AircraftOwner Online

    If you own, or are thinking of owning, an aircraft manufactured in another country and imported into the United States, you should be aware of the ruling of the NTSB in a recent case. Here are the facts as a prospective purchaser would see them:

    The Aerospatiale Alouette II helicopter has been manufactured in France since the 1950’s and has been used as a military aircraft. At least 70 Alouette II helicopters have been imported into the United States and have been given Normal Category Standard Airworthiness Certificates by the FAA. The particular helicopter involved in this case was manufactured in September of 1959 and went directly to the German military. The Buyers purchased a helicopter with a US Normal Category Standard Airworthiness Certificate, and with an existing N registration, as one of three Alouette II helicopters they were considering for purchase, all of which had US registration numbers and Normal Category Standard Airworthiness Certificates. The FAA had previously issued a Type Certificate – No. 7H1 – for this model helicopter. An FAA Designated Airworthiness Representative (DAR) had issued the Standard Airworthiness Certificate for the helicopter. The helicopter in question had been the subject of an “attestation” written on the letterhead of “Aviation Civile” which stated “Although we have not inspected ourselves [helicopter SE 3130 – Alouetter II S/N 1312], we can certify . . . on the basis of the information listed on the individual record inspection log book at Erocopter’s, that . . . the basis design of the above mentioned helicopter . . . was at the time of manufacture . . . compliant with DGAC Type Certificate No. 1 and with the FAA Type Certificate No. 7H1”. The FAA expressly agreed that the helicopter was safe for operation.

    The Buyers bought the helicopter for $165,000.00 and put it to work in a commercial operation.

    The FAA had, since 2004, had concerns with military surplus helicopters. The FAA, unbeknownst to the public, had formed the “Charter Quest Special Emphasis Investigations Team” based out of the Alliance Airport in the Southwest Region, for the specific purpose of looking through the documentation of each of the foreign military surplus helicopters operating on Normal Category Standard Airworthiness Certificates to make sure that they each had proper documentation that the French Government had issued an appropriate letter after an inspection of each particular helicopter. If they did not find such a document, the FAA would then issue an Order of Emergency Revocation of the Airworthiness Certificate of the helicopter. That is what happened here. (In prior columns, I have written about my perception that the FAA is abusing their power to determine that an emergency situation exists. This is just one more example of that. In this case, everyone agreed that the aircraft was perfectly safe to operate, and that the only alleged problem was a problem of documentation. In fact, at the time of the hearing, the FAA had issued an “Experimental Airworthiness Certificate” to the same aircraft. So, what was the “emergency”?)

    Now, dear reader, you might be asking yourself, “well, didn’t these buyers have a letter from the French Government?” And the answer would be, “sort of”.

    It turns out that the actual arm of the French Government which has the power to issue Type Certificate Data Sheets is called the “Direction Générale de l’Aviation Civile (DGAC).” Our buyers had an attestation from the “Groupement Pour la Securite Aviation Civile (GSAC)”. This entity shares the same logo as the DGAG.

    The Trial Judge, in his Order, stated: “I think it was brought up and brought to our attention that the fifteenth revision to this type certificate data sheet identifies these people as being the same as the DGAC of France or the civil aviation authority over there.” The NTSB itself, only noted in its opinion: “Groupement Pour la Securite Avaition Civile appears to be a French organization separate from the DGAC, but involved in promoting aviation safety by conducting inspections.”

    (I find it alarming that neither the FAA counsel, nor the attorney for the buyers – or for that matter the NTSB, appear to have even performed a Google search of this group. If they had, they would have known that, according to the GSAC: “The Direction G‚n‚rale de l’Aviation Civile (DGAC) has delegated to the Groupement pour la S‚curit‚ de l’Aviation Civile (GSAC) the responsibility to carry out aeronautical technical inspection tasks in its name. The GSAC is a public-private economic interest group, grouping together DGAC, Bureau Veritas and SOFREAVIA. It carries out inspections and checkings of aircrafts, aircraft parts and gears, in France and other countries. It audits institutions in the design, production and maintenance fields, including the engineer training institutions. The inspections, checkings and audits serve the purpose of issuing and renewing airworthiness certificates and permit to fly, aircraft operator certificates, design, production and maintenance approvals, ground mechanic training organisation approvals, aircraft station licenses (LSA) and ground mechanic licenses. In other words, the GSAC is, in fact, the entity that has been delegated the authority to inspect for compliance with the requirements of airworthiness certificates on behalf of the DGAC. This is why they share a common logo.”)

    Both the Judge and the NTSB seemed to get this distinction somewhat, although the FAA contended to the end that the GSAC is not the French government, therefore, the buyers’ certificate came from the wrong people.

