A Publication of The Florida Bar Aviation Law Committee To Promote Education in the Florida Aviation Community

Volume I, Issue 3 Florida Aviation Law Journal August 2008

The Pilot in Command and the FARs: The Buck Stops Here (Almost Always)1 Raymond C. Speciale2 and Brett D. Venhuizen3 The Federal Aviation Regulations (FARs) command for the flight. For Part 135 flights, make it clear—the pilot in command of an the 135 certificate holder must designate IN THIS ISSUE: aircraft is directly responsible for, and acts a pilot in command and “a second in com- as the final authority as to, the operation of mand”8 for flights that require two pilots.9 Read Back...... 2 that aircraft.4 However, the regulations are Once designated, the pilot in command of a FAA Proposal on often silent on several significant questions Part 135 flight remains the pilot in command Registration of Aircraft.....4 that frequently arise in the context of pilot in at all times during that flight.10 For Part 121 command responsibility. First, who is the flights, the minimum pilot crew is two pilots Airport “Through the Fence” operations and pilot in command when more than one pilot and the Part 121 certificate holder must Residential Airparks occupies the cockpit? Also, is the pilot in designate one pilot as pilot in command and at Publicly Funded command responsible when a qualified and the other pilot as second in command.11 Airports...... 5 capable second in command commits an er- For operations under Part 9112 of the ror? Is the pilot in command responsible for FARs, the question of who is pilot in com- knowing whether his aircraft is being oper- mand can be simple in some cases and ated with any latent defects that might impact more complex in others. In circumstances the aircraft’s airworthiness? Can more than where a pilot flies without another pilot, one qualified pilot in the cockpit be held re- either solo or with passengers, that pilot is sponsible for FAR violations? The purpose obviously acting as the pilot in command.13 of this article is to explore these questions However, the situation can become a bit and provide guidance for those faced with murky under certain circumstances. The the question of pilot in command responsibil- cases where controversy over who has pi- ity under the FARs, and, specifically, in the lot in command responsibility has typically Editorial Board: context of Federal Aviation Administration arisen in the following Part 91 situations: (FAA) enforcement proceedings. S. V. (Steve) Dedmon, 1. Flights where a certified flight instructor Editor-in-Chief I. Who is the Pilot in Command? (CFI) is in the cockpit;14 In most cases it is relatively easy to de- 2. Two pilots operating an aircraft with dual- termine the person responsible as pilot in controls when both pilots are qualified Committee Officers: command of an aircraft. The FARs gener- to operate the aircraft as pilot in com- Harry Lee Coe IV ally define the term “pilot in command” as mand;15 Chair the person who (1) has final authority and 3. Flights simulating instrument meteoro- S. V. (Steve) Dedmon, responsibility for the operation and safety of the flight; (2) has been designated as the logical conditions16 requiring a safety Vice Chair 17 pilot in command before or during the flight; pilot; and, Brian David Burgoon and, (3) holds the appropriate category, 4. Checkrides with FAA examiners.18 Board Liaison class, and type rating, if appropriate, for the conduct of the flight.5 A. CFI in the Cockpit For commercial flight operations requiring The certified flight instructor (CFI) carries Part 1216 or Part 1357 certification, the regu- a heavy burden when it comes to the ques- lations require the designation of a pilot in See “Pilot in Command” on page 10  

 “Read Back”

By: Harry Lee Coe IV S.V. (Steve) Dedmon legacy while helping a student realize trappings of plush carpets, brass fixtures, Our June meeting was held at the their aviation aspirations. Also, remem- and fresh mahogany office furniture. Boca Club and Resort in Boca Raton in ber VECTORS always has a page or two Mr. Goldstein (hold holds the Title of conjunction with the bar’s annual meet- or three for memorializing your legal and Secretary, Vice-President, and General ing. As in years past it is that time when aviation related knowledge or experience Counsel of Signature) then spoke of the bar welcomes its new leadership and who better to share it with than your the “Do’s & Don’ts” of contract counsel, and acknowledges the efforts of those fellow committee