All posts tagged 'FAA' - Page 11

Wonder What The Term "Congested Area" Means? Some FAA Inspectors Wonder That Too.

One of the frustrating aspects of aviation faced by airmen is the lack of concrete, objective definitions in the FARs. Rather than giving us a definition we can use and apply, oftentimes the FAA and the NTSB have opted for taking a "case-by-case" approach in determining how to apply certain terms. Unfortunately, this "I'll know it when I see it" approach isn't particularly helpful for airmen out in the real world.

The FAA recently reiterated this position in a Memorandum issued by the Office of Chief Counsel in response to a request for a legal interpretation submitted by Melvin O. Cintron, manager of the FAA's General Aviation and Commercial Division. Specifically, Mr. Cintron was looking for a legal interpretation regarding the definitions of limitations on experimental aircraft, particularly with regards to Living History Flight Experience (LHFE) flights operations. However, the Memorandum addressed the issue of these definitions more broadly.

The Memorandum initially observed that these terms, along with other terms such as "congested areas," "other than congested areas," "sparsely populated," and "open air assembly of persons" appear in a number of the FARs including:

§ 91.119 (Minimum Safe Altitudes: General);

§ 91.303 (Aerobatic Flight);

§ 91.313 (Restricted Category);

§ 91.319 (Aircraft having experimental certificates: Operating limitations);

§ 133.33 (Operating rules);

§ 137.49 (Operation over other than congested areas)

§ 137.51 (Operation over congested areas: General); and

§ 137.53 (Operation over congested areas: Pilots and aircraft.

Unfortunately, it then stated "[w]e are unable to provide you with discrete definitions for these terms." And the FAA is apparently satisfied with this fact because the Memorandum goes on to state "there has been a long history stretching back over 40 years of using a case-by-case approach in determining how to apply those terms and how they relate to one another" and "[t]his approach 'is well documented and supported by many legal opinions issued by the FAA, the National Transportation Board (NTSB) and federal courts.'"

With respect to "densely populated", "congested area" in the context of FAR 91.119 cases the Memorandum observed that "[t]here is no precise density of population, ground traffic or congestion, or description of the proximity of buildings, or number of residences." It went on to note the term "congested airway" has not been specifically referenced or defined by interpretation. Although the Memorandum speculated as to why that was the case, it did not attempt to provide any guidance or interpretation of that term.

Next, the Memorandum rejected Mr. Cintron's suggestion that pilots should be able to easily determine the meaning of any definitions during their preflight planning using existing navigation aids and charts. According to the FAA, aeronautical charts and NOTAMs only provide "general guidance" for use in complying with FAR 91.119 and a pilot should obtain local information from their local Flight Standards District Office for use with the pilot's prior knowledge of the area and information the pilot obtains from other sources. After all, the Memorandum observed, "[u]ltimately, it is the pilot's responsibility to maintain the minimum safe altitudes required by § 91.119."

Finally, the Memorandum concluded that Mr. Cintron should "review of the appropriate FAA guidance material to determine whether further explanation of these definitions through examples may help users and inspectors to better understand what is meant by these terms." From my perspective, and, I suspect, the perspective of most pilots, this isn't very helpful.

What is troubling for me is that the confusion regarding the meaning of these undefined terms isn't limited to pilots. Inspectors don't know what these terms mean or how they are to apply them to pilots' operations. Unfortunately, this Memorandum tells me that the situation won't be changing anytime soon. As a result, airmen should make sure they are familiar with the areas over which they fly and remember that the FAA, NTSB and the Court will judge a flights compliance with FAR 91.119 using 20/20 hindsight.

Logging Time And Payment Of Expenses When You Are Flying With A Safety Pilot

In a recent Legal Interpretation, the FAA Office of the Chief Counsel responded to questions regarding the logging of pilot in command ("PIC") time and distribution of expenses when a safety pilot is used. The scenario presented involved two pilots, A and B, planning a Part 91 local VFR flight for the purpose of Pilot A satisfying instrument time or instrument currency requirements. Pilot A secured the aircraft (type certificated for one pilot crewmember), and Pilot B agreed to serve as a safety pilot during the portion of the flight that required a safety pilot. Both pilots held private pilot certificates and were qualified to act as PIC.