    What tripped up the buyers ultimately, however, was the first sentence fragment of the attestation that they did provide: “Although we have not inspected this helicopter...” The actual Type Certificate Data Sheet No. 7H1, issued by the FAA for the Aerospatiale Alouette II helicopter, specifically provides, however: “A U.S. Airworthiness Certificate may be issued on the basis of a Certificate of Airworthiness for Export signed by a representative of the Secretariat General a l’Avaition Civile containing the following statement: ‘The helicopter covered by this certificate has been examined and found to comply with U.S. Civil Air Regulation Part 6, dated January 15, 1951, including Amendments 6-1 through 6-8, and with the Special Requirements notified to the Government of France by the Government of the United States of America and conforms to T.C. 7H1.’ “This type of certification by a foreign Government is known as a “Certificate de Navigability.”

    There was nothing that the buyers could produce to show that any arm of the French government, whether that be the DGAC itself, or the GSAC acting as the delegated representative of the DGAC, had actually inspected the aircraft at the time of export to assure the United States Government that no modifications had been made which might have caused the aircraft not to have complied with the French Type Certificate No. 1 or the US Type Certificate No. 7H1.

    “But”, you might ask, “didn’t a US Designated Airworthiness Representative inspect the helicopter to determine that it was airworthy and safe for operation before granting the helicopter a Normal Category Standard Airworthiness Certificate?” Yes, one sure did. In fact, the way it worked is that an A&P went over this helicopter and its logbooks with a fine-tooth comb and decided that it was airworthy. The A&P then certified this finding to the DAR, who made his own inspection, agreed, and issued the Standard Airworthiness Certificate. The statement of a DAR is considered the act of the FAA Administrator himself, since the DAR is the Administrator’s designated representative.

    However, and this cannot be stressed enough, the concept of “airworthiness” – as interpreted by the FAA and the NTSB is not simply a certification that the aircraft is safe for operation. The test for “airworthiness” is a two-pronged test, the first prong of which is that “the aircraft is in compliance with its Type Certificate Data Sheet.”

    What really happened here, and it is not the first time this has happened, nor is it likely to be the last, is that the FAA changed its mind. Even though there were some 70 buyers out there who had acted in good faith, and had relied on the A&P’s who inspected the logbooks and the helicopters, the DAR’s who inspected the logbooks and the helicopters, the FAA Certification Branch which issued the Type Certificate for the helicopter back in 1951 (when it was the CAA), and who registered the aircraft in N registry, the FAA decided that it no longer liked the fact that people were using these older foreign military surplus helicopters for commercial operations. So they set up a special unit to go out and find ways to declare these helicopters “un-airworthy” and to revoke their certificates on an emergency basis.

    The Administrative Law Judge was extremely apologetic to the buyers throughout his opinion. In speaking about cases like this where the Administrator changes his mind, he stated: “Once the Administrator takes that action, it’s extremely unfair to the folks that it’s directed to, but at the same time, you can’t help but step back and say, well, what other choice did the Administrator have under the circumstances?” When the FAA tried to blame the buyers, saying that the buyers had not done their due diligence, the Judge shot back: “He (the buyer) went out there with three of these helicopters. They looked at the airworthiness certificate. They looked beyond the airworthiness certificate. They looked at the logbooks and records, and they believed that because it did have an airworthiness certificate and these other records from the Administrator that it was a good buy, and they paid $165,000 for that aircraft. And now, with this emergency order of suspension, even though it has an experimental certificate, it cannot be used for any of the purposes they talked about and that they had used it for before, because you can’t use an experimental aircraft for commercial purposes..”

    Also in responding to the Administrator’s argument that the buyers didn’t perform their due diligence, the Judge said: “one of [these arguments] was that these people didn’t do their due diligence, but they did. If there’s anybody that didn’t do their due diligence, it was the representatives of the Administrator in not following up on this.”

    Nevertheless, the Administrative Law Judge felt that he had no choice and suspended the Standard Airworthiness Certificate for the helicopter. The buyers appealed to the NTSB. The Board was also somewhat sympathetic to the buyers, saying: “We note that DAR Cernuda’s and Mr. Marrs’s mistakes are troubling, and we sympathize with respondents’ position that they relied upon the FAA to issue a standard certificate of airworthiness for N225RW only if the aircraft was airworthy. However, we have previously held that such errors do not prohibit the FAA from taking action against a certificate.”

    There are important lessons to be learned from this case. While most modern aircraft being manufactured in foreign countries apply for, and receive, US Type Certificates at the time of their manufacture, and are approved for direct sale by dealers in this country – as opposed to having to be imported from their country of manufacture – many older aircraft lack this documentation. The rules for each of these aircraft are different, and must be understood at a great level of detail by the people who wish to buy and operate them in the United States. Buyers of older foreign aircraft should be aware of this.