members and the world and their typical interplay with the refer- who gave so earnestly the past year. for that matter as it is available on the ring entity and in-house staff (Signature Our committee was no different as we Florida Bar website. Otherwise, see you “farms out” a lot of their actual litigation gave a heart felt “Thanks” to Elisabeth in Tampa on September 12, 2008. cases to referral/contract counsel for Kozlow for her dedication and leader- The meeting’s first presentation was a handling). Mr. Goldstein discussed ship. Unless you have “been there-done joint-presentation from Wendy McDowell, acceptable versus objectionable billing that” you cannot get a sense of what it Esq. & Joseph I. Goldstein, Esq., who are practices of referral counsel. For ex- takes to fulfill the responsibilities in posi- both in-house counsel for: “BBA Shared ample some of the “pet peeves” which tions of authority in a committee such as Services, Inc.” (which is in-house counsel Mr. Goldstein commonly encounters ours. For those of you who have, and for: Signature FBOs), entitled: “Taking from contract counsel is failing to keep those of you who will take leadership Your Practice In-House: A Candid Look at him informed of the status and posture of positions, I am sure you can or will, ap- In-House Lawyering.” Wendy discussed the on-going case, and in some instances preciate Elisabeth’s efforts. In that vein, the differences, both professionally and the frustration associated with expending the committee welcomed Harry Coe as personally between being in-house coun- vast resources in defense of a particular Chair and Steve Dedmon as Vice Chair. sel, as she is know and has been for the case, or a given legal position, only to be Unfortunately, I was unable to attend past three (3) years, and being with a informed at a later time, deep into the on- due to a medical emergency that side- private firm , which she did for several going litigation, that the aforementioned lined me for a couple days. I sat out to years, prior to joining Signature. Wendy position was not sustainable, or justified. fly myself down on Friday, but the drive made the point that there exists a mythi- Mr. Goldstein, also indicated that all major to the plane was too uncomfortable, so cal stereotype that in-house counsel are decisions, including the decision to settle the thought of sitting in a confined area “Cush Jobs,” as there is no productivity cases, should be directed and approved without the possibility to “pull over” did measurements, time pressures, or long by him, as General Counsel, prior to be- not bode well for the trip. Besides, had hours. To the contrary, she still works ing entered into by the contract counsel, something happened I would have prob- long days and hours and also takes as he is “The Client,” who expects to ably violated some FAR! However, I am work home with her, and even has to control the litigation and ultimately will happy to report all is well. Before I leave work some weekends. Of course being be looked to pay the settlement and the the leadership issue, should you have in-house, she is a “regular” employee contract attorney’s fees. Finally as to any ideas or suggestions for upcoming who receives a salary and benefits. She billing practices by contract counsel, Mr. meeting topics, speakers, or anything also focuses on an area that she enjoys: Goldstein indicated that bills for “review of a general nature, do not hesitate to “Aviation”- as it is not something a lawyer file” and “joint attorney conferences,” all speak with Harry or I. Consider your help in private practice can typically do exclu- from lawyers of the same firm, looked solicited and encouraged. Also, a special sively. Wendy also related that while she bad, and are typically not reimbursed. He “Thank You” to Harry for taking the time is primarily an “Aviation” attorney, she, as also indicated that pre-approval for long to take notes and giving us an overview in-house counsel also has to deal with or arduous legal research projects, and of the presenters and their topics. employment law issues, hiring & firing, for large court cost expenditures should As a general reminder, as there are a contract negotiations, and other related first be presented and approved by the couple items we need to keep in mind. legal issues. Finally, she intimated that General Counsel, prior to being under- First, as a committee you have probably while generally satisfied with her choice, taken, or incurred. Mr. Goldstein said the seen e-mails regarding contributing to her lifestyle is perhaps only a notch better badge of distinction for contract counsel the Eilon Krugman-Kadi Scholarship fund than it would be, if she was a partner with is if, after concluding a particular matter set up through Embry-Riddle Aeronauti- a private firm, and noted the trappings to the satisfaction of the client (i.e.- him- cal University. If you have not contributed of her job as in-house counsel were not self, as General Counsel for Signature), it is a way to celebrate Eilon’s life and the typically fancy, “silk-stocking” law firm Continued on next page

