The drug and alcohol testing requirements of 14 C.F.R. Part 120 and 49 C.F.R. Part 40 continue to cause issues for aviation employers. An initial decision in a recent civil penalty action, In the Matter of Regency Air, LLC, highlights two areas of potential confusion and risk faced by an aviation employer.
In Regency the FAA assessed a civil penalty of $17,400 against the employer for alleged violations of drug and alcohol testing regulations in connection with its hiring and use of mechanics. As you may know, aircraft maintenance is a “safety-sensitive function” that may only be performed by an employee who is included in the employer’s drug and alcohol testing program. Regency appealed the FAA’s order and a hearing was held before a Department of Transportation Administrative Law Judge (“ALJ”) which highlighted several drug and alcohol testing “gotchas.”
In one instance, Regency argued that the mechanic performed his work as a favor to Regency and since Regency did not compensate the mechanic for the work, the mechanic was thus not an employee subject to drug and alcohol testing. However, the ALJ rejected that defense stating that an "employee is an individual who is hired, either directly or by contract, to perform a safety-sensitive function for an employer”, and an individual is “hired” for a safety-sensitive function when he or she is retained “as a paid employee, as a volunteer, or through barter or other form of compensation.” Thus, even though the mechanic was a volunteer working without compensation, he was still considered an employee when he was performing safety-sensitive functions on behalf of Regency.
Another issue in the case arose from a mechanic’s employment by two separate employers. Although the mechanic was included in the first employer’s drug and alcohol testing program, Regency had not added the mechanic to its program. In analyzing the issue, the ALJ initially observed that “an employer may use a contract employee without including the contract employee in its own drug and alcohol testing program if: (1) the contract employee is subject to testing under the contractor’s drug and alcohol testing program, and (2) the work is performed on behalf of that contractor. The ALJ then determined that the mechanic performed the work in question it was performed on behalf of the first employer as a contractor for Regency, and as a result, the mechanic did not need to be included in Regency’s drug and alcohol testing program.
Drug and alcohol testing regulations can be tricky and complicated. However, misunderstandings and/or non-compliance with the regulations are serious and potentially very expensive. If you have questions about the regulations or whether you are complying with the regulations please contact me and I will be happy to help or any professional aviation law attorney, but don't wait until it is too late.
Shackelford, Bowen, McKinley & Norton, LLP
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Many companies organized as corporations or limited liability companies routinely use a registered agent in states where the company does business. This is especially true when a company is set up under the laws of other states, such as Delaware. And a company's use of a registered agent and the agent's address is certainly acceptable in many business contexts. However, the FAA recently issued a Legal Interpretation rejecting this practice when an applicant submits an FAA Form 8050-1 Application for Aircaft Registration.
The FAA gave two reasons why this practice is unacceptable: (1) the registered agent’s address is not the mailing of the applicant; and (2) the registered agent’s address is not the physical address of the applicant. The FAA stated "if the applicant’s physical address is not listed on the Form 8050-1, it is our opinion that the Application for Registration is not completed in accordance with 14 C.F.R. §47.31(b)(1)." Additionally, §47.45 requires that an applicant/aircraft owner provide a physical address/location if different from a new mailing address.
Although a registered agent is permitted to sign an application for aircraft registration on behalf of the applicant/aircraft owner, the applicant must comply with §47.13 (the agent must sign as agent/attorney-in-fact and include a power of attorney signed by the applicant/aircraft owner). And even then the aircraft owner's address must be used on the application (because the application asks for the owner's address, not the address of the owner's agent).
If the FAA determines that a registered agent's address has been used, the FAA will reject the application. This will result in delays in getting the aircraft's registration transferred to the applicant/aircraft owner and in obtaining the hard-card registration certificate.
If you buy insurance to cover the aircraft you own or fly, you want to make sure the policy covers you and your aircraft if you ever have a problem. It is important to understand that your insurance policy is a contract between you and your insurer. That contract has terms and conditions that spell out the rights and responsibilities of both you the aircraft owner and/or pilot and the insurer.
As you may be aware, if an aircraft owner and/or pilot does not comply with the requirements of the insurance contract, the insurer can deny coverage. This can sometimes lead to arguments between the insurance company and the insured aircraft owner or pilot.
This was the situation in one recent case in which the insurance company denied coverage to an aircraft owner whose aircraft was destroyed during an emergency landing. In Hund v. Nat'l Union Fire Ins. Co. of Pittsburgh (D. Kan., 2019), the aircraft owner was flying his aircraft along with another pilot. During the flight the aircraft’s engine experienced a loss of power and the other pilot—who was piloting the plane at the time—told the aircraft owner "your airplane," at which point the aircraft owner assumed the role of pilot in command and attempted to restart the engine. Unfortunately, the aircraft owner was unable to restart the engine and was forced to perform the emergency landing that resulted in the destruction of the aircraft. After the accident, the aircraft owner submitted a claim to his insurer for the value of his aircraft.
In determining whether to pay the claim, the insurer looked to the insurance policy which addressed coverage for both the aircraft owner as a named insured, and for other pilots operating the aircraft. The policy conditioned coverage on compliance with the policy's “Pilots Endorsement” which required, unsurprisingly, that the pilot in command have a valid FAA pilot certificate, a current and valid FAA medical certificate, if required, and a current and valid flight review.
