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July 26, 2012

Logging Time And Payment Of Expenses When Flying With A Safety Pilot

In a recent Legal Interpretation, the FAA Office of the Chief Counsel responded to questions regarding the logging of pilot in command ("PIC") time and distribution of expenses when a safety pilot is used. The scenario presented involved two pilots, A and B, planning a Part 91 local VFR flight for the purpose of Pilot A satisfying instrument time or instrument currency requirements. Pilot A secured the aircraft (type certificated for one pilot crewmember), and Pilot B agreed to serve as a safety pilot during the portion of the flight that required a safety pilot. Both pilots held private pilot certificates and were qualified to act as PIC.

In addressing the logging of flight time, the Interpretation observed that FAR 91.109(b) prohibits a pilot from operating in simulated instrument flight without a safety pilot. Thus, during the simulated instrument portions of the flight Pilot B was a required crewmember. As a result, the Interpretation stated that Pilot B could log second in command ("SIC") time for the time in which Pilot A acted as PIC and was the sole manipulator of the controls during simulated instrument flight. It also noted that since Pilot A was acting as PIC during the simulated instrument portion of the flight, Pilot B would not be able to log PIC time under FAR 61.51(e). However, if Pilot B agreed to act as PIC for the simulated instrument portion of the flight, the Interpretation concludes "then Pilot B could log that time as PIC time under FAR 61.51 (e)(1)(iii) because he is acting as PIC of an aircraft for which more than one pilot is required under the regulation under which the flight is being conducted." Additionally, as the sole manipulator of the controls of the aircraft for which Pilot A is rated, Pilot A would also be permitted to log the time as PIC time under FAR 61.51(e)(1)(i).

With respect to the question of whether Pilot B would be obligated to share expenses for the flight, the Interpretation initially observed that FAR 61.113(c) prohibits a private pilot acting as pilot in command from paying less than his or her pro rata share of the operating expenses of a flight with passengers. In the scenario presented, Pilots A and B were both required crewmembers during the portion of the flight that is conducted in simulated instrument conditions. As a result, the Interpretation concludes that if Pilot B acts as PIC only during the simulated instrument portions of the flight, Pilot B would not be required to pay a pro-rata share of the operating expense of the flight under FAR 61.113(c) since Pilot B would not be acting as PIC on a flight carrying passengers.

This Interpretation highlights the FAA's distinction between "acting" as PIC for a flight versus logging time as PIC by virtue of being the sole manipulator of the controls of the aircraft. As you can see, this distinction has a direct bearing on how a safety pilot, or any other pilot for that matter, logs flight time. Understanding this distinction will help ensure that you are logging your flight time correctly whether you are acting as, or flying with, a safety pilot.

Posted by Greg

July 16, 2012

NTSB Issues Experimental Amateur-Built Aircraft Safety Recommendations

Earlier this year, the National Transportation Safety Board ("NTSB") conducted a safety study, The Safety of Experimental Amateur-Built Aircraft, in conjunction with the Experimental Aircraft Association ("EAA") and other organizations, investigating the certification and testing of E-AB aircraft and the training of the pilots who fly these aircraft. The results of the study were presented at a public hearing on June 19 and 20, 2012. Following the public meeting, the NTSB adopted the study on May 22, 2012. As a result of the study, the NTSB has now issued safety recommendations to the FAA and to EAA.

The FAA Safety Recommendations are as follows:

Revise 14 Code of Federal Regulations 21.193, Federal Aviation Administration Order 8130.2G, and related guidance or regulations, as necessary, to define aircraft fuel system functional test procedures and require applicants for an airworthiness certificate for a powered experimental, operating amateur-built aircraft to conduct that test and submit a report of the results for Federal Aviation Administration acceptance. (A-12-28)
Revise 14 Code of Federal Regulations 21.193, Federal Aviation Administration Order 8130.2G, and related guidance or regulations, as necessary, to require applicants for an airworthiness certificate for experimental, operating amateur-built aircraft to submit for Federal Aviation Administration acceptance a flight test plan that will (1) ensure the aircraft has been adequately tested and has been determined to be safe to fly within the aircraft’s flight envelope and (2) produce flight test data to develop an accurate and complete aircraft flight manual and to establish emergency procedures and make a copy of this flight test plan part of the aircraft’s certification file. (A-12-29)
Identify and apply incentives to encourage owners, builders, and pilots of experimental amateur-built aircraft to complete flight test training, such as that available in the Experimental Aircraft Association’s Test Flying and Developing Pilot Operating Handbook, prior to conducting flight tests of experimental amateur-built aircraft. (A-12-30)
Revise Federal Aviation Administration Order 8130.2G, and related guidance or regulations, as necessary, to clarify those circumstances in which a second qualified pilot could be authorized to assist in the performance of flight tests when specified in the flight test plan and Phase I operating limitations. (A-12-31)
Revise Federal Aviation Administration Order 8130.2G, and related guidance or regulations, as necessary, to require the review and acceptance of the completed test plan documents and aircraft flight manual (or its equivalent) that documents the aircraft’s performance data and operating envelope, and that establishes emergency procedures, prior to the issuance of Phase II operating limitations. (A-12-32)
Revise Federal Aviation Administration Advisory Circular 90-89A, Amateur-Built Aircraft and Ultralight Flight Testing Handbook, to include guidance for the use of recorded flight data for the purposes of flight testing and maintaining continued airworthiness of experimental aircraft. (A-12-33)
Revise Federal Aviation Administration Order 8130.2G and related guidance or regulations, as necessary, to include provisions for the use of electronic data recordings from electronic flight displays, engine instruments, or other recording devices in support of Phase I flight testing of experimental amateur-built aircraft to document the aircraft performance data and operating envelope and develop an accurate and complete aircraft flight manual. (A-12-34)
Develop and publish an advisory circular, or similar guidance, for the issuance of a Letter of Deviation Authority to conduct flight instruction in an experimental aircraft, to include sample documentation and sample training materials. (A-12-35)
Complete planned action to create a coalition of kit manufacturers, type clubs, and pilot and owner groups and (1) develop transition training resources and (2)identify and apply incentives to encourage both builders of experimental amateur-built aircraft and purchasers of used experimental amateur-built aircraft to complete the training that is developed. (A-12-36)
Revise 14 Code of Federal Regulations 47.31 and related guidance or regulations, as necessary, to require the review and acceptance of aircraft operating limitations and supporting documentation as a condition of registration or re-registration of an experimental amateur-built aircraft. (A-12-37)
Revise Federal Aviation Administration Order 8130.2G, and related guidance or regulations, as necessary, to include provisions for modifying the operating limitations of aircraft previously certificated as experimental, operating amateur-built, such as returning the aircraft to Phase I flight testing, as necessary, to address identified safety concerns or to correct deficiencies in the aircraft flight manual or equivalent documents. (A-12-38)
Revise the Civil Aircraft Registry database to include a means of identifying aircraft manufacturer, make, model, and series such as the aircraft make, model, and series classification developed by the CAST/ICAO Common Taxonomy Team that unambiguously identifies the aircraft kit or plans design as well as the builder of the aircraft. (A-12-39)

