All posts tagged 'faa' - Page 5

Keeping the FAA Happy When Registering an Aircraft Owned by an LLC

A Limited Liability Company ("LLC") provides personal liability protection to its owners, as well as the tax and management flexibility. Both of these advantages have resulted in the increased use of LLC's for aircraft ownership. However, in order for the FAA to accept an application for aircraft registration submitted by an LLC, the aircraft owner needs to comply with the registration requirements of 14 C.F.R. Part 47.

One of those requirements is that the LLC must meet the U.S. citizenship requirements of 14 C.F.R. § 47.3. One of the ways to prove to the FAA that the LLC does, in fact, satisfy those requirements is to submit a "Statement in Support of Registration by a Limited Liability Company" ("LLC statement"). Although this isn't the only way to prove citizenship to the FAA, it is one of the most common methods.

In the LLC statement, the LLC must identify its members and confirm whether each of its members is a U.S. citizen. However, if one of the members is another LLC, the FAA will require an additional LLC statement for that member LLC identifying its members and confirming that those members are also U.S. citizens. The idea is that the FAA wants to drill down to identify which of the individuals involved are U.S. citizens and then determine whether the LLC qualifies as a U.S. citizen under 14. C.F.R. § 47.2. If that second (or third, if necessary) LLC statement isn't filed, the FAA will not register the aircraft until it either receives the LLC statement(s) or it receives other proof (usually organizational documents for the LLC) showing the citizenship of the members.

When all of the LLC's individual or entity members are U.S. citizens, then the LLC will be considered a U.S. citizen. If all of the individuals or entity members are not U.S. citizens, in order for the LLC to be satisfy the citizenship requirement, 2/3 of its officers/managers satisfy U.S. citizenship AND whether 75% of the voting interest of the LLC is controlled by individuals or entities meeting U.S. citizenship requirements.

Another item on the LLC statement indicates whether the LLC is managed by its members or managers. Whatever answer is provided, that information needs to match the information provided by the LLC on the application for registration. For example, if the LLC statement indicates that the LLC is managed by its members, then the individual who signs the application for registration should indicate his or her title as "member" or "managing member." On the other hand, if the LLC statement indicates that the LLC is managed by managers, then the individual signing the application should indicate his or her title as "manager" or some variant that includes the word manager (e.g. chief manager, chief financial manager etc.). If the LLC statement and the application for registration do not match, the FAA will reject the application.

Additionally, although an LLC may also be managed by officers, if the individual signs the application for registration as an officer (e.g. president, vice-president, treasurer etc.) the LLC statement will not be sufficient for the FAA to determine whether that individual has the appropriate authority. In that case, the FAA will reject the application unless it also receives the LLC's operating agreement or some other documentation evidencing the officer's authority to sign on behalf of the LLC.

Applying for registration of an aircraft with the FAA on behalf of an LLC can be tricky. The aircraft owner(s) using an LLC to own an aircraft need to carefully dot the "i's" and cross the "t's" to ensure that the FAA will accept the LLC's application and register the aircraft. Understanding the LLC statement and the FAA's requirements can help you avoid some of the "gotcha's" that can cause problems for an aircraft owner trying to register an aircraft with the FAA using an LLC.

The End of the PTS? What the New Airmen Certification Standards Will Mean for Pilots


In order to obtain a pilot certificate of any kind in the United States, a pilot must take an FAA Practical Test, better known as a checkride. The checkride you might take tomorrow is not much different from the checkride I took ten years ago. That is about to change. The FAA recently announced that the practical test standards that we all know so intimately will be overhauled. But will pilot training change? Will the actual checkride be conducted differently than it has for decades? Will aviation safety improve?

After the creation of the Air Commerce Act in 1926, which introduced new rules for pilot certification and the first ever regulations pertaining to aviation, along with a host of other things like new navigational aids and designated airways, the nation's first certificated pilots were born. The first official pilot license was issued to William P. MacCracken, Jr., after both Charles Lindbergh and Orville Wright declined the honor, with Orville boasting that he did not need a piece of paper to prove to the world that he was the first pilot.

This first pilot certificate was awarded as an honor in recognition of service to civil aviation. Subsequent certificates were awarded based on the personal judgment of examiners, which could be subjective. To standardize and make more objective the requirements for checkrides, the FAA eventually introduced the Practical Test Standards. These practical test standards outlined more specific expectations for pilot applicants and gave pilot examiners a rubric with which to evaluate pilot applicants. The test standards began mostly as a maneuvers-based evaluation, making sure the pilot could take off, land, recover from stalls, navigate by means of pilotage and dead reckoning, and others. Today, we still use these same practical test standards, although they've been modified over the years to include advanced navigation and new safety protocols. Yet, the practical test standards remain primarily maneuvers-based: The PTS lists what the applicant should be able to do, the conditions under which each task is to be performed and an acceptable performance standard for each maneuver or task.

