All posts tagged 'faa' - Page 7

Can You Barter For Aircraft Rental And Expenses? FAA Says "Yes"

As you may know, the FAA defines compensation very broadly. Compensation may include not only the exchange of money, but also the exchange of value. With this expansive view of compensation as a backdrop, the FAA was recently asked whether it was permissible to barter services in exchange for (1) a private pilot's pro-rata share of operating expenses under 14 C.F.R. § 61.113(c) and (2) rental of an aircraft.

In the first scenario presented to the FAA, a private pilot (Pilot A) who is also in the business of aircraft detailing desires to barter aircraft detailing services in exchange for Pilot A's pro-rata share of expenses on common-purpose, recreational flights in an aircraft owned by Pilot B, also a private pilot, and with Pilots A and B as the sole occupants of the aircraft during the flights. The common-purpose for the flights would be the building of pilot time as allowed by applicable regulations.

For purposes of the request, the FAA was asked to assume that the aircraft's type certificate does not require operation by two crewmembers, the flights are operated under 14 C.F.R. Part 91, and during the common-purpose flights one pilot is acting as pilot in command and the other pilot is strictly a passenger and not a required crewmember.

Pilot A would perform aircraft detailing services for Pilot B's aircraft. Pilot A and B would determine the fair market value of the aircraft detailing service and that amount would applied to Pilot A's pro-rata share of the operating expenses of the flights shared by Pilots A and B.

Based upon this first scenario, the FAA answered the following questions:

Question 1: Does Pilot A's bartering of services in exchange for Pilot A's pro-rata share of the operating expenses of a common-purpose flight with Pilot B comply with 14 C.F.R. 61.113(c)?

Answer: Yes, as long as the amount of the bartered services did not exceed Pilot A's pro-rata share of the expenses, otherwise Pilot B would be in violation of § 61.113(c).

Question 2: May Pilots A and B agree upon the fair market value of the aircraft detailing services to be bartered against Pilot A's pro-rata share of the operating expenses for the common-purpose flight?

Answer: Yes, the two parties to the transaction would need to reach an agreement with respect to the fair market value and, although FAA regulations do not require a written record of the agreement, they could certainly make such a record. (I would certainly recommend that the parties have a written agreement executed at the time of the transaction, rather than trying to later come up with documentation to prove the agreement as to fair market value.)

Question 3: May the fair market value of the aircraft detailing services be applied prospectively to Pilot A's pro-rata share of operating expenses for future/successive common-purpose flights with Pilot B?

Answer: Yes.

Question 4: What documentation, if any, would Pilots A and B need to evidence their compliance with 14 C.F.R. § 61.113(c) in this scenario?

Answer: None. The FAA does not require any documentation. (However, having appropriate documentation will definitely help in proving compliance.)

In the second scenario provided to the FAA, a private pilot (Pilot A) who is also in the business of aircraft detailing desires to barter aircraft detailing services in exchange for rental of an aircraft owned by Pilot B for personal flights operated under 14 C.F.R. Part 91 and in which Pilot A would be the sole occupant. The FAA was asked to assume for purposes of the request that the aircraft being rented is a type certificated aircraft with a standard airworthiness certificate and is not subject to the Truth-in-Leasing requirements of 14 C.F.R. § 91.23.

Question 5: Does Pilot A's bartering of services in exchange for rental of Pilot B's aircraft violate any regulations administered by the Federal Aviation Administration?

Answer: It does not violate any FAA regulations.

Question 6: May Pilot A and B agree upon the fair market value of the aircraft detailing services to be bartered against Pilot A's rental of Pilot B's aircraft?

Answer: Yes, as long as the flight is not for compensation or hire.

Question 7: May the fair market value of the bartered aircraft detailing services be applied prospectively to Pilot A's future/successive rental of Pilot B's aircraft?

Answer: Yes, as long as the flight is not for compensation or hire.

Question 8: What documentation, if any, would Pilots A and B need to evidence the barter arrangement under this scenario in order to comply with any applicable regulations?

Answer: FAA regulations do not require documentation.

