All posts tagged 'aviation law'

Are You In or Are You Out?

ADS-B In VS. ADS-B Out

By Mark Wilken
Director of Avionics Sales for Elliott Aviation

www.elliottaviation.com

Avionics at Elliott Aviation

 

Automatic dependent surveillance – broadcast, or ADS-B, is a system put into place by the FAA that promises to make the skies safer for everyone. ADS-B signals use GPS technology, which is far more reliable than radar and will allow air traffic control to reduce separation minimums. As an upcoming mandate, each aircraft will be required to transmit ADS-B to ground stations by January 1st, 2020. While the mandate to aircraft operators only requires ADS-B out, this technology can give you some highly beneficial information by utilizing ADS-B in. I’ll explain the differences below:

ADS-B Out

When you hear about mandates from the FAA, they are talking about ADS-B out. ADS-B out is a WAAS GPS based signal that broadcasts your aircraft position, vector, altitude and velocity to ADS-B ground stations. This will allow air traffic controllers to more efficiently route traffic to reduce congestion, emission and fuel consumption. To ensure safety, ADS-B needs to broadcast WAAS GPS data from a highly accurate source. Your two options are the dedicated 978 MHz universal access transceiver (UAT), or a 1090 MHz Mode S “extended squitter” transponder with an approved WAAS GPS navigation source. If you already have a WAAS GPS on board, you may just need your transponder updated.

ADS-B In

While on the surface, ADS-B may just seem like a mandate, you can take advantage of ADS-B technology by utilizing the highly-beneficial ADS-B in. ADS-B in gives you free datalink traffic and weather that can be show on select displays and mobile devices. With a dual-link receiver, ADS-B in allows you to see all ADS-B equipped aircraft in your vicinity because it receives signals for 978 UAT and 1090 MHz ES transponders. In addition, when you are in range of ground stations, you see a traffic picture similar to what the air traffic controllers are seeing.

ADS-B will give pilots and passengers many long-term benefits, however, ADS-B in gives you a more immediate return on your investment. If you have any further questions on if your aircraft will comply or how you can take advantage of ADS-B in, contact your certified avionics installer.

Mark Wilken is the Director of Avionics Sales for Elliott Aviation, which employs over 40 avionics technicians at their headquarters in Moline, IL. Mark began his career at Elliott Aviation in 1989 as a bench technician repairing radios and quickly became the manager of the department. Mark helped launch Elliott Aviation’s Garmin G1000 retrofit program in which the company has installed more King Air G1000’s than all other dealers in the world combined. Recently, he has headed STC programs for the newly launched Aircell ATG 2000 system for Hawker 800/850/900, Phenom 300 and King Air 350/B200/B200GT. Mark is a licensed pilot and holds an associate’s degree in avionics and a bachelor’s degree in aviation management from Southern Illinois University.

Elliott Aviation is a second-generation, family-owned business aviation company offering a complete menu of high quality products and services including aircraft sales, avionics service & installations, aircraft maintenance, accessory repair & overhaul, paint and interior, charter and aircraft management. Serving the business aviation industry nationally and internationally, they have facilities in Moline, IL, Des Moines, IA, and Minneapolis, MN. The company is a member of the Pinnacle Air Network, National Business Aviation Association (NBAA), National Air Transportation Association (NATA), and National Aircraft Resale Association (NARA).

 

Sleep Apnea and Flying - A Summary of the Situation

In a recent FAA newsletter, Federal Air Surgeon Dr. Frederick Tilton reported the FAA "will be releasing shortly" a policy requiring that pilots with a body mass index (BMI) of 40 or greater, and a neck size of 17 inches or greater, undergo screening for sleep apnea prior to receiving a medical certificate. Tilton’s newsletter commentary adds that, over time, additional pilots would be required to submit to OSA screening, as the agency lowers the BMI threshold.

Here’s a link to the newsletter:

AOPA and EAA reacted to the announced policy with strongly worded letters "demanding" that it be suspended. They argued that the policy addresses a problem that exceeds the Federal Flight Surgeon’s mandate, could add a financial burden to the pilot community, and hasn’t been proven to exist. AOPA Thursday expressed its support for the House’s legislation and added some choice words. AOPA president Mark Baker said, "The policy change is arbitrary and capricious and doesn’t make sense given the data." AOPA says that a review of ten years of general aviation accident data "found no cases in which sleep apnea was a causal or contributing factor."

Less than a week ago, U.S. House of Representatives aviation subcommittee chairman Frank LoBiondo (R-2 NJ) introduced H.R. 3578 – legislation that would compel the Federal Aviation Administration (FAA) "to ensure that any new or revised requirement providing for the screening, testing, or treatment of an airman or an air traffic controller for a sleep disorder is adopted pursuant to a rulemaking proceeding, and for other purposes." "We thank Representative LoBiondo and other House lawmakers for recognizing that a policy of this magnitude must be vetted through the established rulemaking process, which has proven to be effective so many times in the past," NBAA President and CEO Ed Bolen said. "It is imperative that any new burden on aviators, in this case pilots, be thoroughly analyzed in consultation with stakeholders." LoBiondo’s measure has been referred to the House Committee on Transportation and Infrastructure.

