instances it is quite possible that the FAA's action would be considered a "final" decision subject to appeal.

Additionally, if the FAA issues a letter or notice in which it indicates that a party's practices may potentially violate the law, that letter or notice may not necessarily be the completion of the agency's decisionmaking process such that it determines a party's legal rights or obligation
s. For example, neither a letter of investigation nor a notice of proposed certificate action is considered final agency action because the FAA hasn't yet determined whether it will actually pursue enforcement action and issue a final order subject to appeal.


As a result, if you are concerned about something the FAA says or does, before you run to the courthouse to file a petition asking a Judge to tell the FAA it is wrong, make sure the FAA's action is actually a "final" action subject to judicial review. Otherwise, you could end up wasting time and money only to have the Judge tell you that the Court doesn't have the authority to even consider your arguments.

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Fixed Based Operators (FBO) | Airports | Greg Reigel

Cirrus Awarded Colier Trophy for Vision Jet

by Tori Williams 1. May 2018 13:04
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It is no secret that Cirrus is having an incredibly successful year. As they continue to expand into their new Knoxville, TN location, sign contracts with multiple flight schools to furnish their training fleet, and improve upon innovative aircraft designs such as the G5, Cirrus shows no signs of slowing down. Big news was released earlier this month regarding their development of the world’s first single-engine Personal Jet, the Cirrus Vision Jet.

The National Aeronautic Association (NAA) announced that the Cirrus Aircraft Vision Jet has been awarded the 2017 Robert J. Collier Trophy. The Vision Jet marks several firsts in civil aviation, and perhaps the beginning of a new age of civil aviation entirely. It has the distinction of being the first single-engine jet to be certified with the FAA, and the first jet of any type designed to include the Cirrus Airframe Parachute System (CAPS.) This marriage of safety and innovation made it an obvious choice for the Collier Trophy, which is awarded annually "for the greatest achievement in aeronautics or astronautics in America, with respect to improving the performance, efficiency, and safety of air or space vehicles, the value of which has been thoroughly demonstrated by actual use during the preceding year."

The very first prototype of the Vision Jet was produced in July of 2008. After continually improving, polishing, and test flying, the jet was ready for FAA certification almost 10 years later in 2016. Certification was completed in October of 2016, and the first customer Vision Jet was delivered in December of the same year. Cirrus continued to produce the aircraft at a rate of around one per week and announced plans to increase production to deliver between 75 and 125 in 2018.

Cirrus predicts there will be a sizable market for this type of aircraft, as many individuals would enjoy having a private jet but do not have the resources for an entire flight department and multi-pilot crew. With an avionics panel designed very similarly to the SR20 and SR22, pilots who are familiar with other Cirrus aircraft should have little trouble transitioning into this aircraft. Over 600 orders have already been placed for the jet, further confirming its popularity amongst the civil aviation crowd.

Truly, the luxurious interior of the jet is a sight to behold. Spacious enough to seat up to 5 adults plus 2 children, the passenger cabin also features USB charging ports for each seat and an in-flight entertainment system. The oversized windows in the cabin are a huge bonus too, allowing passengers the perfect view every time. Costing only $1.96 Million, Forbes named the Vision Jet “The most affordable private jet in the world.”

The Collier Trophy will be formally presented at the Annual Robert J. Collier Trophy Dinner on June 14, 2018 at a location to be announced. It is on permanent display at the National Air and Space Museum in Washington, D.C. We wish Cirrus all the best in their continued successes, and hope to see more Vision Jets in the sky very soon!

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Financial Analysis - Part 1

by David Wyndham 30. April 2018 12:11
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It seems that in aviation there are some who think finances are scary (read as job threatening) and those who think finances are just simply boring. Both groups try their best to avoid the subject. There is a middle way, those whose knowledge of finances gives them a powerful and convincing tool for making the right aircraft decision!

To do a proper financial analysis, you will need the initial investment required, the variable and fixed costs of operation, and the estimated residual value of the aircraft at the end of the term. Taxes and revenue potential can also play an important part in the analysis. The objective of a financial analysis is to determine which of the qualified aircraft provides the optimum combination of these elements.

