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More Safety Pilot Questions Answered

by Greg Reigel 30. April 2015 15:00
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This month I thought I would answer some of the questions I routinely hear in connection with operations involving safety pilots, other than questions relating to how to log safety pilot time which was discussed in my January article Logging Safety Pilot Time.


Does a safety pilot need a current medical certificate? Yes. Section 91.109(b) requires a safety pilot for operations in simulated instrument conditions. And since 14 C.F.R. § 61.3(c) requires a person to hold a valid medical certificate in order to act in any capacity as a required pilot flight crewmember, a safety pilot must therefore hold a current, appropriate airman medical certificate.


Does a safety pilot need an instrument rating? No, an airman acting as a safety pilot under Section 91.109(b) does not need an instrument rating as long as the flight is being conducted in visual meteorological conditions. Additionally, an airman who possesses an instrument rating does not need to be instrument current under 14 C.F.R. § 61.57(c)(1) in order to act as a safety pilot because that section only applies to an airman acting as pilot in command, not an airman acting as a safety pilot.


Does a safety pilot need a high-performance endorsement prior to acting as safety pilot in a high-performance aircraft? Currently the regulations do not require a safety pilot to have a high-performance endorsement when acting as a safety pilot in a high-performance aircraft. However, the FAA does encourage those airman who act as safety pilots to be thoroughly familiar and current in the aircraft that is used. Presumably this would include operation of the components that make the aircraft a high-performance aircraft.


Does a safety pilot need a current flight review? No. The requirement in 14 C.F.R. §61.56(c) that a flight review be accomplished within the preceding 24 months only applies to airmen who act as pilot in command. As along as the safety pilot is not acting as pilot in command for any portion of the flight then he or she does not need a current flight review.


May a safety pilot log cross country time for a flight? A pilot only acts as a safety pilot during the time in which the other pilot is engaged in simulated instrument flight (e.g. wearing a view limiting device). Since simulated instrument flight does not include take-off and landing, a safety pilot is not a required crewmember during that portion of the flight. As a result, the safety pilot is not acting as a safety pilot for the entire flight and, thus, may not log cross country time for any portion of the flight.


Is a safety pilot a "second in command" for the flight? It is not uncommon for airmen to refer to their safety pilot as being "second in command." However, unless the aircraft being used is type certificated for operation by more than one pilot or the operation conducted by the pilots requires a designated second in command (e.g. an operation conducted under 14 C.F.R. 135.101 which requires a second in command for IFR operations), the designation of a safety pilot as an acting second in command crewmember is not accurate.


Under the regulations, an airman may "log" SIC time for the portion of the flight during which he or she was "acting" or "serving" as safety pilot because the safety pilot was a required flight crewmember for that portion of the flight under 14 C.F.R. § 91.109(b). In that situation, assuming neither the aircraft nor the operation requires two pilots, the airman is only "acting" or "serving" as a safety pilot, not as second in command for the flight.


Is a safety pilot required to share expenses with a private pilot for a simulated instrument flight? 14 C.F.R. § 61.113(c) provides that a private pilot may not pay less than his or her pro-rata share of the expenses of a flight with passengers. However, under Section 91.109(b), both the private pilot and the safety pilot are required crewmembers for the simulated instrument flight and neither is considered a passenger for the flight. As a result, assuming the only individuals on board the aircraft for the simulated instrument flight are the private pilot and the safety pilot, then Section 61.113(c)'s pro-rata expense sharing requirement does not apply to that flight.

As always, fly safe and fly smart.

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aircraft instruments, IFR, IMC, safety | Greg Reigel

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

by Greg Reigel 1. April 2015 17:14
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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.

Logging Safety Pilot Time

by Greg Reigel 5. January 2015 17:43
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In order to operate an aircraft in simulated instrument conditions, certain requirements must be met. 14 C.F.R. § 91.109(b) allows this type of operation in an aircraft equipped with fully functioning dual controls as long as "(1) the other control seat is occupied by a safety pilot who possesses at least a private pilot certificate with category and class ratings appropriate to the aircraft being flown; and (2) the safety pilot has adequate vision forward and to each side of the aircraft, or a competent observer in the aircraft adequately supplements the vision of the safety pilot." Unfortunately, Section 91.109(b) doesn't address the logging of flight time in connection with operations involving a safety pilot.

