Flying Aviation Articles

Arguing Aggravating And Mitigating Circumstances In Civil Penalty Cases

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.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;

  • Decisional law;

  • 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.

Your Airplane Emergency Kit

One of the most important things for a pilot to be is PREPARED. No matter what circumstances arise during a flight, a pilot has to be ready to respond quickly and efficiently. A big part of being prepared is having the tools that you need with you at all times. In this article, I would like to look at what items every pilot should keep in an emergency kit in their aircraft. Depending on the purpose of your flight, a more robust emergency kit may be required (for example, flying in the mountains or in freezing climates) however, most fair weather flying only requires a few essentials to cover emergencies that may come up.

There are several airplane emergency kits available online, but there are some downsides to purchasing them. First, they can be very expensive. They charge a premium for the convenience of having it all prepackaged together, sometimes up to several hundreds of dollars. Another downside to purchasing a kit online is that some items will expire, and you will be forced to tear it apart the kit to find and replace the expired product.

The solution to this is to analyze the type of flying you intend to do and plan for any emergencies that could arise based on that. l am basing this list off of an individual flying a small personal aircraft, as the emergency kit for a commercial flight may look quite different. Having a personalized survival kit that contains items you know how to use could make all the difference in a critical situation.

The most major piece of equipment that you want to make sure is with you and functioning properly is the ELT (emergency locator transmitter.) Having one of these significantly increases your chances of being found and rescued if you have an unexpected landing in a secluded area. Check on your ELT to ensure it’s functioning properly and is ready when you need it.

A few other items that are worth including in your emergency kit:

Medical Supplies
This includes bandages, medical tape, ointments, medications, and any instructions for use for each product. It is equally as important to have medical items as it is to have a basic understanding of how to use it. Review instructions on each product and practice using them if needed. 

Food and Water

Depending on where you're flying, you may be secluded enough that it takes quite some time for rescue crews to reach you. In this case, it is important to have food and water rations that will last you at least a couple days. Beyond this, it is a good idea to include a water purification device in case rations run out. 

General Survival Gear

You can get a good idea of what survival gear you might need by visiting an outdoors store or searching the web for what other pilots are using. Generally, you'll want items for both sheltering yourself and signaling for help. Sheltering items include blankets, a canopy, duct tape, rope, a knife, insect repellant, and sun protection. Signaling items include flares, whistles, mirrors, and fire sticks. 

All of these can be packed into a backpack or duffle bag and easily carried with you. What’s in your airplane emergency kit? Any items you hadn’t thought about including but will now? Let me know in the comments!

Sometimes the experts are wrong

When you’re working toward earning your private pilot’s license, and you’re not sure you’re gonna have the time or the cash flow to make it happen, most of the self-proclaimed experts will give you one piece of advice.

Whether it’s a column in a flying magazine, a message thread on a Facebook aviation fan page or a couple of CFIs opining on your favorite podcast, they all chant the same mantra:

If you don’t have the money to fly regularly – at least once a week -- then stop.

Quit floundering in the wind.

Take a break from flying.

Save up your money. For weeks. Months. Years, even. However long it takes to build a cash mountain that will keep fuel flowing in the tanks on a continual basis. THEN start back up again.

If you can’t go weekly, don’t go at all.

At least that’s what they say.

Travis first flightMy first flight was on June 11, 1994. My parents had a rule:  Until I graduated high school, no motorcycles and no airplanes. Well, I was now a brand new high school grad – and I still remember my first flight that hot, humid, hazy Saturday morning with instructor Mark Loring. According to my logbook, we were up for 0.7 hours in a Piper Warrior (I’ll always love you N9886K), and we practiced climbs and descents, level turns and dutch rolls out of Bowman Field (KLOU) in Louisville, Kentucky. When it was over, I celebrated with deep-dish sausage pizza at the Bearno’s across the street from the airport.

I couldn’t believe I had my first entry in my Pilot Logbook.

I couldn’t believe I had a Pilot Logbook.

Eventually, my family got into the flight school business. I had easy access to aircraft and flight instructors. Looking back, I can’t believe how spoiled I was. I was allowed to work the desk at the flight school in exchange for flight time – and soon I was well on my way toward getting my PPL ticket. My first solo was on July 31, 1997. Then came my solo cross countries. My long solo-cross country.

But then, suddenly, things changed.

Our family got out of the flight school business. I moved out of the house. Graduated from college. Launched a new career. Gas prices went up – and my disposable income went down. In the meantime, a handful of evil, selfish people decided to fly airliners into buildings in New York. I changed careers again.