Where do you stand on this? If you suffer from sleep apnea, does it impact your performance as a pilot?

UPDATE 12-5-13: The NBAA welcomes the House Committee passage of H.R. 3578 here.

UPDATE 12-9-13: Advanced Aircrew Academy has an excellent blog posting regarding obtaining the special issuance of an FAA Medical with sleep apnea here.

UPDATE 12-10-13: The Civil Aviation Medical Association (CAMA), the professional organization for Aviation Medical Examiners who provide medical certification exams to the nation's pilots, has joined the consensus against the FAA's new sleep apnea policy announced last month. More information on the EAA's website here.

UPDATE 12-11-13: Reps. Todd Rokita (R-IN) and Sam Graves (R-MO) introduced a bill in the U.S. House today that seeks to abolish the third-class medical certificate for many pilots who fly recreationally. The General Aviation Pilot Protection Act of 2013, co-sponsored by Reps. Bill Flores (R-TX), Mike Pompeo (R-KS), Collin Peterson (D-MN), and Richard Hanna (R-NY), would require pilots who fly recreationally to hold a valid driver's license in lieu of a third-class medical certificate and operate under specific limitations.

UPDATE 12-13-13: During a Dec. 12 webinar presentation to discuss the agency's controversial new OSA-screening proposal with industry stakeholders, Federal Air Surgeon Dr. Frederick Tilton appeared determined to push ahead with the requirements. "If Congress passes a law [forcing industry consultation], we’ll be compliant with it," Tilton said during the webinar. "Until they do so, we will move forward with this." For more on this new development, plus the NBAA's reaction, she their press release here.

UPDATE 12-20-13: The FAA will delay implementation of its new sleep apnea policy planned for next month in order to gather additional input from the aviation and medical community. For more information, as well as the EAA's reaction, click here.

UPDATE 3-6-14: The National Business Aviation Association (NBAA) joined a coalition of aviation groups this week in calling for swift passage of U.S. Senate legislation aimed at bringing transparency to any decision by the Federal Aviation Administration (FAA) to implement mandatory testing of pilots and air traffic controllers for obstructive sleep apnea (OSA) before receiving a medical certificate.

"As aviation community stakeholders, we are writing to express our support for S.1941, commonsense bipartisan legislation to address the sweeping [FAA] proposal to change the policy on sleep apnea for pilots and air traffic controllers without the benefit of a rulemaking process," reads the March 4 letter to senators. "Further, we wish to express our collective hope that passing this important bill in a timely fashion will be a priority for the U.S. Senate in the coming weeks." Read the coalition's letter in its entirety here.

Answers To Aircraft Dry-Lease Questions

In an August 11, 2011 Legal Interpretation, the FAA discussed regulation of aircraft wet and dry leases. Under a dry lease of an aircraft the lessor provides the aircraft and the lessee supplies his or her own flight crew, retains operational control of the flight and may operate under FAR Part 91. Under a wet lease, the lessor provides both the aircraft and the crew and retains operational control of the flight, but the lessor is usually required to hold an operating certificate because the FAA considers it to be providing air transportation.

According to the Interpretation, "[a] key consideration in differentiating a dry lease from a wet lease is whether the aircraft and flight crew are obtained separately, or provided together as a package." For example, if the evidence shows that the parties are "acting in concert" to furnish an aircraft and crew, then the FAA would likely consider the arrangement a wet lease. However, whether an aircraft lease is a dry or wet lease is determined on a case-by-case basis.

The Interpretation goes on to state that the regulations do not limit the number of lessees that may lease an aircraft, nor do they establish hourly requirements for aircraft leases. Those issues are "contractual terms negotiated by the owner and the lessee." Additionally, a lessee may hire the same management company that is used by the owner, provided that the other facts and circumstances do not show that the arrangement is "merely a wet lease in disguise."

The interpretation also notes that a lessee may contract with the same flight crew that is contracted for by the aircraft owner. But again, only so long as the other evidence does not suggest that the arrangement is really a wet lease. The Interpretation states "[g]enerally the FAA would consider an arrangement where a person leases an aircraft from its owner, and secures the flight crew from another source to be a dry lease. If the aircraft and flight crew are provided as a package, the lease would be a wet-lease."

Finally, the Interpretation indicates that the FAA "does not have specific requirements regarding collection of payment for the flight crew. However, the method of payment may serve as indicia of whether the parties have entered into a wet- or dry-lease agreement."