Although the FAA's answers were short and sweet, without any in-depth analysis of the regulations' application to the factual scenarios, at least the FAA has provided some guidance regarding the viability of barter transactions in connection with aircraft use, rental and expenses. As with most situations when dealing with the FAA, having a paper trail to document your compliance is a good idea. Thus, if you are going to enter into a barter arrangement, make sure you have something in writing that not only explains the barter transaction but also substantiates the fair market values upon which the barter transaction is based.

Thanks to the FAA's guidance, aircraft owners and pilots now have another option for aircraft use and rental. And that's a good thing.

AEA to Award $1,000 Toward an ADS-B Upgrade to Five Aircraft Owners at AirVenture

LEE'S SUMMIT, MISSOURI, July 21, 2014 - To help incentivize owners of general aviation aircraft to meet the Federal Aviation Administration's ADS-B Out mandate, the Aircraft Electronics Association will randomly award five aircraft owners with $1,000 toward an ADS-B compliant upgrade.

"The FAA recently made it clear to Congress that the Jan. 1, 2020, deadline for ADS-B Out compliance is not going to change," said Paula Derks, AEA president. "The avionics repair shops have less than six years to equip approximately 186,000 operational aircraft, which means the industry must upgrade more than 130 aircraft per workday between now and the deadline. Currently, the industry is barely upgrading 100 aircraft a month, or around five per workday. Obviously, there's a lot of catching up to do.

"While the avionics repair shops have the capacity to meet demand at the present time, this will not be the case beyond 2016 unless the installation pace picks up dramatically. Aircraft owners who wait to equip will face scheduling pressure and higher installation costs as we get closer to the deadline. By awarding $1,000 to five different aircraft owners to help them become compliant sooner rather than later, the AEA hopes to send a message to owners of general aviation aircraft that the time to act and upgrade is now."

Aircraft owners may enter to win one of the five $1,000 giveaways at the AEA's booth (No. 2035/36 in hangar B) during the Experimental Aircraft Association's AirVenture in Oshkosh, Wisconsin. The AEA will announce one winner each day from July 29 through Aug. 2 through its social media outlets on Facebook, Twitter and LinkedIn, and from its booth in Oshkosh.

Aircraft owners must be at least 18 years old to register to win. Each of the five winners must use an AEA-member avionics shop to complete the installation, and the installation must be scheduled by Aug. 1, 2015. One entry gives aircraft owners a chance to win each of the five daily drawings.

About the Aircraft Electronics Association - Founded in 1957, the Aircraft Electronics Association represents nearly 1,300 member companies in 43 countries, including government-certified international repair stations specializing in maintenance, repair and installation of avionics and electronic systems in general aviation aircraft. The AEA membership also includes manufacturers of avionics equipment, instrument repair facilities, instrument manufacturers, airframe manufacturers, test equipment manufacturers, major distributors, engineers and educational institutions. For more information, contact Geoff Hill, AEA director of communications, at 816-347-8400 or [email protected]

Unknown Or Inadvertent Ingestion: An Unconvincing Affirmative Defense To A Positive Drug Test Result

If an airman tests positive for drug metabolites on a drug test but he or she didn't take the drugs, what can the airman do? Well, arguing that he or she somehow unknowingly or inadvertently ingested the drugs isn't going to save the day. A recent decision by the National Transportation Safety Board ("NTSB") rejected an airman's "unknowing ingestion" affirmative defense in that very situation.

In Administrator v. Hermance the airman submitted to a random drug test which indicated that the airman tested positive for cocaine metabolites. As in almost every case, the FAA revoked all of the airman's certificates based upon the positive drug test. The airman then appealed the revocation to the NTSB.

Prior to a hearing, the FAA moved for summary judgment arguing that the positive drug test and the airman's admission that the test was positive presented a prima facie case that the airman had violated the applicable drug testing and medical qualification regulations. The ALJ agreed that the FAA had proven its case, but the ALJ ordered a hearing to allow the airman to present evidence regarding his affirmative defenses, one of which was that he had unknowingly ingested the cocaine.

At the hearing before the NTSB administrative law judge ("ALJ"), the airman was adamant that he did not do drugs and had not ingested cocaine. He even paid several visits to his physician who was unable to determine how the cocaine metabolites ended up in the airman's urine. The airman's wife and several other witnesses also testified that the airman did not do drugs.