The trouble, as accident data suggests, is that mastering a maneuver to a certain level, while it requires effective airspeed and altitude management, is not the most effective indicator of a safe pilot. The Nall report, for example, tells us year after year that improper decision-making and improper planning are common causes of accidents. The 2010 Nall report states that, "After excluding accidents due to mechanical failures or improper maintenance, accidents whose causes have not been determined, and the handful due to circumstances beyond the pilot’s control, all that remain are considered pilot-related. Most pilot-related accidents reflect specific failures of flight planning or decision-making or the characteristic hazards of high-risk phases of flight."

The PTS was created principally to provide objective standards for evaluating and certifying pilots. We have since learned that most of the qualities and abilities that separate safe from unsafe pilots are very difficult to quantify. In an effort to focus attention on these more subjective qualities – knowledge, discipline, risk assessment and management – the flight training community has in recent years created training techniques designed to incorporate these concepts. These techniques would include scenario-based training, FITS (FAA-Industry Training Standards), and training focused on technically advanced airplanes. Most thoughtful flight instructors already make every attempt to include risk management in the training regimen. The question remains as to how to evaluate these principles, which are really processes of thought, mental and emotional approaches to flight, in the course of a practical test. In recent years, these concepts have made their way into the existing PTS as front matter called "special emphasis areas," but only now, with the FAA's new Airmen Certification Standards (ACS), has there been a serious attempt to integrate these concepts into the specific objective tasks of the PTS.

But what exactly does this mean? Will it accomplish anything productive or valuable to flight training? The most prevalent change you'll see will be in the task list included. What we know currently as the PTS will be incorporated into the ACS, and the task list items, which were fairly brief, will be expanded to include many more specifics. For example, the current version of the Private Pilot PTS has 10 objectives listed for the Soft Field Approach and Landing task. It looks like this:

The new ACS project will have much more specific tasks in four different areas under the Soft Field Approach and Landing task: Objective, knowledge, skills and risk management. From a reading of the draft of the proposed ACS, this will be true for every task in the ACS. Knowledge and risk management are now made more specific by referring, in the standards for each task, to ways in which these somewhat amorphous and slippery concepts apply specifically to that task. It goes into much more detail about what could be evaluated on the check ride, including an entire section on risk items. It will look like this:

Along with the added emphasis on risk management, some students and instructors may be relieved to know that there will also be a change in the FAA's written knowledge tests. The FAA admits that over the years, parts of the knowledge test question bank have become redundant and outdated. With the new ACS, we should see the demise of old questions about NDBs and and irrelevant and poorly worded questions that include multiple calculations and interpolations. That's good news. As for when the new ACS will take effect, the FAA is proposing a rolling introduction beginning in late 2015 with the Private Pilot, the Commercial Pilot ACS and the Instrument Rating ACS and revision of the corresponding knowledge tests and codes. A Frequently Asked Questions document recently posted by the FAA admits that this schedule may slip into 2016, but advises that examiners, now called evaluators, may already use the draft ACS as guidance for the administration of checkrides.

The FAA wants us to look at the new ACS as an improved upon PTS, a long-overdue plan to make the qualities now known to correlate with safety an integral part of flight training and testing. They define it as "a holistic, integrated presentation of specific knowledge, skills, and risk management elements and performance metrics for each Area of Operation and Task." I'm not entirely convinced that this will be anything new or unusual for those of us training pilots. The performance standards will remain the same, and, according to the FAA, the ACS will not change the check ride. Instructors should already be teaching risk management and decision-making at every step of flight training, although the specific bullet points now included under each task may suggest specific ways in which these qualities pertain to every task we perform as pilots. In the end, the ACS is a change that is past due and should align the evaluation of pilots with the principles we should have long since been teaching.

May A Pilot Continue to Act as Pilot in Command Despite a Lapse in § 61.58 Currency?

If you fly an aircraft that is type certificated for more than one required pilot flight crewmember or is turbojet-powered, you know that 14 C.F.R. § 61.58(a) requires that you have regular proficiency checks. Specifically, within the preceding 12 calendar months you need to have completed a proficiency check in an aircraft that is type certificated for more than one required pilot flight crewmember or is turbojet-powered, and within the preceding 24 calendar months you must have completed a proficiency check in the particular type of aircraft in which you will serve as PIC that is type certificated for more than one required pilot flight crewmember or is turbojet-powered.

So, when do you actually need to complete each proficiency check? Well, if you complete the proficiency check in the calendar month before or the calendar month after the month it is due, Section 61.58(i) states that "the pilot is considered to have taken it in the month in which it was due for the purpose of computing when the next pilot-in-command proficiency check is due." This means you have a "grace month" within which to complete the 12- and 24-month proficiency check requirements. But, are you permitted to continue to act as a PIC in an aircraft that is type certificated for more than one required pilot flight crewmember or is turbojet-powered during the grace month after the proficiency check has lapsed?