I didn’t get my PPL.

Instead, I took a break from flying. In fact, the very idea of spending money on flying airplanes was laughable. I would still look back on flying wistfully, but as far as I was concerned, it wasn’t in the cards. My medical expired, my sectionals and FAR/AIM s were WAY out of date, and my Jeppesen flight manual gathered dust on my bookshelf.

MY break lasted 16 years.

If you look at my logbook, you’ll see two entries right next to each other. They’re only centimeters apart, but the time they span is breathtaking: one reads Feb. 20, 1999. The next reads June 13, 2015.

I can’t really point to one single thing that brought me back to flying. I guess it started during a 6 a.m. Thursday morning men’s Bible study group at Southeast Christian Church. One week I was asked to summarize my life – from birth until the present day – and flying came up.  The guys at my table asked if I was still doing it. I wasn’t.

Then I read “Jungle Pilot” by Nathaniel Hitt, about the life of missionary pilot Nate Saint. I started volunteering for Mission Aviation Fellowship – an evangelical Christian organization that sends general aviation pilots to serve unreached people in isolated regions. I became friends with some of our missionary pilots – and helped some of them move overseas. I even got the opportunity to visit some of them out in the field.

Ultimately I realized that maybe the experts were wrong. Maybe I didn’t have to go once a week. Maybe I could just go once a month. Maybe once every six weeks. Even if I never got my license, at least I would be in an airplane again. At least I would be flying.

Do you want to fly?

Do you have cable TV? Take my advice:  cancel it.

That’s one flight lesson. One flight lesson a month right there!

The experts are wrong. Don’t do what I did and take 16 years off, thinking flying is out of your reach. If you love flying, and you can only afford to go once a month, then just go once a month. Or once every six months. Or once a year.

Here is a link with Flight Schools and Recurrent Training facilities all around the world, tell the experts to take a hike.

Yes, I know you won’t progress very far toward getting your certificate on a once-a-month regimen. Yes, I know students who go more frequently will get their PPL much faster. And yes, I know every expert says you’re wasting your time. But at least you won’t be giving up entirely.

And it’s not wasting your time if you simply love flying.

Travis PIC

As I write this, I’m looking at my shiny blue private pilot certificate. I passed my check ride – at Sporty’s no less! – on Sept. 1, 2018. Ultimately, I did have to increase the frequency of my flight lessons, but that wasn’t always an option. I’m glad I hung in there, even during the dry spells.

I’m working on my Instrument Rating now. My goal is to eventually get my commercial ticket, and my CFI. Then my flying will finance itself.

Maybe I’ll get there and maybe I won’t. What I do know is I hope to keep flying a part of my life some way – even if it’s only volunteering or reading a book about it – for many years to come.

Sixteen years is far too long.

TRAVIS K. KIRCHER is a private pilot – as well as a lifetime student – based in Louisville, Kentucky. His home airport is Bowman Field (KLOU). He is always ready and willing to tell you about Mission Aviation Fellowship – and you can find out more about it by visiting www.MAF.org

 

 

 

Tips For Renting Your Aircraft

If you own an aircraft and are not utilizing it as much as you would like or if you would like to try and recover some of the cost of owning the aircraft, you may have thought about renting your aircraft to other pilots. As a practical matter, that makes some sense. But before you actually rent your aircraft to another pilot, here are a few things you should consider.

Aircraft Owners May Rent Their Aircraft To Third Parties

Tips for Renting your aircraftIt is important to understand that the FAA does not prohibit aircraft owners from renting their aircraft. In fact, the regulations specifically contemplate rental arrangements. So, renting your aircraft is permitted, provided that you comply with applicable regulations. The FAA provides guidance on what is and isn't a permissible rental arrangement in Advisory Circular 91-37B Truth in Leasing (although truth in leasing requirements only apply to large civil aircraft, the general lease concepts discussed in the AC apply to leasing arrangements for all aircraft).

Make Sure Your Insurance Permits Aircraft Rental

Most aircraft insurance policies will extend coverage to other pilots who fly your aircraft provided that the pilots are either expressly identified in your policy or if they have the necessary experience/qualifications to meet the "open pilot" clause of the policy. However, if you are going to charge the pilot for use of your aircraft, you need to confirm that your policy allows you to rent or lease your aircraft to a third-party. Most aircraft policies issued to owners for personal/business flying do allow aircraft leasing, but it is important to confirm this with your insurance underwriter.