In order to understand how a pilot may "log" his or her flight time, it is important to keep in mind that "acting" or "serving" as a pilot in command ("PIC") or second in command ("SIC") during a flight is different than "logging time" for that flight. 14 C.F.R. 61.51(e) states that a pilot may log PIC time when (i) the pilot is the sole manipulator of the controls of an aircraft for which the pilot is rated; (ii) when the pilot is the sole occupant in the aircraft; or (iii) when the pilot acts as pilot in command of an aircraft for which more than one pilot is required under the type certification of the aircraft or the regulations under which the flight is conducted. Section 61.51(f) states that a pilot may log SIC time only for that flight time during which that person: (1) Is qualified in accordance with the second-in-command requirements of § 61.55 of this part, and occupies a crewmember station in an aircraft that requires more than one pilot by the aircraft's type certificate; or (2) Holds the appropriate category, class, and instrument rating (if an instrument rating is required for the flight) for the aircraft being flown, and more than one pilot is required under the type certification of the aircraft or the regulations under which the flight is being conducted.

Under these regulations, it is not possible for two pilots to "act" or "serve" as PIC simultaneously during a flight. However, it is possible for two pilots to log PIC flight time simultaneously. PIC flight time may be logged by both the PIC responsible for the operation and safety of the aircraft during flight time in accordance with 14 C.F.R. § 1.1 (e.g. the pilot "acting" or "serving" as PIC), and by the pilot who acts as the sole manipulator of the controls of the aircraft for which the pilot is rated.

So, in a typical simulated instrument flight, the pilot under the hood may log PIC time for that time in which he or she is the sole manipulator of the controls of the aircraft, provided that he or she is rated for that aircraft. The safety pilot may concurrently log as SIC time that time during which he or she is "acting" or "serving" as safety pilot (e.g. when the other pilot is actually under the hood) because the safety pilot is a required crewmember for operations under Section 91.109(b).

However, the two pilots may, prior to initiating the flight, agree that the safety pilot will be the PIC responsible for the operation and safety of the aircraft during the flight (e.g. the safety pilot will "act" or "serve" as PIC). In this situation, the safety pilot may log all the flight time as PIC time under Section 61.51(e)(iii), provided he or she is otherwise qualified to "act" or "serve" as a PIC (e.g. having a current flight review, appropriate ratings and endorsements etc.) and the pilot under the hood may log, concurrently, all of the flight time during which he or she is the sole manipulator of the controls as PIC time in accordance with Section 61.51(e)(i).

So you can see, depending upon the circumstances, a safety pilot may be able to both "act" as second in command or pilot in command and "log time" as second in command or pilot in command. In other situations, he or she may only be able to do one or the other. Although it can be tricky, airmen need to make sure they understand the distinction to ensure that they are logging their time accurately and in compliance with the regulations.

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Greg Reigel

Can You Buy Replacement Aircraft Data Plates on the Internet?

by Greg Reigel 2. December 2014 09:44
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The internet can be a wonderful thing. From the convenience of your computer you can buy most things aviation. Whether you are looking for pilot supplies, aviation paraphernalia or even an aircraft, it is quite likely that you can locate, and complete, your purchase via the internet. But, the convenience of buying through the internet doesn't always mean that you are really receiving the item for which you paid, or that you will be able to actually use the item as anticipated. A recent Legal Interpretation issued by the FAA's Office of the Chief Counsel illustrates this point.

This particular Legal Interpretation responded to a request from an individual regarding an advertisement on an internet auction site promoting the sale of "high quality reproduction aircraft identification plates." Specifically, the individual wanted to know how to determine "whether a reproduction plate is 'eligible for installation on a type certificated product.'"

The Interpretation initially notes 14 C.F.R. § 21.8 states that a part which must be approved by the FAA, such as an aircraft data plate, must be approved for production under a parts manufacturing authority (PMA), a type supplemental order (TSO), in conjunction with type certification procedures, or the catchall: "in any other manner approved by the FAA." It goes on to observe that, not surprisingly, when it comes to installation of data plates on aircraft, the FAA usually relies upon the original aircraft manufacturer to install the data plates on its aircraft.

According to the FAA Chief Counsel, the FAA views the aircraft manufacturer's installation of the data plates as a declaration or representation that the aircraft conforms to its type design. If for some reason the aircraft manufacturer refuses to issue or install data plates, the FAA assumes (yes, the Legal Interpretation actually uses the word "assumes") the aircraft does not conform to its type design.