            In addition, it is important for aviators to understand that each Flight Standards District Office and Regional Center has the ability to assemble Special Emphasis Investigation Teams. This is being done more and more in recent years. These teams generally operate more-or-less in secret, with little or no public notice, with the goal of correcting a perceived problem that is not isolated. Such a team led to the shutdown of TAG, allegedly for issues concerning control by a foreign company; and other similar matters. They are often heavy-handed, developing new ways of looking at regulations to support their conclusions, gathering evidence under the cover of inspections of other, seemingly-insignificant matters, and then pouncing all at once, bringing the work of the subject of the investigation to an immediate standstill with no warning, and using expedited procedures to force the subject to gather his evidence and present his defense in less than thirty days all the while trying to pay attorneys without any present cash flow. Is it unfair? You bet it is. In a true “emergency” as most of us understand it – when there is imminent danger of death, personal injury, or property damage – it makes sense for the FAA to use these powers. But using them to enforce a policy change with regard to paperwork violations having nothing to do with safety, is simply wrong at every level.

    Most commonly, this issue came up in regard to the airman’s answers to Question 18v on the Application to Renew Medical Certificate. The FAA basically felt that it was totally incredible to believe that someone who had been stopped by the police for a supposed alcohol-related charge, and who answered “no” to the question, didn’t intend to deceive the FAA. In the collective mind of the FAA, pilots should know that they need to err on the side of full disclosure of all alcohol-related stops.

    Question 18w also came in for review. The question asks about convictions for crimes other than non-alcohol-related traffic crimes. One pilot, who had a criminal conviction for forgery, testified that he had discussed this question with his AME. Both he and his AME told the Administrative Law Judge that the AME had advised the pilot that the only thing the FAA was interested in on this form was a conviction for alcohol or drug-related matters. The NTSB felt that this information was irrelevant because the pilot also testified that he now understands that this information was incorrect and that he should have answered the question “yes”. The DC Circuit Court ruled that the NTSB had to consider the pilot’s arguments and testimony, and could not simply ignore it.

    As many of you are aware, the FAA has been using its “emergency” powers more and more recently lately. In fact, as of last year, fully 46% of all of the appeals heard by the NTSB from decisions made by Administrative Law Judges were from emergency appeals. This means that more than half of all FAA enforcement actions are now classified as “emergency” actions, forcing the airman to send back his or her certificates, stop flying immediately, hire counsel and prepare to go to trial within 30 days. To make matters worse, the FAA had convinced the NTSB that it did not have to prove “intent” to falsify an entry when trying to prove that an airman was guilty of the offense of “intentional falsification”, resulting in the airman being deprive of a hearing if the FAA could simply prove that the information on the forms submitted by the airman was false. This combination of having to defend under the expedited procedures of the emergency determination by the Administrator, and not even being able to show any circumstances under which an improper or incorrect statement might not have been intended by the airman to deceive the FAA, has resulted in a huge number of airmen losing their flying privileges for things that, in years gone by, would never have resulted in such a severe penalty.

    While these two new cases are important, they still give a lot of latitude to the NTSB and the Administrative Law Judges to rehear the cases involved and still to make rulings in favor of the FAA and against the airman. The primary benefit of these cases, however, is that this is one more reminder, from a very high judicial authority, that the FAA really has an obligation to prove that the airman did something wrong and that the appropriate punishment for what the airman did wrong is revocation of the airman’s certificates.

    We can only hope that, at some time in the near future, both the Courts and the Congress will take a look at the way in which the FAA has used its determination that an “emergency” exists. Only the most radical of pilots or lawyers would argue that the FAA should not have the power to enact regulations and to make sure that airmen follow those regulations. In most cases, however, where the FAA believes that a violation exists, I think most informed people would agree that the airman is entitled to an opportunity to present his or her side of the story, and to have his or her arguments listened to by a neutral party. Sane people would also not differ on the fact that the government needs to have the power to stop an activity that imminently threatens the lives of the traveling public, or of people on the ground, without having to wade through a whole bunch of red tape to stop the dangerous activity.

    But many of us in the field have noticed that many, if not most, of the actions the FAA is bringing under its emergency power do not appear to have any imminent threat to the safety of flight. They are, for want of a better adjective, “garden variety” technical regulatory paperwork violations. In some cases, the FAA has researched and investigated the operations for years, and there have been no accidents, or even history of safety violations, when the FAA suddenly files an Emergency Order of Revocation, essentially grounding the operator immediately. In the cases of small operators, this immediate cessation of business usually spells the end of the business in its entirety. The operator simply lacks the cash reserves to keep paying rent, salaries, and other expenses for several months, while at the same time hemorrhaging cash to pay for attorneys and expert witnesses. In effect, even if the operator or the airman prevails in the end, the business has been ruined.

            There is an urgent need to scale back the types of actions for which the FAA can bring an emergency revocation to limit the cases in which they use this drastic power to situations where air safety is truly at issue. These DC Court of Appeals cases, merely hint at a part of the solution. Much more action is needed to solve the underlying problem.