In addressing the logging of flight time, the Interpretation observed that FAR 91.109(b) prohibits a pilot from operating in simulated instrument flight without a safety pilot. Thus, during the simulated instrument portions of the flight Pilot B was a required crewmember. As a result, the Interpretation stated that Pilot B could log second in command ("SIC") time for the time in which Pilot A acted as PIC and was the sole manipulator of the controls during simulated instrument flight. It also noted that since Pilot A was acting as PIC during the simulated instrument portion of the flight, Pilot B would not be able to log PIC time under FAR 61.51(e). However, if Pilot B agreed to act as PIC for the simulated instrument portion of the flight, the Interpretation concludes "then Pilot B could log that time as PIC time under FAR 61.51 (e)(1)(iii) because he is acting as PIC of an aircraft for which more than one pilot is required under the regulation under which the flight is being conducted." Additionally, as the sole manipulator of the controls of the aircraft for which Pilot A is rated, Pilot A would also be permitted to log the time as PIC time under FAR 61.51(e)(1)(i).

With respect to the question of whether Pilot B would be obligated to share expenses for the flight, the Interpretation initially observed that FAR 61.113(c) prohibits a private pilot acting as pilot in command from paying less than his or her pro rata share of the operating expenses of a flight with passengers. In the scenario presented, Pilots A and B were both required crewmembers during the portion of the flight that is conducted in simulated instrument conditions. As a result, the Interpretation concludes that if Pilot B acts as PIC only during the simulated instrument portions of the flight, Pilot B would not be required to pay a pro-rata share of the operating expense of the flight under FAR 61.113(c) since Pilot B would not be acting as PIC on a flight carrying passengers.

This Interpretation highlights the FAA's distinction between "acting" as PIC for a flight versus logging time as PIC by virtue of being the sole manipulator of the controls of the aircraft. As you can see, this distinction has a direct bearing on how a safety pilot, or any other pilot for that matter, logs flight time. Understanding this distinction will help ensure that you are logging your flight time correctly whether you are acting as, or flying with, a safety pilot.

FAA Defines "In Furtherance Of Business" Limitation On Operations By A Sport Pilot

In a recent Legal Interpretation, the FAA Office of the Chief Counsel responded to a request for a definition of what it means to be "in furtherance of a business" in the context of the limitation upon sport pilot privileges. As you may know, FAR § 61.315(c)(3) prohibits an individual exercising sport pilot privileges from acting as pilot in command of a light-sport aircraft when he or she is (1) carrying a passenger or property for compensation or hire, (2) operating for compensation or hire, or (3) operating in the furtherance of business.

The Interpretation notes that, rather than actually defining "sport and recreational flying", the intended limitation on sport pilot operations, it made more sense to define the types of operations that were not permitted for a sport pilot. This was "intended to better clarify [the FAA's] original intent and align the privileges and limitations of a sport pilot certificate with those of a recreational pilot certificate found in FAR §§ 61.101(e)(3) through (5) (prohibiting a recreational pilot from acting as pilot in command of an aircraft "in furtherance of a business.")

The FAA also wanted to distinguish the sport and recreational pilot privileges and limitations from those of private pilots under FAR § 61.113(b) (permitting a private pilot to act as pilot in command of an aircraft for compensation or hire in connection with any business or employment if the flight is only incidental to that business or employment and the aircraft does not carry passengers or property for compensation or hire.) The Interpretation observes that "[f]lights typically permitted to be carried out by a private pilot under the provisions of § 61.113(b) would not be permitted to be engaged in by a person exercising sport pilot privileges."

To further explain this limitation, the Interpretation notes that "flights in which transportation is provided for a business purpose, 'even if incidental to your employment or the business you intend to conduct, and not required by your business or employment would be considered in furtherance of a business.'" Thus, if a flight is conducted for a business purpose, even if it is only incidental to that purpose, then the flight would be considered to be "in furtherance of a business" and could not be conducted by a sport pilot.