With that background, the Interpretation then addressed several situations in which the aircraft owner may not have original identification plates issued by the aircraft manufacturer. First, if the data plate is lost, stolen or damaged during maintenance operations, the Interpretation states that the aircraft owner should "seek a replacement from the aircraft's original manufacturer." Unfortunately, since product liability exposure is always a concern for manufacturers, they are reluctant to issue a new data plate and expose themselves to additional potential liability for an aircraft whose condition they have been unable or unwilling to verify. As a result, that option is seldom successful.

Next, the Interpretation addressed the situation in which "the aircraft's original manufacturer is no longer in business or is otherwise unable or unwilling to produce a replacement plate for reasons unrelated to the condition of the aircraft. It observed that FAA Advisory Circular 45-2D, Identification and Registration Marking provides a means of compliance. Referencing Section 6(i)(3) of AC 45-2D, the Interpretation states than an owner or operator may only buy data plates from an approved source after "going through the process" of contacting the local Flight Safety Standards District Office (FSDO) or Manufacturing Inspection District Office (MIDO) for assistance and approval in obtaining a replacement. Unfortunately, neither the Interpretation nor AC 45-2D provide any explanation for what this "process" involves or requires from the aircraft owner or operator, nor does it state what the FSDO or MIDO are obligated to do in assisting or providing approval of a replacement data plate. As a result, it is unclear whether this is truly a practical or viable option.

Finally, in addressing the specific request before it, the Interpretation concludes that "[a] reproduction identification plate sold on an online auction website would presumably be produced by neither the manufacturer nor an FAA-approved alternative source (such as a PMA holder for the article), and therefore it could not indicate to the FAA that an aircraft conforms to its type design." And without an approved data plate to "prove" conformity with the type design, the aircraft would be ineligible for a standard airworthiness certificate.

So, the moral of the story: Simply because you can buy replacement data plates on the internet (or anything else for that matter), that doesn't mean you can use them. At least the individual in this case asked the question before, rather than after, spending good money on "reproduction" data plates. But, as with most purchases, some degree of "caveat emptor" is almost always a good thing.

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Greg Reigel | Maintenance

Does Your CFI Have to Look Over Your Shoulder When You Are Maintaining Instrument Currency in a Simulator?

by Greg Reigel 3. November 2014 17:12
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An instrument rating provides both options and opportunities that are not available to a VFR pilot. But in order for an instrument rated pilot to legally exercise the privileges of the instrument rating, he or she must be current. 14 C.F.R. § 61.57(c) lists the tasks that must be accomplished within the six calendar months preceding the month of the IFR flight, and logged under 14 C.F.R. § 61.51 in order for the pilot to be instrument legal for that flight.

But what happens if you are a pilot who lives in an area of the country where the weather, along with personal scheduling issues (since we few of us have the luxury of flying whenever we want, even though we wish we could) make it difficult to complete these tasks? Or maybe you are looking for a way to lower the cost of flying. Is it possible to safely stay instrument current while saving some money?

Well, one way to meet instrument currency requirements is to use a flight simulator, flight training device or aviation training device ("simulator"). In addition to the lower costs and safety benefits a simulator provides to a pilot, one of the specific advantages is that a pilot may use time in a simulator for instrument currency experience.

However, use of a simulator for logging instrument flight time isn't without conditions. First, the simulator must be "approved" by the FAA (a topic for another day, but if you are curious you can review the FAA's Advisory Circular AC 61-136 for more information). Second, and equally important, in order for a pilot to log simulator time and have it count towards instrument currency, 14 C.F.R. § 61.5l(g)(4) requires that "an authorized instructor is present to observe that time and signs the person's logbook or training record to verify the time and the content of the training session."

As all instrument rated pilots should already be aware, this second condition is different than simply performing the necessary instrument approaches and procedures in an actual aircraft. In the aircraft, an instructor's presence is not required. And, unfortunately, some instructors and flight schools believe that if an instructor is not required to be present when a pilot is performing the necessary approaches etc. in an aircraft, then an instructor should not be required to be present when the pilot is performing the same tasks in a simulator. However, that is not the case.

Additionally, keep in mind 14 C.F.R. § 61.57(c)(3) requires that a pilot who accomplishes instrument experience exclusively in a simulator must have performed the instrument tasks and maneuvers listed in that section within two calendar months before the month of the flight.

If you are going to use a simulator for instrument currency, make sure you are familiar with the requirements that apply to your training. When in doubt, review the regulations and associated FAA guidance. If you still have questions, contact your CFI or a knowledgeable aviation attorney.





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