  OK, so you want to buy an airplane. How are you going to title it? Particularly, how are you going to title it if more than one person is involved in the ownership of the airplane? These are questions that confuse most people.

    Of course, the easiest way to title the aircraft is to put it in one, individual name: “John Q. Pilot”, for example. Alternatively, an existing business might want to title its aircraft in company name: “Widget Manufacturers, Inc.” would be an example of “corporate ownership”. If Widget Manufacturers, Inc. is incorporated in one of the states of the United States, and if the President, 2/3rds of the other members of the Board of Directors, and 75% of the shareholders are all United States Citizens, then the Widget Manufacturers, Inc. would qualify as a “Corporation” on the Application for Registration. If the corporation does not meet these requirements, then the corporation would not be eligible to register the aircraft in the United States unless the ownership structure met three other specific criteria, and the box on the Application for Registration would have to be checked as a “Non-citizen corporation”.

    Many people, including a lot of lawyers, tend to shy away from titling assets in the name of an individual or a company that has other business, preferring instead to create a “single purpose entity” for the purpose of holding title to the aircraft. This method is generally used to “compartmentalize potential liability” such that an uninsured loss attributable to the aircraft does not affect the assets of the main corporation. As I pointed out in one of my first articles, aviation is one area where this tactic can become a trap for the unwary. The FAA does not favor single purpose entities. In fact, when you register an aircraft to a corporation or an LLC that has no other business purpose except the ownership of the aircraft, the FAA considers the aircraft to be commercially used because the only purpose of the single purpose entity is to provide transportation by air. In order for an artificial entity to own and register an aircraft, the ownership of the aircraft must be “incidental” to the business of the corporation. A real estate company can own an aircraft in its name and use the aircraft to show properties or to transport is agents around the state to take listings and make sales. But XYZ Company, Inc. cannot take real estate agents around the state for these purposes without being considered a commercial operation, which would require XYZ Company, Inc. to have a 135 certificate. It doesn’t make a lot of sense, but that’s the way it is. 

The Application for Registration form does not contain a section for Limited Liability Companies. In general, these are treated like Partnerships, and you may check that box. You will be required to provide an LLC statement to the FAA showing that all the members of the LLC are United States citizens and providing some additional information. Obviously, a formal partnership would check the “Partnership” box as well.

When more than one person or entity owns an aircraft, the FAA considers the aircraft to be “co-owned”. So Jack and Jill Pilot, husband and wife would register their aircraft as “co-owner” on the Application for Registration. “Fractional Ownership” is a specific type of co-ownership. Fractional Ownership, as used by Subpart K of Part 91 of the FARs, requires at least two aircraft to be involved in an FAA-approved program which blends parts of the requirements of Part 135 with the requirements for Part 91. It involves a lot of paperwork.

    Where a bunch of friends simply want to share the ownership of one aircraft, the proper name for the type of ownership to be placed on the Application for Registration is co-owner”. Different types of individuals and entities can co-own an aircraft. For instance, John Q. Pilot and XYZ Pilots, Inc. could co-own an aircraft. Technically, you may have as many co-owners of one aircraft as you want, but the FAA starts to look a little askance at the transaction when there are more than five co-owners of a particular aircraft. Under such circumstances, you may find that the ownership is more likely a flying club or a fractional ownership program, each of which has different paperwork and compliance requirements.

    There are specific requirements for documentation that must be submitted to the FAA when an entity other than an individual wants to register an aircraft on the US Civil Aircraft Registry. Make sure that you follow the instructions on the forms for the Bill of Sale and the Application for Registration. If you have questions, or if the FAA kicks back your attempt to register your aircraft, call an aviation attorney for assistance. Remember, it is both a crime and a violation of the FARs to fly an unregistered aircraft. If you own an aircraft, and you are not completely sure of how that aircraft is titled, you may wish to look on the FAAs website and do an N-number search to see what the FAA records reflect. If the information doesn’t look like what you think it is supposed to look like, that is a big clue that you need to call somebody to get the situation fixed.

   Although each of us knows that he or she is the world’s best pilot, sooner or later, most of us will have some sort of incident or accident that needs to be reported. The first questions that need to be asked is, “Does this have to be reported to anyone?” “To whom do I report this?” “When do I have to report this?” And, “What, exactly, must be in the report?”

    The legal answers to all of these questions can be found in NTSB Part 830. For aircraft less than 12,500 pounds maximum certificated takeoff weight, the ONLY times that a report must be filed are when:

1. There is an aircraft ACCIDENT (more on this later)

2. Any required FLIGHT CREW member is unable to perform normal flight duties as a result of injury or illness

3. A flight control system malfunctions or fails

4. A structural component of a TURBINE engine (OTHER THAN the compressor, turbine blades or vanes) fails

5. In-flight fire

6. Aircraft collide in flight

7. There is damage to property (OTHER THAN THE AIRCRAFT ITSELF) estimated to exceed $25,000.00 for repair (including materials and labor) or fair market value in the event of total loss, whichever is more.