At the end of the hearing, the ALJ ruled that the airman's claim that he unknowingly ingested the cocaine was not a "reasonable medical explanation" for a positive drug test under DOT regulations. The ALJ determined that neither the airman nor any of his witnesses offered an explanation or reasonable theory for how the airman's tested urine specimen contained cocaine metabolites. In the absence of the necessary proof, the ALJ found the airman failed to satisfy his burden of proving his affirmative defense of unknown ingestion. As a result, the ALF affirmed the FAA's revocation order.

On appeal to the full Board, the airman again argued that he had proven his affirmative defense of unknown ingestion which explained and excused the positive drug test result. The Board initially observed that the airman had the burden of proving not only that unknowing ingestion was a legally justifiable excuse but also that he factually proved that affirmative defense.

The Board then cited 49 C.F.R. § 40.151(d), which specifically and categorically rejects the defense of unknown ingestion:

For example, an employee may tell [medical review officers (MROs)] that someone slipped amphetamines into her drink at a party [or] that she unknowingly ingested a marijuana brownie....MROs are unlikely to be able to verify the facts of such passive or unknowing ingestion stories. Even if true, such stories do not present a legitimate medical explanation. Consequently, [MROs] must not declare a test as negative based on an explanation of this kind.

The Board also observed that its precedent has consistently rejected unknown ingestion as a legitimate medical explanation for a positive drug test result.

However, even though the unknown ingestion affirmative defense was previously rejected, the Board concluded that the ALJ's granting a hearing to the airman regarding the affirmative defense was appropriate because it allowed the airman a full opportunity to offer evidence to support a legitimate medical explanation, if one existed. Unfortunately for the airman, the Board affirmed the ALJ's determination that the airman's evidence did not suffice to establish that he never ingested cocaine or that a legitimate medical explanation existed for the presence of the cocaine metabolites in his urine.

Thus, the affirmative defense of "unknown ingestion" or "inadvertent ingestion" will not, without more, save an airman from a positive drug test result. Fortunately, the airman should have an opportunity to prove some other legitimate medical explanation for the positive result. However, the airman will have the burden of proof; a burden that, unfortunately, is often not easy to meet. But at least it is a chance.

Do You Have To Accept A Clearance If It Will Result In You Violating The Regulations?

This situation was presented to the FAA's Office of Chief Counsel in a request for a legal interpretation. Specifically, an individual requested an interpretation of the phrase "necessary for takeoff or landing" as used in 14 C.F.R. § 135.183(b). Apparently the individual operated single-engine Cessna Caravan aircraft in Part 135 operations between the Bahamas and Fort Lauderdale, Florida, along the FAA's published DEKAL TWO arrival route. When the flight reached the DEKAL fix, 30 miles from shore, air traffic control (ATC) usually instructed the flight to descend to 4,000 feet to separate turboprop traffic from jet traffic.

In response, the Office of Chief Counsel issued a Legal Interpretation which initially observed that Section 135.183 prohibits a single engine aircraft, when carrying passengers, from operating over water unless the aircraft is within power-off gliding distance from land, or when it is necessary for take off or landing. It also noted that to determine whether an altitude is "necessary for takeoff or landing" you have to look at "whether that portion of the flight is necessary to permit the pilot to transition between the surface and the en route or pattern altitude in connection with a takeoff or landing."

Applying the facts it was provided, the FAA explained that descent to 4,000 feet at the DEKAL fix would not be necessary for landing because the altitude was assigned for traffic separation, and the Caravan's performance would not require it to be at the assigned altitude for approach into the destination airport. In response to the individual's concern regarding compliance with 14 C.F.R. § 91.123 (requiring compliance with ATC clearances and instructions), the Interpretation cited Chapter 4-4-1(a) of the Aeronautical Information Manual for the proposition that "an ATC clearance 'is not authorization for a pilot to deviate from any rule, regulation, or minimum altitude.'"