If you enter into aircraft lease arrangements, you should become familiar with this Interpretation. However, the Interpretation only provides a general outline of how the FAA will review such arrangements. Since the "devil is in the detail," having an aviation attorney review the particular circumstances for each situation and then draft or review an appropriate written lease agreement can protect aircraft lessors, aircraft lessees, and the pilots who operate the aircraft, from FAA enforcement.

Can An Aviation Insurer Deny Coverage If You Breach The Terms Of Your Insurance Policy?

If you are in an aircraft accident or you suffer a loss will your aviation insurance policy provide coverage when you need it? That depends.

Aircraft insurance policies have requirements, conditions and provisions with which the insured must comply in order for the policy to provide coverage. These requirements often mandate the condition of the aircraft, qualifications and currency of the pilot and accuracy of the information provided by the insured to the insurance company.

If an accident or loss occurs, and a policy's provision has been breached by the insured, the insurer may have the right to deny coverage. In that situation, the insured could find that he or she is without coverage. But, you may ask, what if the breach of a policy provision is unrelated to or had nothing to do with the accident or loss, will coverage still be denied?

The answer to that question will depend upon the state law applicable to the case. In some states (Florida, Hawaii, Illinois, Iowa, Mississippi, Montana, South Carolina, Texas and Washington) an insurer cannot deny coverage unless the breach was causally related to the accident or loss. In other states (Alaska, Arizona, California, Colorado, Georgia, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, North Carolina, Oregon, Pennsylvania, South Dakota, Tennessee and Virginia) a causal connection between the policy breach and the accident or loss is not required for the insurer to deny coverage. The remaining states have not decided the issue one-way or the other.

If you live in a state that does not require a causal connection between a policy breach and the accident or loss, you need to make sure you comply with all of the provisions and requirements contained in your policy. Failure to comply could very well result in a denial of coverage if you are ever involved in an accident or loss.

If you live in a state in which a causal connection is required between a policy breach and an accident or loss, the insurer will have the burden of proving the existence of a causal connection. That may or may not be easy, depending upon the circumstances.

In either case, you would be fighting for coverage. In the aftermath of an accident or loss, a fight over coverage is the last thing an insured should have to worry about. To avoid these situations and to ensure that you will have coverage when you need it, you need to be aware of and comply with the requirements and conditions of your aviation insurance policy. If you need help understanding your policy, talk with an experienced aviation attorney who can review and explain the terms of your policy. Then you can enjoy the security of the aviation insurance policy for which you are paying your premiums.

NTSB Allows Airmen To Waive Exclusion Of ASAP Report From Enforcement Action


In a recent decision by the NTSB, Administrator v. Austin and McCall, the Board determined that an administrative law judge ("ALJ") should have admitted into evidence two Aviation Safety Action Program ("ASAP") reports offered by two airmen in an enforcement hearing. ASAP programs are governed by FAA Advisory Circular 120-66B and typically provide that an airman flying for an air carrier has the option of submitting a voluntary report concerning an incident. Once submitted, the ASAP event review committee (ERC) may review the report, accept the reporting airman into the ASAP, and the FAA then agrees not to initiate a certificate action against the airman based upon the reported incident. AC 120-66B also specifically provides that an ASAP report may not be used for any purpose in an FAA legal enforcement action, unless the report involves criminal activity, substance abuse, controlled substances, or intentional falsification.

In this case, the airmen wanted to have ASAP reports they submitted admitted into evidence at the hearing. However, the ALJ granted the FAA's motion to exclude the ASAP reports based upon AC 12-66B. The ALJ determined that ASAP reports were not subject to review and that such a review would render ineffectual the memoranda of understanding under which ASAP programs operate. (The elements of an ASAP are set forth in a Memorandum of Understanding (MOU) between the FAA, certificate holder management, and an appropriate third party, such as an employee's labor organization or their representatives). Interestingly, the ALJ also acknowledged that this issue was one of first impression for the Board and that the Board needed to decide the issue before he would review the ASAP reports.

After a hearing, the ALJ affirmed the FAA's orders of suspension against the airmen. One of the airman then appealed the ALJ's decision to the full Board. Not surprisingly, the airman argued, among other things, that the ALJ improperly excluded the ASAP reports.

The Board initially noted that the protection provided by AC 120-66B prohibits the FAA from using ASAP evidence in an enforcement action. However, it then concluded that AC 120-66B "does not prohibit a pilot from waiving this protection to submit his or her own ASAP report into evidence." As a result, the Board remanded the case back to the ALJ for him to review the ASAP reports and to consider whether the airmen's filing of their respective ASAP reports protected one or both of them from FAA enforcement action.

It will be interesting to see how the ALJ rules on remand since the Board simply ruled that the ASAP reports were admissible and should be considered by the ALJ. Unfortunately, the Board didn't provide any guidance on whether the ASAP reports should have precluded the FAA from pursuing enforcement action against the airmen in the first place. I guess we will have to see what the ALJ decides.

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