Before doing a financial analysis, you will need to establish financial criteria and options. This process starts in the same manner as when you are selecting an aircraft. First you choose the criteria by which you will select an aircraft. With aircraft, we think in terms of things such as range, payload and cabin size. In aircraft financial analyses, we think of things like:

Amount of utilization. For point to point travel, do this in miles (or kilometers). Trips from Point A to Point B have a set distance. Add up those trips' distances. Then divide by the aircrafts' typical trip speeds to arrive at the utilization in hours. 160,000 nautical miles is 400 hours at 400 knots or 500 hours at 320 knots. This will have an impact on the fleet size as well. A large amount of utilization (in miles) can spell three slower aircraft or two faster ones.

Type of ownership. Full ownership, co-ownership, fractional ownership. Maybe not even owning at all. Utilization under 200 hours per year can suggest a form of charter or perhaps fractional ownership. Between 200 to 300 hours, fractional ownership and full ownership should be considered. Over 300 hours tends to favor full ownership. There may be extenuating circumstances to consider as well. 

New versus used. Do the lower maintenance costs, added tax depreciation benefits, and the ability to specify the exact configuration of the new aircraft outweigh the used aircraft's lower acquisition cost? There may be other considerations favoring the new aircraft such as updated avionics.

Lease or Purchase? A lease typically has a very low initial payment, and depending on the type of lease, may not be considered "long term debt" on the corporation's balance sheet. Purchase includes both finance and full payment up front. With a purchase, you do have ownership and after the payment(s), have an asset with a definite value.

Trade-in Value. If you currently own an aircraft, you need to get an idea of its current worth in the market. Price guides such as the Aircraft Bluebook Price Digest, Vref , and The Official Helicopter Bluebook offer a good starting point for determining the value of an aircraft. Nothing beats an appraisal by a qualified appraiser. The National Aircraft Appraisers Association is one place to start. An appraiser will give you the real-world value in today's market that will aid you in negotiations with buyers.

Acquisition Price. For used aircraft, see the references above. You can also look at aircraft-for-sale web sites to see what the "asking" prices are. Keep in mind that there can be a considerable margin between asking and final selling price. An appraiser can also give you some information on used aircraft prices as well. For new, start with the manufacturer's list price. In today's market, most sellers are willing to make a deal, so don't count out a new model that is "just a little bit" outside of the target acquisition price.

Length of ownership. When you analyze each aircraft, use an equal length of ownership. Looking at cash flows and costs over different lengths of time can give you a distorted picture. This is very important when considering the time value of money. When income or expenses occur can be as important as how much.

The methodology to do all the calculations is called Life Cycle Costing. The Life Cycle Costing includes acquisition, operating costs, depreciation, and the cost of capital. Amortization, interest, depreciation, and taxes also play a part in what it costs to own and operate an aircraft and can be included in the Life Cycle Costing as appropriate.

Once you have calculated the life cycle costs of the various options, you can compare the total costs. However, this may not be enough. While the magnitude of expenses and revenues is critical, their timing is important, too. In general, it is preferred to pay the bills as far into the future as we can without penalty. 

The next step is to use the concept of the time value of money. We all can agree that being paid today and paying our bills next week is the preferred way to manage our finances. This is the simple version of the time value of money. Next month, we will explain it in detail and complete the financial analysis.

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David Wyndham | Flight Department

Components of Airport Certification (14 CFR Part 139)

by Tori Williams 2. April 2018 14:18
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If there is one thing I have learned during my time in aviation, it is that sometimes you learn the most when you research aspects of the industry that you generally feel aren’t “relevant” to you. Pilots can learn so much from Air Traffic Controllers, Airport Operations can learn so much from MRO facilities, and the list continues on. Taking the time to look at daily happenings at airports, whether from a flight, operations, maintenance, administrative, or another perspective can help you gain valuable insight to further your career and enrich your experiences.