 If what happened to you doesn’t fall within these 7 areas, you are NOT legally required to report the event to the NTSB (there may, however, be requirements to cooperate with local law enforcement which may vary from state to state, or to fill out a report with the local airport authority).

    For NTSB purposes, an “ACCIDENT” means an “occurrence associated with the operation of an aircraft, BETWEEN THE TIME ANY PERSON BOARDS THE AIRCRAFT WITH THE INTENTION OF FLIGHT, AND ALL SUCH PERSONS HAVE DISEMBARKED, and in which any person suffers DEATH or SERIOUS INJURY, or in which the aircraft receives SUBSTANTIAL DAMAGE.”

    The term “DEATH” includes injuries which result in death within 30 days after the accident.

    The term “SERIOUS INJURY” means an injury which: 1) requires hospitalization for more than 48 hours, commencing within 7 days from the date of the injury; 2) results in fractures of any bone (except simple fractures of fingers, toes or nose); 3) causes severe hemorrhages, nerve, muscle, or tendon damage; 4) involves any internal organ; or 5) involves second or third-degree burns, or any burns affecting more than 5 percent of the body surface.

    The term, “SUBSTANTIAL DAMAGE” means “damage or failure which would normally require MAJOR repair or replacement of the affected component. But, TAKE NOTE, “engine failure limited to an engine if only one engine fails or is damaged, bent fairings or cowling, dented skin, small punctured holes in the skin or fabric, ground damage to rotor or propeller blades and damage to landing gear, wheels, tires, flaps, engine accessories, brakes or wingtips” are NOT considered “substantial damage” for the purpose of the reporting requirements.

    Most gear-up landings are NOT reportable, even though there is usually damage to flaps, the belly skin and the prop(s). Even an engine failure resulting in a forced off-airport landing with minor skin damage need not be reported.

    The NTSB form itself requires only that you tell the NTSB very basic information, as well as “a description of any explosives, radioactive materials, or other dangerous articles carried.” Most of the information required by the form itself is not incriminating or likely to result in civil liability. Nevertheless, it is generally good advice to be as brief and factual as you can, without any additional, unrequested explanations, while still answering the questions truthfully.

    The “OPERATOR” of the aircraft is the individual required to make the report. The report is to be made on the specified form (NTSB Form 6120.1), and must be made to the field office of the NTSB nearest to the site of the occurrence. One section of the rule requires that the report be made IMMEDIATELY, and by the most expeditious means available.” Another section of the rule says that the report must be filed “within 10 days after an accident.”

    As a required attachment to the report, “each crewmember, if physically able at the time the report is submitted, shall attach a statement setting forth the facts, conditions, and circumstances relating to the accident or incident as they appear to him. If the crewmember is incapacitated, he shall submit the statement as soon as he is physically able.”

    Many aircraft accidents which result in injuries become the subject of FAA enforcement actions and lawsuits. Therefore, IT IS IMPORTANT NOT TO MAKE A CREWMEMBER STATEMENT UNTIL YOU ARE THINKING CLEARLY. Immediately after a reportable event, you are going to be in shock, either due to emotional stress, physical injury, or both. Once all passengers and crew are accounted for and provided with aid; all cargo that could cause a hazard has been secured; any valuables have been secured; and the wreckage placed in the hands of the first responders, the crew should take advantage of the “physically able” language to decline to give comments until they are no longer in shock.

    Pilots tend to be our own worst enemies. When something goes wrong, we tend to blame ourselves, even if we were not at fault. We all know that, as Pilot-In-Command, we are ultimately responsible for the safe operation of the aircraft. Simply because we may ultimately have to be responsible, does NOT mean that we did something wrong to cause the accident. If you are involved in an accident, have a friend call an aviation attorney for you. The attorney will probably ask you to collect your thoughts in writing as best you can. Those thoughts will be privileged and need not be disclosed to anyone other than the attorney. If you give your first thoughts to the FAA or the NTSB while you are still in shock, there is no privilege which will prevent your statement from being used against you in the future.

A Few “Heavy Iron” Procedures for the Light Aircraft Pilot

A Bonanza crashed at a nearby airport. Witnesses said the engine failed at an altitude of 75’ to 300’ and the pilot attempted to turn back to the airport. He did not make it. Both occupants died.

    The NTSB released the transcript of the US Air flight that crashed on takeoff at Lexington, Kentucky. Much was made of the pilots’ chatter about irrelevant information while the crew lined up on the wrong runway. That accident also revealed that there were not as many controllers working as there should have been, and the one controller who was working was not watching the doomed flight.

    “Sully” ditched in the Hudson, rather than trying to put it on dry land. How many of us, in our own aircraft, would have made the almost-instantaneous decision that we could not save our aircraft from damage, and that we were going to “get wet”?