The answer is "Yes." According to the FAA in a recent Legal Interpretation, a pilot may continue to act as pilot in command of an aircraft that is type certificated for more than one required pilot flight crewmember or is turbojet-powered during the month after a Section 61.58 proficiency check is due. But keep in mind that when a pilot completes a Section 61.58 proficiency check during the grace month (either before or after the proficiency check is due) he or she is considered to have completed the proficiency check during the month it was due for the purpose of calculating the due date for the next Section 61.58 proficiency check.

Also, pilots and operators shouldn't use the grace month as a way to regularly extend a 12-month proficiency check to a 13-month proficiency check. However, this interpretation is certainly helpful to those pilots who are unable to complete their recurrent training/proficiency check requirements in the month in which they are due.

Equal Access To Justice Act: When Are Fees "Incurred"?

As you may recall from previous articles, if the FAA pursues an enforcement or civil penalty action and then loses, the Equal Access to Justice Act (“EAJA”) allows a certificate holder or target of the civil penalty action to seek reimbursement from the FAA for the attorney’s fees and expenses incurred by the certificate holder or target of the civil penalty action to defend against the claims asserted by the FAA. The EAJA is found at 5 U.S.C. 504 and is implemented in 49 CFR 826.

According to 49 CFR 826.1,

The Equal Access to Justice Act, 5 U.S.C. 504 (the Act), provides for the award of attorney fees and other expenses to eligible individuals and entities who are parties to certain administrative proceedings (adversary adjudications) before the National Transportation Safety Board (Board). An eligible party may receive an award when it prevails over the Federal Aviation Administration (FAA), unless the Government agency's position in the proceeding was substantially justified or special circumstances make an award unjust.

In order to award EAJA fees to a certificate holder or target of a civil penalty action who is requesting reimbursement of fees (the “Applicant”), one of the issues an administrative law judge ("ALJ") must decide is whether the fees were actually “incurred” by the Applicant. In a situation where the Applicant has paid an attorney for representation throughout the enforcement process out of the Applicant’s own pocket, this is easy. Conversely, when an Applicant’s employer or union pays the fees then the Applicant did not incur the fees for purposes of EAJA. However, if the employer advances the fees and the Applicant is obligated to repay those fees regardless of the outcome of the action, then the Applicant would also be considered to have incurred the fees.

Also, it may be possible for an Applicant to incur fees by retaining an attorney on a contingent fee basis under which the attorney would only receive payment in the event of an EAJA recovery. However, this type of arrangement must be documented at the time the attorney is retained in order for it to qualify under EAJA. In general, documentation of the payment of, or obligation for, the fees is critical to recovery under EAJA.

But what if an applicant doesn't have documentation to show an agreement to pay or be responsible for payment to the attorney who represented the Applicant before the Board? Well, a recent decision by the United States Court of Appeals in the District of Columbia addressed this very issue.

In Roberts v. National Transportation Safety Board the Court was asked to review a decision by the Board affirming an ALJ's rejection of Mr. Roberts' EAJA application on the basis that Mr. Roberts had not actually "incurred" attorney's fees. The ALJ found that Mr. Roberts' attorney also represented his employer and, in the absence of any written agreement between Mr. Roberts and either his employer or the attorneys to the contrary, the ALJ concluded that Mr. Roberts' employer had paid the attorneys. As a result, the ALJ held that Mr. Roberts had not personally incurred the attorney's fees as required by EAJA. The Board then affirmed the ALJ's decision, even though it reversed the ALJ's earlier finding that the employer had agreed to pay for Mr. Roberts' attorney's fees.

On appeal to the Court of Appeals, Mr. Roberts argued that the Board's determination that he had not personally incurred the fees was arbitrary and capricious. The Court agreed and found that the Board's refusal to consider that Mr. Roberts may have been obligated to pay attorney's fees under a quantum meruit theory (also called an implied contract theory) was arbitrary and capricious. The Court observed that Alabama law (the state law applicable to any relationship Mr. Roberts had with his attorney) implies a promise to pay compensation for services rendered to another that are knowingly accepted even in the absence of a valid written contract. The Court went on to observe that the Board's conclusion that Mr. Roberts had not proven that he was responsible for attorney's fees because the attorney's invoices didn't clearly say so defied logic. And the Court determined the Board's reliance upon the absence of an express contract as dispositive was in error.

However, although the Court held that Mr. Roberts had incurred attorney's fees, it noted that all of the fees and expenses claimed by Mr. Roberts may not necessarily be eligible for reimbursement. The Court remanded the case back to the NTSB for it to consider which submitted fees and expenses were supported by sufficient documentation and whether any reduction in award is appropriate.

Conclusion

This decision will certainly help anyone applying for an EAJA award after having to defend themselves against an unjustified certificate or civil penalty action. However, properly documenting both the obligation to pay fees, as well as the amount of the fees is still recommended. But at least the Court's decision provides the opportunity for an applicant to claim fees have been incurred even in the absence of a written agreement. And that's a "win" in my book.

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).

 

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