Just in the way that airport operations personnel could benefit from learning how to fly, pilots could also benefit with learning some basics of how airports are run and which regulations they must adhere to. It should be no surprise that airports have their own special section of the Federal Aviation Regulations that they must follow, and that is 14 CFR Part 139. In this article I would like to give an overview of the main parts of Part 139 so that pilots can better understand why things work the way they do at airports.

Although Part 139 is the baseline for airport certification, not every airport in the U.S. has to follow it. The regulations are specifically for airports that serve scheduled and unscheduled air carrier aircraft with more than 30 seats, serve scheduled air carrier operations in aircraft with more than 9 seats but less than 31 seats, and that the FAA Administrator requires to have a certificate.

The Airport Certification Manual (ACM)

Perhaps the most vital piece of Part 139 compliance is the Airport Certification Manual. This is a document that outlines exactly how an airport will conduct their operations to comply with Part 139. The airport operator writes the ACM, and then every single page is reviewed and signed by the FAA inspector assigned to that airport. If approved, the airport is then issued an Airport Operating Certificate (AOC) which allows flight operations to proceed legally.

Aircraft Rescue and Firefighting

Often referred to as simply “ARFF,” aircraft rescue and firefighting is a major component of airport operations because they have constantly to be ready for any aircraft emergencies. The airport’s “ARFF Index” (designated by letters A-E) is dependent on the longest air carrier aircraft that serves the airport with five or more average daily departures. The ARFF personnel and equipment must be able to properly handle the aircraft type, and they must do a drill where they successfully reach the midpoint of the furthest runway from their station within 3 minutes of being alerted to an accident.

Airport Inspections and Maintenance

There are four types of inspections that airports are required to do under Part 139. These are regularly scheduled, continuous, periodic, and special inspections. Airport operations personnel must physically drive or walk around the airfield, carefully inspecting several key features. These include signage, markings, pavement condition, lighting, FOD (foreign object debris), wildlife, and many others. Regularly scheduled inspections can happen several times a day, and the airport operator outlines in the ACM just how many they are required to do.

Wildlife Hazard Management

Unfortunately, airports can quickly become a very dangerous place for pilots when birds or wildlife are in the area. Just look at Sully! Part 139 airports are required to have a wildlife management plan in place, to help mitigate and eliminate the natural hazards that animals can create. These programs are designed to focus not only on scaring away wildlife already on the airfield, but to move their habitat outside of the security fence so they are less likely to be there to begin with.

Airport Emergency Plan (AEP)

As mentioned before, airports must always be prepared for the worst-case scenario. Thus, a Part 139 airport must submit an airport emergency plan to their FAA inspector in addition to the ACM. This document is a handbook on what exactly should happen in case of an emergency. All possible scenarios should be covered, including terrorism, fuel farm fires, natural disasters, and of course aircraft accidents. FAA Advisory Circular 150/5200-31C, Airport Emergency Plan, provides guidance in meeting the requirements for the plan.

Snow and Ice Control Plan (SICP)

Depending on the airport, snow and ice may be a major problem that has to be dealt with every year. Keeping the airport safe and open is the biggest concern during a snow event, so airports are required to submit a plan for how they will tackle the runway contaminate. This plan must include staffing expectations, equipment usage, priority areas that will be plowed first, and much more. During this time they must also monitor the conditions and let pilots know how what to expect when landing.

Records Keeping

Part 139 is very clear about which records must be kept on site and for how long. Most records, including inspection reports, NOTAMs, incident and accident reports, and fueling inspections are required to be kept for 12 calendar months. Records for the training of personnel who operate in the movement area (the portion of the airfield controlled by ATC) are required to be kept for 24 calendar months.

I’ve barely scratched the surface of Part 139 Airport operations, but I hope that this broad overview helps you to understand the daily happenings at an airport at least a little better. There is more than meets the eye, and airports have to constantly work to stay on top of every aspect of their operation. If you’re curious about what else Part 139 covers, bring out your FAR AIM and take a look! You will definitely learn something you did not know before.

