April 2021 Aviation Articles

Before You File A Part 16 Complaint Against An AIP Airport Sponsor, Make Sure You Try To Settle.

Airport owners or operators (“Airport Sponsors”) who receive federal grant funds under the federal Airport Improvement Program (“AIP”) must agree to certain obligations and conditions.  These obligations and conditions are commonly referred to as “Grant Assurances.” Sometimes an airport tenant may end up in a dispute with an Airport Sponsor if the tenant thinks the Airport Sponsor is not complying with certain Grant Assurances and harming the tenant.

Some of the most commonly disputed Grant Assurances include Grant Assurance 19 (Operation and Maintenance), Grant Assurance 22 (Economic Non-Discrimination), Grant Assurance 23 (Exclusive Rights), Grant Assurance 24 (Fee and Rental Structure), Grant Assurance 25 (Unlawful Revenue Diversion), and Grant Assurance 29 (Airport Layout Plan).

If a dispute arises, an airport tenant has options for pursuing a complaint against the Airport Sponsor.  However, the tenant should use reasonable efforts to try and resolve the dispute with the Airport Sponsor.  Not only is this a good business practice, but it is also a requirement if the dispute can not be resolved and a formal complaint to the FAA is needed.

Making A Complaint

An airport tenant who believes an Airport Sponsor has violated one or more of the Grant Assurances (the “Complainant”) may make a complaint to the FAA. The FAA will then investigate and, if the FAA finds non-compliance, the FAA may take enforcement action.

Informal Complaint.   Under 14 C.F.R. Part 13, a Complainant may make an informal complaint to the appropriate FAA personnel in any regional or district office, either verbally or in writing. The FAA will then review the complaint, investigate as needed, and determine whether (1) FAA action is warranted, or (2) if it appears that the airport sponsor is violating any of its federal obligations.

Formal Complaint.     If the matter is not resolved to the Complainant’s satisfaction, the Complainant may file a formal complaint with the FAA under 14 C.F.R. Part 16. And as the reference implies, this type of complaint involves a more involved and lengthy procedural process.  It also takes significantly more time before the FAA decides whether a violation has occurred.

Informal Settlement Efforts

Before a Complainant may file a formal complaint, 14 C.F.R. § 16.21 requires the Complainant to initiate and engage in good faith efforts to resolve the disputed matter informally with those individuals or entities the Complainant believes are responsible for the noncompliance. These efforts may include common alternative dispute resolution methods such as mediation, arbitration, or the use of another form of third-party assistance.

Additionally, the FAA Airports District Office, FAA Airports Field Office, FAA Regional Airports Division (responsible for administering financial assistance to the airport sponsor), or the FAA Office of Civil Rights are available, upon request, to try to help the parties resolve their dispute informally. Efforts to resolve the dispute informally are mandatory.

When the Complainant files a formal complaint, 14 C.F.R. § 16.27 requires the Complainant to certify that: “(1) [t]he complainant has made substantial and reasonable good faith efforts to resolve the disputed matter informally prior to filing the complaint; and (2) [t]here is no reasonable prospect for practical and timely resolution of the dispute.”

Although neither the FAA nor the regulations require a specific form or process for informal resolution, the Complainant’s certification must include a description of the parties’ efforts, which must be relatively recent prior to the filing of the complaint.

If the Complainant fails to make the certification, does not sufficiently describe the settlement efforts, or if the parties did not engage in informal settlement efforts, the FAA will dismiss the Complainant’s complaint.  Although the dismissal will be without prejudice, the Complainant will then be required to refile the Complainant’s complaint with the required certification.

Conclusion

If you are an airport tenant in a dispute with an AIP airport sponsor, you have options available to you for resolving the dispute.  As is often the case in disputes, the parties’ mutual settlement of the dispute is preferable and encouraged.

So, it usually a good idea to engage in settlement negotiations early.  And if the matter is not settled, you should be able to document the settlement efforts in which the parties engaged.  That way if a formal Part 16 complaint is required, you will have what you need to certify your informal settlement efforts and avoid dismissal of your complaint.

The Ins and Outs of Picking an Alternate Airport

You are planning your IFR flight but your destination airport is forecasting 1,000-foot ceilings with three statute miles due to a thunderstorm in the vicinity. According to FAR 91.169,

 

  • For aircraft other than helicopters. For at least 1 hour before and for 1 hour after the estimated time of arrival, the ceiling will be at least 2,000 feet above the airport elevation and the visibility will be at least 3 statute miles”.

You conclude that your best decision would be to file an alternate airport. Which one do you choose? Here are a few tips to think about in picking the right alternate airports for your IFR flight plan.

What type of storm is it and what direction is it moving?

Believe it or not, knowing the type of storms in the vicinity could be very important to your alternate airport. A few different storm types include single-cell, multi-cell, supercell, frontal thunderstorms, and squall lines. Particular traits such as the duration of the storm, how fast it moves, the environmental instability that will support vertical development, and the length of the storm are all factors to consider. The last thing you want to do is pick an alternate airport that is in the direction of the moving storm. The regulations suggest that you remain 20 NM away from the storm as hail, lighting, and other factors could put you in greater danger.

Does this alternate airport have precision, non-precision, or no instrument approaches?

Depending upon the type of approaches available at the alternate airport, you need to ensure you have the minimum weather at the estimated time of arrival. For an airport with a precision approach procedure, you need a minimum ceiling of 600 feet and two statute miles of visibility to file it. For a non-precision approach procedure, you need a ceiling of 800 feet and two statute miles of visibility. Lastly, for an alternate airport without an instrument approach available, the ceilings and visibility minima must allow you to descend from the MEA, approach, and land under basic VFR conditions. In some cases, the 200 feet of lower guidance from a precision approach can be the determining factor of if you can land or not. Choose an airport that will give you the best chance at landing. Be careful to observe nonstandard alternate minimums and if that airport can be used as an alternate altogether.

Fuel on board (FOB) and other factors that will affect your alternate choice.

It is important to pick an alternate airport that allows you to fly to the first airport of intended landing, fly from that airport to the alternate airport, and still fly after for 45 minutes at a normal cruising speed. Make sure to calculate FOB because the airports that will permit you the diversion may be specific to the aircraft’s performance.

Additionally, look at your alternate airport’s runway surface type, lengths, slope, and services provided. Calculate runway takeoff and landing distances for that airport and assure that your calculations are feasible for your payload and aircrafts specific performance. Do remember that your airfield conditions (wet runway) will adversely affect your landing and takeoff distances. The slope of the runway can also provide benefits and disadvantages to your performance. Just remember that for the most favorable performance, you want to takeoff downhill and land uphill. Lastly, make sure to choose an airport that provides you with necessary services such as fuel, hangar space, maintenance, etc.

There are a lot of things to consider when choosing an alternate airport. One thing to remember is by taking time to consider several different factors in picking a good alternate during your preflight planning, you can establish early threat and error management before you are airborne. Stay ahead of every flight!

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