 “Read Back” From previous page referral of additional files/cases to the major, international airports KPBI, KMIA, study obtained by NACTA through the contract attorney and as such constitutes and Ft. Lauderdale/Hollywood Interna- Freedom of Information Act, FAA staff a tacit approval of their overall perfor- tional (KFLL). If one of the two TraCons after careful and systematic study over mance and pricing. Conversely, failure should “go-down” or be knocked off line a period of years rejected the proposal to obtain additional referrals is, in some by a major storm, or other disaster such they now champion. There is legislative instances, a surreptitious disapproval as when Hurricane Andrew struck South interest also as several local congress- of the contract counsel’s performance Florida, the other TraCon could step in men and women are now working with and/or billing practices. to keep the flow of traffic moving which the NATCA to oppose this plan. NATCA The next group of speakers were is exactly what happened in that event in members also intend to approach Florida from the Nation Air Traffic Controllers 1992. Under the current FAA’s proposal, senators Martinez and Nelson, in an ef- Association (NATCA) Local Union Post, they would expect Jacksonville Center, fort to enlist their support in opposition and were of course, active FAA air traffic located over 200 nautical miles to the to this short-sighted plan. The group controllers based at Miami’s International north, to step in and start vectoring and contends much of the cost pressures, Airport (KMIA). The group included Mitch spacing traffic into Miami, Ft. Lauderdale, consolidation, and privatization efforts of Herrick & Jim Marinitti, President of the and Palm Beach. Given the physical the FAA, including the Lockheed-Martin Local NATCA) based at KMIA and Eric constraints of land-lines, line-of-sight flight service debacle, are political ploys, Stein and Veronica Stein from Palm radio and radar obstructions, this could implemented from-the-top-down by the Beach International Airport (KPBI) which prove to be a near futile task, as what Jax appointees of the current Neo-Conser- is located approximately 55 nautical could do would be done “blindly,” without vative Republican administration, bent miles due north of KMIA. Members of the benefit of a true, real-time picture of on blindly adhering to the privatization- the group spoke about the FAA’s pending what was occurring in the skies. Palm at-all costs mantra, notwithstanding the consolidation and merger of the current Beach’s facility however, is and can be disasters which have predictably been Traffic Approach Control (TraCon) cur- linked to the existing landlines and does occasioned when large private, for-profit rently based at and serving KPB, into a have the benefit of the applicable radar companies are handed billions of dollars larger, more expansive facility located facilities governing South Florida, since and thus inherit a virtual monopoly on at the KMIA, as part of an on-going FAA it is much more proximately located. traditional governmental functions. The cost saving, realignment, and consolida- Additionally, there are limited cost sav- group cites, in addition to the flight ser- tion effort. The group unanimously op- ings, as the FAA itself in its own study, vice program, the Florida school voucher posed this merger proposal based upon indicates a modest cost-savings through program and the issues surrounding several factors including: elimination this consolidation effort of around $1M Halliburton supplied services in Iraq as of redundancy (there is currently only per year. Relatively speaking this is examples of a program they hope to two (2) TraCons serving all southeast peanuts in the scheme of the FAA’s bil- avoid regarding air traffic control services Florida’s dozens of airports and three (3) lion-dollar budgets. In an earlier FAA in southern Florida. 

Get in on the “action!