Finally, it is important to note that "the restriction on the use of a light-sport aircraft in furtherance of a business is not based on the certification of the aircraft being used but rather on the certification of the airman operating the aircraft." As a result, light-sport aircraft may be used in furtherance of a business etc. provided the flights are operated by an airman with a private pilot or higher certificate.

ALJ's Dismissal With Prejudice After FAA Voluntary Dismissal Satisfies EAJA "Prevailing Party" Requirement

The United States Court of Appeals for the D.C. District recently reversed the FAA Administrator's determination that an applicant seeking attorney's fees under the Equal Access to Justice Act ("EAJA") was not a prevailing party after the FAA withdrew its complaint before hearing, even though an ALJ then entered an order dismissing the case with prejudice. In Green Aviation Management Co., LLC v. Federal Aviation Administration, the FAA filed a complaint alleging that Green Aviation operated a flight with 10 passengers when the aircraft was only approved for 9 passengers. The FAA was seeking to assess a $33,000 civil penalty against Green.

Prior to the hearing, the FAA withdrew its complaint. Based upon the FAA's withdrawal, the ALJ entered an order dismissing the case with prejudice as required by 14 C.F.R. § 13.215. Green Aviation then submitted an EAJA application for attorney's fees. Although the ALJ found that Green Aviation was a prevailing party, as required by EAJA, he nonetheless found that the FAA was substantially justified in pursuing its case and, as a result, the ALJ denied Green Aviation's EAJA application.

Green Aviation appealed the ALJ's denial to the FAA Administrator. However, contrary to the ALJ, the Administrator determined that Green Aviation was not a prevailing party. The Administrator reasoned that the ALJ's dismissal was required by the regulations and, since the ALJ had no discretion, his order did not make Green Aviation a prevailing party. Green Aviation then appealed the Administrator's decision to the D.C Circuit.

On appeal, the Court initially observed that a prevailing party in an EAJA fee case must meet two requirements: the judgment must be in favor of the party seeking the fees; and the judicial pronouncement must be accompanied by judicial relief. The Court found that the ALJ's dismissal order easily satisfied the first requirement.

With respect to the second requirement, the noted that the ALJ's dismissal order was "with prejudice", which resulted in a "res judicata effect" on the parties. That is, it protected Green Aviation from having to pay damages or alter its conduct based upon the same facts and circumstances alleged in the FAA's withdrawn complaint. The Court observed "[t]he dismissal order is thus not a mere formality or a housekeeping measure; rather it is the means by which Green Aviation can obtain res judicata protection."

The Court concluded that Green Aviation obtained sufficient judicial relief to be a prevailing party. As a result, the Court sent the case back to the FAA Administrator to determine whether the FAA's filing of its complaint against Green was substantially justified. If it was not, Green should be entitled to an award of attorney's fees under EAJA.

This is a great decision for parties facing unjustified civil penalty actions. Although it may not prevent the FAA from withdrawing a complaint on the eve of hearing, after a respondent has incurred significant fees, it does allow a respondent the opportunity to hold the FAA accountable.

Responding To An FAA Letter Of Investigation

When the FAA receives notice and evidence to show that a certificate holder (mechanic, repair station, air carrier, pilot etc.) may have violated one or more of the Federal Aviation Regulations ("FARs"), in most cases an FAA aviation safety inspector will send the alleged violator a letter of investigation ("LOI") advising that the FAA is investigating an alleged violation of the FARs. Whether you should respond to an LOI and, if so, how you should respond are two of the most common questions raised by recipients of an LOI.

What The LOI Tells The Recipient

The LOI typically starts out by telling the recipient that the FAA is investigating "an occurrence which involved your operation" or "an incident that occurred" or "maintenance performed on N12345 on such and such a date." In drug and alcohol abatement cases, the LOI will state "we inspected [your facility's] drug and alcohol testing programs to determine compliance with 49 CFR part 40 and 14 CFR part 120. As a result of this inspection, the following apparent violations were discovered…."