    Some airline procedures, if properly and habitually used by private pilots, would allow those who fly with us to testify in court as to our habitual use of enhanced safety procedures beyond those that are required by regulation if we are ever involved in an aircraft crash. This could spare us, our families and our Estates, a great deal of humiliation and expense.

    These are a few suggestions:

Pre-takeoff briefing

On most professional flights, the pilot flying will brief the crew-members on the procedures that will be used for departure. Even if you have to say it out loud to yourself, this is a great habit to get into. “We have been cleared for takeoff on Runway 05. On the takeoff roll, if any instrument goes into the red, or changes suddenly in any way, I want you to tell me immediately. I will rotate at 85 knots and climb out at 120 knots. If we have not reached climb speed, I will abort the takeoff on the runway. Below 300’, I will land straight ahead, even if I go off the end of the runway. I will not make any turns. If we are above 300’, I will hold 106 knots, best glide, and attempt to land on I-95 with the traffic. Above 1,500’, I will determine whether it is safe to attempt to land back at the airport or at another landing area within our glide radius.

    This forces the pilot to think about a rejected takeoff or an engine failure at low altitude. We probably all know someone who tried to turn back to the airport at too low an altitude following an engine failure, and didn’t make it. Saying what you intend to do before you take the active can help you avoid the compulsion to try it too.

Sterile cockpit

Professional crews do not discuss any matters not concerned with the flight from engine start until 10,000’. Similarly, once the aircraft has been cleared to descend for approach to landing, until engine stop, the professional crew discusses only issues related to the present and upcoming phases of flight. Those of us who fly light aircraft can modify this rule so that, until established on initial cruise altitude and heading, no one says anything that the crew can hear unless it is directly related to a safety of flight item in the current or pending phase of the flight. Similarly, once the flight has been cleared to descend for landing, the passengers and crew should confine themselves to safety-of-flight items only. Many of us know pilots who chatter from engine start to shut down. How many radio calls were missed? How many checklist items were never checked?

Fly the airplane

Most of us learned this one in primary flight training. But it is vital, even in a small aircraft, to make sure that someone is always in command, and that someone is always actually flying the aircraft.

Use the system, but don’t depend on it

Whether flying IFR or VFR with radar advisories (flight following), use the system. Having people on the ground that know who you are, where you are going, and what you are doing, is a good thing. If the advisories become burdensome, cancel services and navigate on your own. Don’t become complacent. When you are advised unexpectedly, “Radar Service terminated, Resume own Navigation, Squawk VFR”, can you continue your flight without straying into restricted airspace? GPS and moving maps have made this easier than it used to be, but it is no less important.

Double check the controllers

Unless given an “immediate” instruction, there is usually time to make sure that the instruction makes sense. Controllers are human, and sometimes they make mistakes. If cleared onto a runway, look down the final approach course to see if someone is being landed on top of you. Look down the runway to see that the last guy is clear and no one is trying to cross the active. In flight, if an instruction doesn’t make sense, ask the question. Don’t blindly follow the instruction if that voice in your head is telling you that something is not right. Once cleared to land, check to see that the landing runway, and all crossing taxiways and runways, really is clear.

In an emergency, the insurance company owns the aircraft

If an airline crew is forced to land off airport, or on the airport with damage, the crew shouldn’t care about is whether the aircraft is going to get damaged. The crew is thinking: “how can I save my life and the lives of my passengers and crew?” Light aircraft owners often feel that the aircraft is a part of their family. We don’t want to see it get hurt, and we try to save it. The moment the engine quits, the fire breaks out, or something else extreme happens, think: “The insurance company owns this airplane now. I am going to sacrifice THEIR airplane as much as I need to in order to keep us alive.”

By applying these and other “big aircraft” concepts to your normal, habitual procedures, there is less of a risk of you being the one held responsible at trial, and your flying will be much safer.

    For the purposes of this article, a “Type Certificate” is the document the FAA approved from the aircraft manufacturer detailing exactly what components and materials would be used, and how exactly they were all put together, to make the certified aircraft. The Type Certificate may only be amended by an FAA: a Supplemental Type Certificate (STC), a major alteration form (Form 337), a “field approval”, or, in some cases, a logbook entry (for instance compliance with an Airworthiness Directive). All of these forms have one thing in common: they all represent some form of FAA “approval” of what has been done. Even if the aircraft is perfectly safe, without the FAA’s approval, the FAA believes that it does not comply with its Type Certificate.