Be a contributor to this newsletter. For more information, or to submit comments and articles, contact Steve Dedmon at: [email protected]

 FAA Proposal on Registration of Aircraft By J. Christopher Robbins, Esq.1

In an effort to keep our clients and with the costs of providing ser- continuing commitment to register and other interested parties in the aviation vices.” The President’s proposal re-register periodically could be a pa- industry informed of regulatory de- for FAA reauthorization included perwork nightmare and one borne by velopments that may affect us all, we language that would provide for a both aircraft owners and the FAA. think you should be aware of the FAA’s charge of $130 for initial registra- notice of proposed rulemaking issued tion and re-registration of aircraft Moreover, historically, aircraft reg- to amend the requirements for the reg- and a $45 renewal fee every three istration has enjoyed permanence istration of aircraft. years after that.3 and convenience, unlike registration of vessels and Basically, all air- automobiles. It craft owners that seems imprudent desire to maintain to upset this es- their registration will tablished prac- have to re-register tice. Finally, we their aircraft within are concerned a specified time pe- that the FAA’s riod. The FAA is pro- proposal, aside posing to terminate from being incon- all certificates for venient, will open currently registered the door to a host aircraft and then to of new fees as- reissue certificates sociated with for those aircraft that their proposed are eligible for reg- required, periodic istration. The new re-registration. certificates will be is- sued with staggered To voice your expiration dates, opposition to this and, once those FAA proposal, terms expire, renew- c o n t a c t y o u r als will be granted Congressman for successive three-year terms. Upon The rationale for this change is an and Senators. Email and phone num- sale of an aircraft, the purchaser will increase in the number of aircraft on bers can be obtained at: http://clerk. have a limited time to complete the the Registry whose owners cannot house.gov/member_info/index.html registration process and reserve the be positively and accurately identified N-number before the certificate is can- in a timely manner. Removing the N- (Endnotes) celed. Upon expiration of a Dealer’s numbers of the unqualified aircraft is 1 Chris Robbins is senior counsel and director of Robbins Equitas. He is a former federal judicial Certificate, the N-numbers of aircraft expected to eliminate a large pool of law clerk to the Honorable Tu M. Pham, United registered on that certificate will be questionable N-numbers. The FAA States Magistrate Judge. Robbins is a cum laude cancelled if application for registration estimates that about one-third of the graduate of the University of Miami School of Law, where he was a member of the University has not been made. 343,000 aircraft currently registered are of Miami Business Law Review. Robbins cur- no longer eligible for registration. The rently serves on both the admiralty and aviation law committees of The Florida Bar. Robbins is a As reported on the AOPA web site: FAA also pointed to increasing user writer, an instrument rated airplane pilot, and a needs for accurate and current aircraft public speaker. He recently prepared a lecture Currently, the one-time aircraft information and concerns of homeland series for Chinese university students on sub- jects including law, American democracy, and registration fee is $5. While the re- security. entrepreneurship. Robbins’ articles have been registration proposal applies the published widely in the U.S. and international press. His work has appeared in the New York $5 fee to its initial registration and We disagree that this is the best Times, Miami Herald, Hong Kong Apple Daily, re-registration and subsequent method of achieving these objectives. If Tampa Tribune, and other periodicals. He can be contacted at Robbins Equitas 2639 Dr. MLK renewals, the agency also makes the FAA is interested in purging the rolls Street North, St. Petersburg FL. 886/862-6878 it clear that it wants to increase of obsolete N-numbers, a simple letter or e-mail at www.aviation-law.org. the fees.2 According to the pro- to owners, which requires a response 2 www.aopa.org/whatsnew/regulatory/reregis- posal, “one of the FAA’s goals for by return mail, would be preferable. tration.html, accessed on July 12, 2008. 3 Id. its pending reauthorization is to By contrast, the FAA’s proposal will  match FAA funding more closely be costly and time-consuming. The