After explaining the operation or conduct involved, the LOI advises that the FAA believes the operation or conduct is "contrary to Federal Aviation Regulations." However, the LOI will not tell the recipient what specific FAR(s) the FAA believes the recipient violated. FAA inspectors are specifically advised that the regulations(s) violated should not be listed in the LOI. Since the LOI is intended to advise the recipient of the subject matter of the investigation sufficiently to allow the recipient an opportunity to respond to the facts giving rise to the investigation, the FAA does not want its inspectors citing to specific regulations prematurely.

Next, the LOI specifically states that it is informing the recipient that the matter is under investigation by the FAA and it invites the recipient to discuss the matter with the inspector, submit evidence or statements, or both. For a written statement, the LOI requests that the statement includes all pertinent facts and mitigating circumstances that the recipient believes may have a bearing on the operation or conduct that is under investigation. The LOI requests that the recipient submits any response to the LOI within 10 days of receipt of the LOI. Finally, the LOI usually states that "[i]f we do not hear from you within the specified time, our report will be processed without the benefit of your statement."

The FAA sends the LOI by regular mail and either certified mail, return-receipt requested, or registered mail to the recipient's current address of record in order to establish proof that the recipient was notified of the investigation. If the LOI is returned or undeliverable (because it is addressed incorrectly or the recipient has moved and left no forwarding address), then the FAA inspector is required to correct the address or try to obtain a new address and resend the LOI. An FAA inspector may also deliver the letter in person.

Now, if you are thinking that simply dodging the mail might make the situation go away, unfortunately that isn't the case. If the intended recipient refuses or simply does not pick up the certified letter or registered letter, but the regular mail is not returned, whether the recipient opens it or not, then the FAA presumes, as will the NTSB, that the intended recipient received the LOI. (This is consistent with FARs §§ 61.60 and 65.21 that require airmen to keep the FAA informed of their permanent mailing address by providing the FAA with a new permanent mailing address within 30 days.)

Options For Responding To An LOI

If you receive an LOI, you must determine whether you are going to respond and, if you are, what you should say in your response. Frequently certificate holders believe they have to respond, especially since the LOI seems to imply that a response is required within 10 days. However, that belief isn't correct. No response is actually required. But that doesn't mean you shouldn't respond.

From a basic courtesy standpoint, it seems appropriate to respond to a letter asking for a response. After all, no one likes to have their requests ignored. However, sending a response to an LOI that tries to explain the situation or otherwise "make it go away" very rarely ends well for the certificate holder. Oftentimes the certificate holder's response includes admissions that help the FAA and can later be used against the certificate holder.

Should you send a response to the LOI? Yes, if for no other reason than to acknowledge that you received the LOI and, of course, to show a proper compliance attitude. But, do you say anything more than that in your response? The lawyerly answer to that question is: it depends.

Sometimes it makes sense to simply acknowledge receipt of the letter, advise that you don't have anything to add, and offer to respond to any specific questions or requests the inspector may have. After all, by the time the LOI is sent the inspector has usually conducted some investigation and discovered enough evidence to determine that a violation may have occurred. So why disclose anything that could add to the case?

On the other hand, in some situations it may make sense to provide a more detailed explanation in your response to the LOI. For example, if it is a case of mistaken identity or you have evidence that clearly proves the inspector is wrong, then submitting that information in response to the LOI very well may force the inspector to close the investigation.

Conclusion

Whether, and how, you respond to an LOI are strategic decisions. Since you are already in the FAA's sights, consult with an aviation attorney before sending a response that tries to explain or address the allegations in the LOI. With the assistance of an aviation attorney you can prepare a response that may mitigate damage, minimize investigation, and that will avoid providing admissions or other evidence that could later be used against you. And, at a minimum, an aviation attorney can run interference between you and the FAA.

The LOI is just the beginning of the enforcement process. And although your response to an LOI may not prevent the FAA from pursuing an enforcement action, how you respond to the LOI can potentially have a significant impact on the outcome of the case. Make sure you respond wisely.

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