    This matter was recently taken to a ridiculous extreme by the FAA. A Cessna 182 had a taxiing incident with a larger aircraft. The thin aluminum light guard that prevents the wingtip strobe from flashing in the pilot’s and passengers’ eyes was bent. There was no other damage to the 182. The pilot inspected the wing for damage, and bent the guard back into its original position. He took off without getting FAA approval for what he had done. The FAA violated him, and the violation was upheld by the NTSB. The reasoning boils down to the pilot, not having been certified and approved by the FAA as an A & P mechanic, could not be trusted to know that the bent light guard was not a sign of more serious damage. Even though there was no dispute that the aircraft was “safe”, the FAA said that the aircraft had not been certificated with a bent light guard, and the “fix” used by the pilot had not been approved by the FAA; so the pilot should have either gotten a ferry permit from the FAA, or should have had an A & P mechanic at least return the aircraft to service with a log entry.

    The FARs require that every component of an aircraft be operating prior to every flight – light bulbs, upholstery clips, lavatory sinks, coffee pots, standby instruments, etc. If it is a part of the certificated aircraft, then it is supposed to work.

    In large aircraft operating under Part 135 or Part 121, it is common to have a Minimum Equipment List (MEL), which has been approved for each particular aircraft by the FAA, which states what items are real “no go” items, and other items for which repair may be delayed while the aircraft continues on its mission. Sometimes there are special requirements for inoperative components which provide that the aircraft can only be operated with an inoperative component if several other conditions have been met. Unless you have an FAA-approved MEL for your aircraft, however, you are not entitled to operate the aircraft with any missing or inoperative components. And, if a component is NOT included on the MEL, you may not operate the aircraft legally without an FAA issued ferry permit, even if other aircraft of the exact same type have an FAA approved MEL which tells their pilots under what conditions those identical aircraft can be operated with the same inoperative component.

    Non-turbine aircraft operating under Part 91 have two alternatives to getting a ferry permit when something is not exactly the way it was when it rolled out of the factory door: 1) make, and obtain approval for, an MEL; or 2) follow the procedure in FAR 91.213(d). 91.213(d) gives the pilot the ability to make a decision about the need for any particular component. The pilot must: make a “determination that the inoperative instrument or equipment does not constitute a hazard to the aircraft”; deactivate and placard the inoperative component as “INOPERATIVE” and; make an entry in both the airframe log and the pilot’s log noting the pilot’s determination and explaining what was done. (A properly-certificated mechanic can also do the same thing.) There are two exceptions to this procedure: the inoperative component cannot be 1) “required for the specific flight operation being conducted” and 2) cannot be “required to be operational by an airworthiness directive”. If you are going to use this procedure, follow the regulation to the letter, dotting the “I’s” and crossing the “T’s”.

    There is one great case for pilots which states that not every dent, scratch, or missing screw is a deviation from the type certificate. Unfortunately, the case does not tell us when a missing screw is important, or where or how deep a dent has to be, before it is an “airworthiness” issue. If you think that this should just be a “common sense” issue, remember two things: 1) you are dealing with the FAA, and 2) it is amazing how uncommon “common sense” is. The object of this article is NOT to tell you how you can spend $20,000.00 in legal fees defending your position to the FAA and to the NTSB and maybe win if they agree with you. The object is to warn you about a trap in the regulations and to give you some tools to help you avoid becoming a victim.

Over the last few months, the FAA, especially in the Southwest United States, has been cracking down on what they consider to be the flying of un-airworthy aircraft. This appears to have become a “special emphasis area” for the local FSDOs. In order to avoid falling into this trap, you should remember what I wrote a few months back: the FAA considers ANY deviation from the original type certificate which is not covered by a 337 or an STC, to mean that an aircraft is not airworthy and cannot be flown until it is either brought into compliance with appropriate documentation that the modifications to the aircraft have been inspected and approved by the FAA, or are being flown in a known un-airworthy condition under the FAA-issued provisions of a “Special Airworthiness Certificate”, more commonly known as a “Ferry Permit”.

    There seems to be a feeling among many pilots that Ferry Permits are hard to get. That is generally not true. In some cases, it can be as simple as faxing an application for a Special Airworthiness Certificate to the local FSDO, calling one of the inspectors, and getting a signed-off ferry permit by return fax. Of course, if your airplane has a problem that can’t be fixed on-site on an evening or a weekend, you may be stuck for a while (flying at night with an airplane that isn’t up-to-snuff isn’t a real good idea anyway).

    There are also times when the FAA Inspector will require a physical inspection of the aircraft before determining whether to issue the ferry permit at all, or under what conditions the permit will be issued. Sometimes, the FAA will even require the manufacturer or an engineer, or both, to provide data which shows that the aircraft will be safe to fly for the ferry flight. For example, if a fuel truck backs into the leading edge of a wing, the FAA may require a detailed inspection of the area of the “crunch” to make sure that the wing still has reasonable aerodynamic properties and structural properties, that it won’t leak fuel, that electrical wiring may not have been dislodged, etc. If a local A&P can’t render a competent opinion on these issues, the Inspector may call in the big guns. This can result in some expense and in some “downtime” for aircraft and crew; but, especially if YOU are the guy (or gal) that is going to be strapping that aircraft on for the flight to the eventual repair facility, you will appreciate the extra piece of mind that the review will give you.