 Airport “Through the Fence” operations and Residential Airparks at Publicly Funded Airports1 By Bill Dunn2 Over the past several years, mem- What is a Through the Fence benefit of the public does not im- bers have contacted the Association Operation? pose any requirement for the airport with questions regarding Through-the- Generally speaking, a Through the sponsor to permit ground access fence operations at public use airports. Fence (TTF) operation is defined by the by aircraft from adjacent property.” However, since the General Accounting Federal Aviation Administration (FAA) [emphasis added] Office (GAO) released a report3 critical as any activity or use of real property Through the Fence applies to of the Federal Aviation Administration’s of an aeronautical or non-aeronautical PROPERTY and not INDIVIDUALS. In- (FAA) failure to adequately oversee nature that is located outside (or off) dividual activities such as independent airport land use, the FAA has imple- of airport property but has access to aircraft mechanics and flight instructors mented an active pro- are addressed very gram of conducting specifically in the land use inspections FAA Advisory Cir- at obligated airports. cular on Minimum With these increased Standards for Com- inspections, the FAA mercial Activities5. has identified (and continues to discover Types of additional) airports Through that are not following the Fence federal guidance on Arrangements land use. The Associa- T h e r e a r e tion is currently expe- several different riencing an increase types of through in the frequency of the fence opera- issues surrounding tions. The first is land use and through an airpark environ- the fence activity at ment where private publicly funded air- parties construct ports that are grant a residence with obligated to the FAA. aircraft hangar and Association mem- are provided ac- bers are squarely on both sides of this the airport’s runway and/or taxiway cess to the airport infrastructure. The issue. Some favor through the fence system. Airport property is property second is a private party or company access to the airport (most of those are owned by the airport sponsor and that owns land next to the airport with members who own off-airport property) shown on an FAA approved Airport access to the airport infrastructure while members who are located on the Layout Plan (ALP). Through the Fence and constructs facilities with the intent airport paying the airport’s rates and operations occur from property that of providing commercial aeronautical charges, do not necessarily favor off- is immediately adjacent to the airport services to the public. And the third is a airport access to the airport since they but which is owned by corporations, business that owns property adjacent to believe the through the fence operator businesses or private parties. These the airport with access to the airport in- is not adequately funding the airport; properties are not under control in any frastructure but which does not provide especially in cases with the TTF access manner by the airport sponsor. The FAA any commercial services to the public is legally deeded with little or no access officially defines4 Through the Fence and whose aircraft use of the airport is fee paid to the airport. as: “ Through-the-fence operations are incidental to such business. There can be some positives for the those activities permitted by an airport airport and all members with a properly sponsor through an agreement that The Agreement structured and FAA approved access permits access to the public landing Access to the public airport is provid- agreement that provides financial sup- area by independent entities or opera- ed through two different mechanisms. port to the airport. However, the FAA tions offering an aeronautical activity One is what is referred to as “deeded has historically “discouraged” through or to owners of aircraft based on land access.” This means that the adjacent the fence access to a publicly funded adjacent to, but not part of, the airport property owner, when purchasing the airport for a number of reasons. property. The obligation to make an property was granted a real estate airport available for the use and Continued on next page

 Through the Fence deed that very specifically outlined ances. The law also requires the FAA • Keeping good title of airport prop- the property owner’s right to access to submit a report to Congress annually erty the airport from his adjacent property. that lists airports that are not in compli- • Compatible land use Deeded access is a legal right of pas- ance with these federal grant obliga- • Availability of fair and reasonable sage bound by state laws in the state tions and the corrective actions planned terms without unjust discrimination where the transaction occurred. In most to bring the airport back into compliance cases, deeded access does not have with federal grant obligations. This is an • Adhering to the approved airport any fees attached for access to the issue extremely important to AOPA and layout plan airport. It is more of a property “right.” the health of airparks, nationwide. • Self-sustainability Deeded access is also referred to as • Sale or disposal of Federally ac- an easement. Federal Grant Obligations and quired property The second mechanism is through the Compliance Program • Preserving rights and powers an access agreement. This is a legal When the sponsor of an airport that document entered into between the is eligible to receive federal funding • Using acceptable accounting and specific parties much like a lease. under the FAA’s Airport Improvement record-keeping systems These agreements contains the terms Program (AIP) accepts federal fund- • Compliance with civil rights require- and conditions associated with grant- ing, the airport sponsor is required to ments ing access to the public airport. Access