Also, rather than paying to obtain their own insurance policy or renter's insurance to cover their use of your aircraft, most renter pilots will want to be named as an additional insured under your policy as this can oftentimes be done at no cost to you or the renter pilot. In that case, renters will typically ask for a certificate of insurance that reflects not only that they are added to your policy, but that they are covered for their operation and use of their aircraft. This is important because it doesn't do the renter pilot any good if he or she is added to the owner's policy but only covered for the owner's operation of the aircraft, rather than his or her own use.

Renting Your Aircraft Can Trigger Tax Consequences

In most states, when an aircraft owner rents an aircraft to a third-party the owner is required to collect and remit sales tax on the rent paid by the third-party for the aircraft. If you are in one of those states, in order to rent your aircraft you will need to obtain a sales tax number so you can collect and remit sales tax to the taxing authority. This is the aircraft owner's obligation and the taxing authority will hold the aircraft owner responsible for any sales tax the taxing authority believes the aircraft owner should have collected and remitted, regardless of whether the renter pilot actually paid the sales tax to the aircraft owner.

Also, when you rent your aircraft many taxing authorities view that activity as commercial activity which then means your aircraft could be subject to assessment of personal property tax on the value of the aircraft, or some portion of the value based upon the pro-rata rental versus personal use of the aircraft. Although not all states assess personal property tax on aircraft, if you are in a state that does you will want to determine your potential property tax exposure before you decide to rent your aircraft.

Conclusion

Although you will also have other things to consider as you decide whether to rent your aircraft to other pilots, these three issues should be near the top of your list. And if you understand and address these issues up front that will help ensure a successful aircraft rental experience for both you, the aircraft owner, and your renter pilot.

Greg can be reached at:

Greg Reigel
Shackelford, Bowen, McKinley & Norton, LLP
9201 N. Central Expressway, 4th Floor, Dallas, Texas 75231
Direct: (214) 780-1482 - Fax: (214) 780-1401
E-mail:  greigel@shackelford.law
Website:  www.shackelford.law

Why it Took us 3 days to Fly to Oshkosh

Only a few days have passed since we returned from the "World’s Greatest Aviation Celebration" at EAA’s AirVenture and I am already having withdrawals! There is nothing quite like sleeping under the wing of an airplane that you flew in and waking up to the sound of aircraft engines whirling to life. As anyone who has been to AirVenture in Oshkosh, Wisconsin knows, the week is completely unforgettable and there is no shortage of things to see and do.

This is the 4th year my husband and I have flown in, and the 2nd time that we’ve flown my father-in-law’s 1931 Waco ASO. This "Straightwing" biplane was restored in the 70’s and has an open cockpit. It is a wonderful aircraft, but definitely not ideal for cross-country flying. It’s extremely windy, and even in the middle of summer the air gets freezing once you’re at altitude. We knew we were in for a long trip before we left, but the series of events that followed were nothing short of unexpected.

Our plan was to leave Saturday morning, have a leisurely trip up, and arrive that evening to set up camp. However, the reality of our trip to Oshkosh was very different. When we got up Saturday morning, it was pouring rain and ceilings were at 800’. We had to wait for that to clear out, so we weren’t able to depart until around 3pm. We had a 20 knot headwind, and ForeFlight indicated our speed across the ground varied between 60-70 mph. We were slow, and the thunderstorms from earlier had broken up but there were still showers we had to avoid.

We made a quick fuel stop in Harvard, Illinois at a gorgeous grass strip called Dacey Airport. After this we were finally in the homestretch to Ripon.

An important side-note: for those who haven’t read the Oshkosh NOTAM, the gist of the arrival procedure is to approach the town of Ripon, southwest of Oshkosh, and visually separate yourself from incoming traffic. Once you have a half mile separation from the plane in front of you, everyone is instructed to fly at 90 knots and 1800 ft in single file to the next town of Fisk. Once directly over Fisk, the Air Traffic Controllers ask you to "rock your wings" for identification purposes and then they assign you a runway and you are passed to another controller who clears you to land. There are often 4 or 5 aircraft on final at any given moment, so accuracy landings "on the dot" and turning off the runway as soon as able are important. The NOTAM states that no talking on the radio is allowed, so usually this approach is actually easier than landing at some other airports.