Unfortunately, neither the aircraft owner nor the other pilot satisfied these conditions: The aircraft owner possessed a current flight review, but not a current medical certificate; the other pilot did not have a current flight review. Although these facts were undisputed, the aircraft owner argued that 14 C.F.R. § 91.3(b) suspended the policy requirements during an in-flight emergency, which he and the other pilot faced during the emergency landing.
14 C.F.R. § 91.3(b) provides that "[i]n an in-flight emergency requiring immediate action, the pilot in command may deviate from any rule of this part to the extent required to meet that emergency." Specifically, the aircraft owner argued that § 91.3(b)'s emergency rule was in effect when he assumed control from the other pilot, and the emergency rules "suspended all other rules" except to do what is necessary to respond to the emergency. The insurer didn’t agree, and neither did the Court when the aircraft owner sued his insurer for denying his claim.
The Court initially observed that Section 91.3(b) allows a pilot in command to "deviate from any rule of this part to the extent required to meet that emergency." It then concluded that Section 91.3(b) applied only to the rules in Part 91, and not the regulations governing pilot qualifications in 14 C.F.R. Part 61.
Makes sense to me. Certainly, the aircraft owner’s argument was creative. But I agree that the plain language of the insurance policy and the regulations are inconsistent with that argument.
The moral of the story? If you are going to act as pilot in command, make sure you satisfy both the applicable regulations, as well as the requirements of any insurance policy covering the aircraft you are flying.
When the FAA assesses a civil penalty for regulatory violations, it is required to take into account both aggravating and mitigating circumstances when it calculates the penalty. Typically the FAA focuses on aggravating circumstances to support assessment of a higher civil penalty. On the other hand, respondents argue that mitigating circumstances are present that justify a lower civil penalty. But if the case ends up going to hearing, it then becomes the administrative law judge's ("ALJ") responsibility to decide (1) whether any aggravating or mitigating circumstances are present, and (2) how/whether those circumstances may impact the civil penalty assessed by the FAA.
As an initial matter, the FAA has the burden of justifying the amount of the civil penalty. The ALJ must then look at the totality of the circumstances surrounding the violation to determine whether the civil penalty is sufficient to serve as a deterrent to both the respondent and the industry as a whole. As guidance, the ALJ may consider the following factors the FAA is supposed to consider per FAA Order 2150.3C FAA Compliance and Enforcement Program:
The nature of the violation;
Whether the violation was inadvertent or not deliberate. This is typically a mitigating factor, and the absence of inadvertence isn't automatically an aggravating factor;
If the respondent is a certificate holder, the certificate holder's level of experience;
The attitude or "compliance disposition" of the respondent;
The degree of hazard posed by the violation;
Any action taken by an employer or other authority;
The respondent's use of a certificate;
The respondent's violation history, if any. This is only an aggravating factor. A violation-free history is expected and is not a mitigating factor;
The respondent's financial ability to absorb a sanction;
Consistency of sanction;
Whether the respondent reported the violation voluntarily; and
What, if any, corrective action the respondent may have taken as a result of the violation.
If you are facing a proposed civil penalty or appealing an assessed civil penalty, you should definitely determine whether any of the circumstances of your situation support any of these mitigating factors and then argue those facts to the FAA or ALJ to try and reduce the civil penalty. You can find read a good example of how this works in a recent case - In re Star Helicopters.
On the other hand, if any of your circumstances could be characterized as aggravating factors, you will also want to identify those facts, because you know the FAA will. You can then determine how best to argue against and minimize the impact those aggravating circumstances may have on the civil penalty.
Pilots and aircraft operators frequently misunderstand the FAA’s policy regarding “compensation” in the context of the Federal Aviation Regulations (FARs). And this concept appears frequently in the FARs.
For example, under 14 C.F.R. 61.113(a), a private pilot may not carry persons or property for compensation or hire, or act as pilot in command for compensation or hire. Additionally, if a flight or operation is conducted for compensation or hire, that flight or operation may be subject to operational requirements and/or limitations under 14 C.F.R. Parts 91, 135 or 121. Such a flight or operation may also have additional medical certification prohibitions or requirements.
So, what then is “compensation” according to the FAA?
The FAA’s longstanding policy and perspective views “compensation” very broadly. Compensation isn’t just the exchange of cash. Rather, it can be receipt of anything of value that is conditioned upon or in exchange for operation of the aircraft. And the exchange of value does not require a profit or profit motive. A beneficial economic relationship will qualify as compensation.
According to the FAA, compensation may include, but is not limited to:
Reimbursement of expenses (e.g. fuel, oil, transportation, airport expenditures, aircraft rental fees, lodging, costs of ownership etc.);
A free meal;
Logging of flight time when the pilot does not have to pay for the costs of operating the aircraft;
Salary or wages; and
Goodwill in the form of expected future economic benefit.
While some of these items can readily be understood to be compensation, the FAA determines whether an operator is receiving something of value in exchange for operating an aircraft on a case-by-case basis and its decision will depend greatly on the purpose and objective of the flight or operation.
So, pilots and operators need to analyze their flights and operations to determine whether they are, in fact, receiving compensation for those flights and operations and, if so, what impact that compensation may have on whether such flights and operations comply with the regulations. Failure to comply could subject the pilots and/or operator to legal enforcement action that could result in suspension or revocation of airman certificates or a civil penalty.