The EAA Safety Recommendations are as follows:

Identify and apply incentives to encourage owners, builders, and pilots of experimental amateur-built aircraft to complete flight test training, such as that available in the Experimental Aircraft Association’s Test Flying and Developing Pilot Operating Handbook, prior to conducting flight tests of experimental amateur-built aircraft. (A-12-40)
Work with your membership, aircraft kit manufacturers, and avionics manufacturers to develop standards for the recording of data in electronic flight displays, engine instruments, or other recording devices to be used in support of flight tests or continued airworthiness of experimental amateur-built aircraft. (A-12-41)
Create and publish a repository of voluntarily provided information regarding holders of Letters of Deviation Authority to conduct flight instruction in experimental aircraft. (A-12-42)
Complete planned action to create a coalition of kit manufacturers, type clubs, and pilot and owner groups and (1) develop transition training resources and (2)identify and apply incentives to encourage both builders of experimental amateur-built aircraft and purchasers of used experimental amateur-built aircraft to complete the training that is developed. (A-12-43)

Of course, these are only recommendations and neither the FAA nor EAA are obligated to comply. However, many of the these recommendations make a lot of sense and it is my understanding that some of these recommended actions are already being implemented by EAA. Any rulemaking by the FAA, should it decide to act on any of the NTSB recommendations, will necessarily take a longer period of time.

Posted by Greg

July 13, 2012

NTSB Filing Deadlines Still Seem To Cause Problems For Some Airmen

In four recent cases, Administrator v. Alvarez, Administrator v. Mason, Administrator v. McGrimley, and Administrator v. Wozniak, the airmen's appeals were dismissed for failing to file within the time allowed by the 49 C.F.R. Part 821 - Rules of Practice in Air Safety Proceedings. In Alvarez, Mason and Wozniak, the airmen failed to file their appeal briefs within 30 days after a written decision as required by Rule 821.48. In McGrimley, the airman failed to his notice of appeal within 2 days after the oral initial decision or written order, and also failed to file his appeal brief within 5 days after the notice of appeal, as required by Rules 821.57(a) and (b) applicable to emergency proceedings.

Under 49 C.F.R. 800.24(j), the NTSB General Counsel may dismiss late filed notices of appeal and appeal briefs for lack of good cause. And it is important to keep in mind that the "good cause" standard is exceptionally difficult to satisfy. In each of these cases, not only did the airmen fail file by the deadline, but they also failed to show good cause for the untimely filings. As a result, their appeals were dismissed. An unfortunate result for the airmen, although not surprising.

Word to the wise. When you are involved in an FAA enforcement action that is appealed to the NTSB, deadlines matter! Make sure your filings are timely to ensure you have your day in court.

Posted by Greg

July 12, 2012

Flying Into Canada With A DWI Now Easier For Some Airmen

If you have read my article Flying Into Canada After A DWI or DUI Conviction, you know that a DWI or DUI conviction may prevent an airman from entering Canada or, at a minimum, may cause the airman some hassle, delay and expense when he or she arrives. Effective March 1, 2012, the situation has changed somewhat.

Now, Canada’s Federal Tourism Strategy has made it somewhat easier for Citizenship and Immigration Canada and the Canada Border Services Agency to allow certain airmen who have a DWI or DUI on their record to enter Canada. Under the new policy, it is possible for an airman with one DWI or DUI to obtain a temporary resident permit for one visit without having to pay the C$200 processing fee that was required in the past. However, to qualify under the new policy, an airman must:

have served no jail time;
have committed no other acts that would prevent him or her from entering Canada; and
not be inadmissible for any other reason

Other acts that might prevent an airman from entering Canada include another DWI or DUI, or convictions for public mischief or shoplifting. If an airman has convictions for robbery, fraud over C$5000, or assault causing bodily harm then he or she would not be admissible.

It is important to keep in mind that the fee for a standard (single-entry) permit will only be waived once. In order to gain entry a second time, an airman would need to either pay the C$200 fee and apply for consideration for a temporary resident permit (which may or may not be granted) or wait until he or she has meet the conditions for deemed rehabilitation (which is discussed in my article).

If you have additional questions regarding flying into Canada with a DWI or DUI, you can read my article or obtain more information from Citizen and Immigration Canada here.

Posted by Greg

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