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Aviation Safety | Airports | Tori Williams

Falsification And The FAA’s Revocation Of Certificates: Same As It Ever Was.

by Greg Reigel 2. April 2018 08:38
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As many of us know, revocation has been the FAA’s choice of sanction in medical application falsification cases for a very long time. This was especially true prior to enactment of the Pilots Bill of Rights I (the “PBR-1”), when the National Transportation Safety Board (the “Board”) was “bound by” the FAA’s choice of sanction. In all of the case law prior to PBR-1, the Board relied upon this language and deferred to the FAA’s imposition of revocation in falsification cases.

In 2012 the PBR-1 removed the “bound by” language from the regulations. Since that time, the Board has followed the traditional doctrine of judicial deference set forth in Martin v. OSHRC and subsequent cases when determining whether to defer to the FAA’s imposition of revocation in falsification cases. However, the deference the Board must accord to the FAA in sanction review is not unfettered, and it does not eliminate or replace the due process requirement for the Board’s evaluation. In each case the Board must consider aggravating and mitigating factors and compare factually similar cases to determine whether the FAA’s choice of sanction is appropriate.

In practice, administrative law judges have discussed the need to analyze and weigh the facts and circumstances of each case when they apply the principles of judicial deference to determine if the sanction selected by the FAA is appropriate. In each of those cases, the Board on appeal also considered the merits of the FAA’s sanction choice, even though in both instances it was within the recommendations of the FAA’s Sanction Guidance Table. And yet in each case the sanction of revocation was affirmed.

Although the FAA will often state that it "carefully followed the sanction guidelines when it proposed revoking all airman certificates held by the respondent", this is self-serving at best. 14 C.F.R. § 67.403(b)(1) provides for suspending OR revoking airman and medical certificates. However, contrary to Section 67.403(b)(1), FAA Order 2150.3B, Appendix B-4-b(1) (the FAA's Sanction Guidance Table) states that revocation of all of an airman’s certificates is the only available sanction.

And although the FAA may deny it, a review of the Board’s past and present docket, as well as Board precedent, clearly shows the FAA very rarely seeks any sanction other than revocation of all airman certificates in cases where it alleges falsification. So, to say the FAA "carefully followed the sanction guidelines" implies analysis and consideration that the FAA’s own guidance does not permit.

Also, the FAA almost always claims its chosen sanction is appropriate because the alleged falsification shows the airman lacks qualification to hold any airman certificate or airman medical certificate. Yet after one year from the date of the order of revocation the airman will typically be allowed to reapply for airman certificates, and provided the airman is otherwise qualified, the prior revocation will not prohibit the airman from being issued airman certificates.

And in the meantime, the airman can apply for and be issued a new medical certificate provided he or she is able to demonstrate that he or she is qualified to hold a medical certificate under 14 C.F.R. Part 67. The fact that the regulations and the FAA permit application for and issuance of both airman and medical certificates after the FAA concludes that an airman is not qualified to hold those certificates, as a matter of course, belies both the accuracy and the legitimacy of the FAA’s conclusion.

It is hard to understand how revocation of all of an airman’s certificates, rather than suspension, is anything other than a punitive sanction that the FAA automatically assesses without thought or consideration to the factual circumstances of each case. Further, the FAA’s often-heard claim that it "has limited its decision to what is prescribed by the sanction guidelines" is an admission that it has disregarded the clear language of the regulation permitting revocation OR suspension. The FAA's singular selection of sanction to the exclusion of what is otherwise provided in the regulation is, both on its face and in application, arbitrary and capricious, and should not be entitled to deference.

But, in spite of the above, both the Board and the courts continue to defer to the FAA’s imposition of revocation in falsification cases and to rely upon pre-PBR-1 precedent to support those decisions. It isn’t clear to me why the Board and the courts may rely upon those cases as precedent when they were decided based upon the requirement that the Board was “bound by” the FAA’s choice of sanction, and that requirement is no longer present. Unfortunately, in falsification cases where the FAA’s continued "knee-jerk" reaction is to revoke all of an airman’s certificates, the words of The Talking Head’s seem apropos: “same as it ever was.”

 

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Greg Reigel



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