    On the other hand, if you have a broken piece in a gear retraction mechanism, and you plan simply to fly the aircraft with the broken part removed or taped out of the way and the gear down, the FAA Inspector may not even need to see the aircraft. Similarly, if you buy an aircraft that has been out of annual for a few months, but checks out fine, the Inspector may just issue you the paperwork and let you be on your merry way to your home mechanic who will perform the new annual inspection.

     In general, the FAA treats ferry flights very conservatively. They are usually required to be conducted under day, VFR conditions only; with only minimum required crew aboard; only to a designated airport; and with such other safety provisions as may make sense under the circumstances.

     Some quick cautionary notes, however: If you go to the trouble to get the ferry permit, make sure that you read and understand it. Fly ONLY to the destination listed on the ferry permit. Do not deviate from the restrictions listed on the certificate. Make sure that you have the certificate on board when the aircraft is being operated. If you are going to leave the aircraft somewhere for repairs, remove the Standard Airworthiness Certificate from the aircraft and give it to the aircraft owner for safekeeping. Place the Ferry Permit in plain sight so that any other pilot that is asked to fly the aircraft is aware that flight is subject to specific limitations. Once the aircraft has been brought back into conformity with its type certificate, place the Airworthiness Certificate back in the aircraft. I have had too many cases of pilots who have been asked to fly an aircraft that they didn’t know was operating on a ferry permit and was otherwise un-airworthy.

~ Charles Morgenstein ~

Many buyers seem to believe that they can avoid sales tax by forming a corporation, usually in Delaware, and having the corporation take title to the aircraft. The bad news is that this does not protect you from sales tax. The even worse news is that it may also cause your aircraft registration to be invalid, your aircraft being required to be operated under Part 135 of the Federal Aviation Regulations, and Federal Excise Tax being due on trips you make in the aircraft.

    As the states have been getting less and less income, they have tended to focus on unpaid sales taxes as a source for getting quick infusions of cash. The best place for the states to look is at “big-ticket” items, like aircraft and yachts. With advances in technology, it is easier than ever before for the states to find out when an aircraft has changed hands. In fact, the FAA actually sends each state a listing of the aircraft registered each month with addresses in that state.

    Since the Revenue Departments of the states are aware that aircraft may be registered in a state for the sole purpose of avoiding sales tax in the state where the aircraft is actually based, each state has composed teams of inspectors whose job is to go from airport to airport, and from fly-in community to fly-in community, logging aircraft that are on the ramp and in hangars. Some states, like Florida, if they see the same aircraft at the same airport on more than one visit simply presume that the aircraft is based at that airport and send a tax bill for “use tax’ (which is often the same amount as the sales tax would have been) and put the burden on the registered owner to prove that the aircraft is actually based out of state.

    The states also place substantial penalties on the failure to have paid taxes on a timely basis, so, in addition to the time, aggravation and expense of satisfying the state’s official inquiries, you are at risk for large penalties and interest payments if the state determines that you deliberately failed to pay the tax that was due.

    Many aircraft owners also feel that they can be protected from taxes by the corporate form of owner-ship. However, the owner of the corporation must be able to show that the corporation has some actual corporate purpose to benefit from the corporate veil. More importantly, the FAA has a different way of looking at corporate ownership of an aircraft. The FAA says that unless the corporation that owns the aircraft has a real business purpose other than just owning and operating the aircraft, such that the use of the aircraft is merely “incidental” to the business of the company, the company is actually engaging in the “commercial” use of the aircraft since it is serving no other purpose other than providing transportation by air to members of the corporation. Therefore, the FAA argues, the aircraft must be operated pursuant to the requirements of Part 135 of the Federal Aviation Regulations, and each failure on your part to comply with the requirements of Part 135, can subject you to a “civil penalty” in the amount of up to $11,000.00 per violation.

    The FAA also has a strict “citizenship test” which it uses for corporations. Unless the President of the corporation, AND at least two-thirds of the other officers and directors, AND at least 75% of the shareholders of the corporation are United States citizens, the corporation will NOT be deemed to be a “citizen” for registration purposes, and the FAA, DOT and Customs will all deem the N registration of your aircraft to be illegal, which can result in seizure and forfeiture of your aircraft, large fines, and even the possibility of jail time.

    There are ways to minimize the exposure to sales taxes, but they require complex planning prior to the closing of the sale. For most general aviation transactions, the most cost-effective thing to do is to find out what the taxes are and to pay them when they are due, rather than to try to avoid or minimize them. If a substantial amount of savings might be due, then consulting a good aviation attorney or accountant might be a very wise investment. But you should do this when you START the process of buying an aircraft, NOT when you are a day or two away from closing, as the process of minimizing these taxes is complicated and takes time.