It then concluded that, rather than accepting a clearance that would put the Caravan beyond power-off glide distance from shore, and violate Section 135.183, "the operator would be required to select another route or request a different clearance in order to maintain an altitude that keeps the aircraft within power off glide distance from shore."

This Interpretation is a good reminder that the pilot is ultimately responsible for compliance with the regulations applicable to his or her flight. Yes, you need to comply with ATC instructions to avoid violating Section 91.123. However, if ATC's instructions would result in violation(s) of the regulation(s), the pilot has a duty to reject those instructions. Not an easy decision, I know. Hopefully you won't find yourself in that position.

Business Aviation & NextGen, Part I: Updates and Mandates


Image Courtesy: FAA

By now, everyone on the general aviation industry is tired of hearing about NextGen and its amazingness, right? I mean, it all sounds great - until you realize that in just a few short years, that new avionics upgrade you got a few years ago could be almost worthless.

While it will be beneficial to have ADS-B, weather mapping and CPDLC, these fancy upgrades don't come cheap. And it's not just the high dollar that destroys people's optimism. There are other decisions involved, too - like whether to upgrade now, wait until the equipment is required or just start over with a brand new jet. Add to this an overabundance of confusing FAA rules, the need for STCs, waiting for paperwork to go through and aircraft downtime, and it's a pretty unappealing process for the typical Citation or Gulfstream owner.

But NextGen has its benefits, too, in the form of safety and efficiency, and maybe it's time for everyone to get on board. But what exactly will you need? When should you equip your aircraft? How much will it cost? Should you upgrade or sell?

In this two-part series, we'll look first at the requirements of NextGen, the equipment upgrades in question, what is mandated and what will be mandated soon. In part two, we'll examine insider opinions and go over some advantages and disadvantages of upgrading avionics versus replacing your aircraft.

If you're not familiar with The FAA's NextGen program and all that it entails, it's time to get cozy with it. The program is a complex one with many different facets within it, including a series of new technologies that will allegedly make the nation's airspace more safe and efficient. A few of these new systems are especially important to aircraft owners because of the high cost and complex avionics involved. We'll go over two of the more significant systems below:

ADS-B:
ADS-B, or Automatic Dependent Surveillance-Broadcast, is the most accurate system to date for determining aircraft position. Because both ATC and other pilots in the area will be able to determine your aircraft's precise position while flying, ADS-B will allow for reduced separation minimums and a safer flight environment.

According to an FAA mandate, all aircraft owners that intend to fly in class A, B or C airspace must be equipped with ADS-B Out capabilities by January 1st, 2020. This sounds easy enough, but the exact installation requirements vary greatly from aircraft to aircraft, depending on the current avionics package and the type of flying accomplished.

At a minimum, aircraft will need to be equipped with a WAAS-enabled GPS receiver and (for aircraft flying above 18,000 feet) a 1090 MHz ES link with a Mode S Transponder.

ATN-B1 (Datacomm) and FANS-1/A:
ATN-B1 has many names. It's known by the FAA as Datacomm and it's known still to others as Link2000+, PMCPDLC, or CPDLC. It uses datalink technology to send data communications from air traffic controllers to the cockpit of the aircraft via a text message, and vice versa. The FAA's Datacomm program intends to improve communication by reducing voice communication errors that come with fuzzy or congested radio frequencies and improving the accuracy of transmissions. Currently, there is no FAA mandate for the use of Datacomm in the United States, but ATN-B1 will be mandated by EASA in February 2015. The program is expected to be implemented in the U.S. in 2016 and expanded on until 2024.

FANS-1/A is a datalink system that incorporates CPDLC with a surveillance feature called ADS-C. The ADS-C feature provides position reports over areas not served by ground systems, such as the Atlantic Ocean. FANS-1/A is mandated by the North Atlantic Track System (NATS) for the two center tracks over the Atlantic, and this mandate is expected to expand.

Whether an operator decides to equip with ATN-B1 or FANS-1/A will largely be determined by mandates, cost and the aircraft's current equipment status. But one thing is for sure: These datalink upgrades are something operators should prepare for in one way or another.

Stay tuned more information about how business aviation is preparing for NextGen, including why some business jet owners are choosing to upgrade now!

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