execute a contract with the FAA. This Congress has also provided the FAA agreements may or may not have an contract includes thirty-nine (39) Grant with the ability to “protect the federal in- annual fee associated with granting the Assurances – a series of performance vestment” and to ensure that an airport access. Since at least 1989, the FAA metrics – that the airport sponsor sponsor abides by these assurances has actively discouraged through the agrees to abide by in operating the through penalties ranging from with- fence agreements at publicly funded airport. Grant Assurances are codified holding future grants to implementing airports. The FAA Order 5190.6A, also in federal law8 and can be found on the legal action against the airport sponsor known as the Airports Compliance FAA’s web site9. both administratively and in the federal Handbook states as judicial system. The an agency position FAA has a statutory of the subject6 “As mandate to ensure a general principle, that airport owners FAA will recommend comply with these that airport owners assurances.10 This refrain from entering is the FAA Grant into any agreement Compliance Pro- which grants access gram. An overview to the public land- of the FAA Com- ing area by aircraft pliance Program normally stored and can be found on serviced on adjacent the agency’s web property. Exceptions site11. can be granted on a case-by-case ba- Grant sis where operating Obligations that restrictions ensure apply regarding safety and equitable Through compensation for use The Fence of the airport.” The Operations FAA’s policy has not Of the 39 fed- changed. What has changed is a man- Major components of the FAA’s eral grant assurances, in most cases, date from Congress. Grant Assurances include the following the FAA typically focuses on 4 assur- As the FAA has worked to comply subject areas: ances when reviewing Through The 7 with this Congressional guidance and • Prohibition of exclusive rights Fence issues. These include: actively pursue additional airport land • Use of airport revenue use inspections, the agency has identi- Grant Assurance # 5 – Preserving fied a number of publicly funded, public • Proper maintenance and operation Rights and Powers use airports that they believe are in of airport facilities violation of certain federal grant assur- • Protection of approaches a. “It [sponsor] will not take or

 Through the Fence permit any action which would restrict the use of land adjacent to or Use, by allowing and promoting the operated to deprive it of any of in the immediate vicinity of the airport development of a residential airpark the rights and powers necessary to activities and purposes compatible adjacent to the airport.” In some cases, to perform any or all of the terms, with normal airport operations, includ- the development of residential proper- conditions, and assurances in the ing the landing and takeoff of aircraft. ties adjacent to the airport actually grant agreement without the writ- In addition, if the project is for noise creates obstructions to the airport and ten approval of the Secretary, and compatibility program implementation, associated Part 7713 surfaces, airport will act promptly to acquire, extin- it will not cause or permit any change Runway Protection Zones (RPZ) and guish or modify any outstanding in land use, within its jurisdiction, that Obstacle Free Areas (OFA) as required rights or claims of right of others will reduce its compatibility, with respect by the FAA.14 Such impacts have a which would interfere with such to the airport, of the noise compatibility potential negative impact on the full performance by the sponsor. This program measures upon which federal utility of the airport as well as creating shall be done in a manner accept- funds were expended.” potential hazards to air navigation. able to the Secretary.” Since 1982, the FAA has empha- sized the importance of avoiding the Grant Assurance It is important to note that Assur- encroachment of residential develop- #22 – Economic ances apply only to property owned and ment on public airports, and the Agency Nondiscrimination controlled by the airport sponsor. Off- has spent more that $300 million in airport, Through the Fence facilities do Airport Improvement Program (AIP) h. “The sponsor may establish not have the same protections as those funds to address land use incompat- such reasonable, and not unjustly who are located on actual airport prop- ibility issues. A substantial part of that discriminatory, conditions to be erty. As such, rules, regulations and amount was used to buy land and met by all users of the airport as operating requirements do not apply to houses and to relocate the residents. may be necessary for the safe and TTF operators. In actuality, the airport The FAA’s policy on compatible land efficient operation of the airport.” sponsor has no control or power over use adjacent to a publicly funded airport those off-airport properties. Therefore, was further codified legally in a Part 16 i. “The sponsor may prohibit or by not having the ability to control TTF ruling12 issued January 19, 2007. This limit any given type, kind or class operators, the airport sponsor may be Directors Determination, at page 42, of