With the NOTAM in hand and mostly memorized, we approached Ripon with high hopes for a smooth arrival and landing. After all, the 3 other times we have flown in there were never any issues. However, when we were less than 5 miles from Ripon we heard this on the radio: "Attention all traffic – the Oshkosh field is now closed to incoming traffic for the Bonanza mass arrival. Begin holding. This will be a LONG delay so divert to an alternate if you have low fuel." Partly because we didn’t expect a long delay, and partly because the fuel at Dacey was so expensive, we didn’t fill the tank up. We were far from a fuel emergency, but didn’t have enough to hold for a "LONG delay." We immediately turned to our alternate, Fon du Lac. As we got near and contacted the temporary control tower, we were out of luck again. Fon du Lac was where the Bonanza mass arrival was departing from, and were again told to divert due to "150 Bonanzas on the runway" (Certainly something you would only hear at AirVenture.)

We began looking for a third alternate, and located untowered Dodge County airport 23 nm away. The annoying thing about this section of our trip was that dozens of other aircraft were forced to do the same thing, and we were all inbound to Dodge County at the same time. One such aircraft had a stuck mic, so he was continually transmitting over everyone else trying to coordinate within the pattern. Eventually we all were able to communicate and land, and I must give props to the staff at Dodge County for the "refueling assembly line" they had created to deal with the sudden influx of frustrated aircraft.

The whole FBO was full of pilots who had to divert. Several were on their phones calling every hotel in town only to find out they didn’t have any rooms available. We asked around for a bit about lodging but it appeared our only option in Dodge County was to set up our tent and camp out. With less than an hour left of daylight, we decided to try going back to Fon du Lac, where my father-in-law had found a hotel with open rooms.

We immediately took off, watching as others began pitching their tents on the airport below us. Thankfully Fon du Lac had cleared out the Bonanzas, and we were able to land there (behind a C-47!) and tie down for the night. We were generously given a ride to the hotel by a T-6 pilot who had the same misfortune as us while trying to enter Oshkosh. His wife had brought a camper up earlier in the week and she drove there to retrieve him. After some late-night pizza delivery, we were exhausted and got some rest before a second attempt to enter Oshkosh on Sunday.

Sunday morning we were awoken to the sound of thunder and heavy rain. The weather had taken a turn for the worse overnight, and it was clearly going to be IFR for several hours. We spent most of the day in the terminal at Fon du Lac, watching The Open Championship on tv and monitoring weather. Finally around 3pm the skies began opening up. Immediately engines could be heard starting and it was "go time" for getting into Oshkosh. We took a few moments to refuel and ready the airplanes, and went on our merry way towards Ripon.

10 miles from Ripon we began monitoring the approach frequency. It already didn’t sound good. The controller urgently repeated the phrases "we are oversaturated! Everyone approaching Fisk turn LEFT and enter a hold! If you are not at Ripon, do not come to Ripon! Enter a hold and come back with a half-mile separation!" We figured this was just a big push of traffic, and it would pass through soon. We were very wrong.

This video was taken by someone else who was in the air the same time as we were. You can hear the hecticness and see the planes that are too close for comfort.

Our approach took several minutes, and the controller hadn’t mentioned a hold in a while so we figured it was safe to go over Ripon and enter the lineup over the railroad tracks to Fisk. However, as soon as we got closer we realized just how many aircraft were trying to do the exact same thing. Dozens of planes could be seen in any direction at different speeds and altitudes, going every which way and being way too close for comfort. It was very reminiscent of a WWI dogfight. We maneuvered around a few such planes but ended up with a Kitfox on top of us, a Navajo flanking us on the right, and a couple small Cessnas flanking our left. Clearly this wasn’t going to work and we would be turned away if we even tried to approach Ripon.

We broke away from that disastrous group and entered a hold around the rather large Green Lake. After a few circles mixed with other traffic, it became clear they were not allowing people to enter Oshkosh any time soon. The controller continued to instruct planes to "turn left and enter a hold," "restart the approach," or "stay away from Ripon." At one point he said "there are 300 of you between Ripon and Fisk, we cannot have that and we need better separation!" I’m not sure of the 300 figure was an exaggeration, but it certainly felt like it was accurate.

We stayed in a hold for a little over 2 hours before we decided to return to Fon du Lac and try again later. During this time several other aircraft began declaring low fuel emergencies and were granted permission to land. We monitored approach for several hours after we landed and it was the same story: people turned away right and left for airport oversaturation or improper compliance with the NOTAM.

We spent another night in Fon du Lac and got up at 5:30am Monday morning. Oshkosh officially opened for arrivals at 7:00am but we were not going to get there late and enter a hold. We departed Fon du Lac at 6:40 and went straight into Oshkosh. This was the arrival we were accustomed to. Peaceful, respectful, professional. We landed on the yellow dot and had an incredibly fun week. I hope that next year they seriously consider a way to handle the record-breaking traffic!

End of content

No more pages to load