aeronautical use of the airport viewed by the FAA as having subro- ruled: “The FAA generally discourages if such action is necessary for the gated its responsibility. residential airparks adjacent to airport safe operation of the airport or property because such airparks can necessary to serve the civil avia- Grant Assurance #21 – create a compatible land use problem, tion needs of the public.” Compatible Land Use especially with noise compatibility and “It [sponsor] will take appropriate zoning issues, in the future. Grant as- In a number of TTF agreements, the action, to the extent reasonable, in- surance 21, Compatible Land Use, off-airport operators gain access to the cluding the adoption of zoning laws, to requires airport sponsors to take ap- public use airport without paying a fee propriate action, including the adoption to the airport for that access. In most of zoning laws, to restrict the use of land cases, the TTF access has been grant- Notice of adjacent to, or in the immediate vicinity ed by a real estate easement granting of, the airport to activities and purposes the fee-less access. At the same time, Correction compatible with normal airport opera- aircraft operators based on the airport tions, including landing and taking off of property are subject to the airport Regarding “It’s That Time Again” aircraft. The FAA recognizes residential sponsors rates and charges. Lack of article in the April 2008 issue. development adjacent to airport prop- a reasonable fee structure for access Mark Twombly from AOPA rightly erty as an incompatible land use.” to the airport can create economic corrects that the Aqua 1500 floats on The determination went on to state, discrimination against the on-airport Brown’s J3s displace 1500 pounds in relevant part: “In this case, the tenants. Off-airport individuals have of water, not gallons. The certification Respondent not only failed to object an economic advantage in violation of standards for floats require that one float to establishing the residential airpark, grant assurances. support 90 percent of the aircraft gross but also is actively involved in promot- Grant Assurance #24 – Fee weight and, by extension, a pair of floats ing the development. The Respondent and Rental Structure must support 180 percent of the aircraft made airport property available to the “It will maintain a fee and rental gross weight. developer of the airpark….. Having res- structure for the facilities and services idential homes adjacent to the airport is at the airport which will make the airport We apologize for any confusion this may an incompatible land use. The Director as self-sufficient as possible under the have caused. finds the Respondent is in violation of circumstances existing at the particular grant assurance 21, Compatible Land airport, taking into account such factors

 Through the Fence as the volume of traffic and economy accepted any FAA airport development trol of airport operations and allocate of collection. No part of the federal funding; the airport is not bound by any airport cost to all users. TTF arrange- share of an airport development, airport federal surplus property Quit Claim Deed ments also can complicate the control planning or noise compatibility project restrictions – Through The Fence opera- of vehicular and aircraft traffic. for which a grant made under Title tions do not fall under the jurisdiction of In any event, the local FAA Airport 49, United States Code, the Airport the FAA in any manner. District Office (ADO) with oversight and Airway Improvement Act of 1982, However, if the public use airport responsibility for the particular airport the Federal Airport Act of the Airport (whether publicly or privately owned) is should be consulted BEFORE any TTF and Airway Development Act of 1970 obligated to federal grant assurances, agreement is approved or modified. shall be included in the rate basis in then the FAA indeed has legal authority establishing fees, rates, and charges to become involved with the airport spon- Potential Resolution for users of that airport.” sor in working to develop a solution that Strategies to the FAA T h e F e e a n d Policy. Rental Structure First, it is im- assurance require- portant to understand ment has led to a that there is no federal number of lawsuits law, or FAA policy that against airport spon- requires an obligated sors when the spon- airport sponsor to al- sor has attempted low TTF operations. to implement ac- There are a number cess fees for TTF of potential solutions access to a publicly which potentially be funded airport. While implemented to re- the TTF operators solve or mitigate FAA have no right under concerns. It is impor- federal assurances, tant that the FAA play they have brought an active role in seek- suit in state courts to ing any resolution prevent implementa- regarding off-airport tion of charges for access to the publicly access to the airport funded airport. – especially when access was granted 1. Discontinue to them by real estate deed easements. is in the best interest of the airport. airport eligibility for receiving On airport tenants have often been The FAA estimates that there are federal AIP airport development forced to absorb the costs of these approximately 50 publicly funded, grant funding expensive legal proceedings. Portage obligated public use airport that are Probably the most effective strategy County, OH and Addison, TX airports affected by the Agency’s policies on is to withdraw from the AIP develop- are examples. Additionally, in some Through The Fence operations which ment program. However, at that point, cases, on airport tenants have brought covers both residential and commercial all future development projects will fall formal complaints to the FAA under developments on property adjacent to squarely on airport tenants, business FAR Part 16 since they have had to the publicly funded airport. and TTF operators to fund. This is the pay fees that are not levied on TTF In fact, the Agency has indicated case in Oneida County, TN., where operators.15 Additional assurances on numerous occasions that they are Oneida County, the airport’s sponsor, may apply in some situations includ- not opposed to residential airparks at is proposing to develop a high-end ing Assurance# 19 – Operation and private use airports since these air- residential component adjacent to the Maintenance, Assurance# 20 – Hazard ports are operated for the benefit of airport with access to a taxiway on the Removal and Mitigation and Assurance the private owners. At the same time, airport. The FAA has advised the county #23 relating to Exclusive Rights. the Agency has indicated that a public that such a development would jeopar- airport receiving Federal financial sup- dize future federal funding. Instead, the The Application of FAA port is different because it operated for county has chosen to withdraw from Policy on Through the the benefit of the general public. the program. However, since grant as- Fence Operators While not “prohibited” by the FAA, surances normally have a 20-year ob- If an airport is not federally grant the FAA strongly discourages TTF op- ligation from the date of the last grant, obligated – meaning that past obliga- erations because they make it difficult the agency may not accept this option tions have expired; the airport has never for an airport operator to maintain con- as a “final” resolution to a current TTF

 Through the Fence situation. Even so, with the exception of 4. Avoid any expansion of TTF ac- county officials about noise emanating the FAA Policy and assurance relative cess and facilities from the airport and call for restriction to Revenue Diversion, the agency’s The FAA has been willing to “accept”, or curfews at the airport. Another enforcement ability would indeed be although reluctantly, existing residential factor to consider is that some states limited to refusing future grants. airpark developments, as they exist in already have statutes on the books that number and size on a specific date at a discourage or even prohibit residential 2. Establish economic uniformity publicly funded airport provided that the development within a certain distance between TTF and On-airport us- controlling entity enters into an agree- from the airport. ers ment with the FAA that will prevent any Note again that none of this ap- All stakeholders on the airport and expansion of the airpark or add addi- plies IF the public use airport, whether off airport operators should be involved tional housing development from being privately or publicly owned, has not with the airport sponsor in developing built on the property. At the same time, accepted federal grant monies or does a rates and fee structure (including an the FAA will look to the airport sponsor not intend to seek federal airport devel- access fee) that to address any fiscal disparity with on- opment funding. brings economic parity to all parties with airport tenants and to ensure the airport access to the publicly funded airport. At has a level of control of the access. (Endnotes) those airports where no fee is charged 1. This article has been reprinted by permis- for TTF access to the publicly funded 5. Removal of obstacles sion of the Airline Owners and Pilots Association (AOPA) and is reprinted without alteration or airport, work with impacted parties If a TTF facility has been deemed an editing of its contents. to develop a structure acceptable to obstacle to air navigation under the Part 2. Bill Dunn is Vice President of the Airports Di- the FAA. The sponsor of the Portage 77 process, it is likely that the mitigation vision of the AOPA and can be reached by e-mail at [email protected]. For more information County Airport attempted to establish measure has fallen to the airport in the regarding this subject contact AOPA’s Regional comparable fees for TTF operators as form of higher traffic patterns, changes Affairs at 301-695-2200. those already imposed on on-airport to traffic pattern flow or direction, or 3. GAO Report RCED-99-109 tenants. The airport’s efforts were the raising of airport approach minima; 4. Advisory Circular 150/6190-7 (8-28-06) – Min- met with a series of lawsuits in State sometimes to a height that may make imum Standards for Commercial Aeronautical Activities, page 14 court, which upheld the TTF operators an IFR approach no better than a VFR 5. Advisory Circular 150/6190-7 (8-28-06) – Min- “deeded access” to the airport without day. The FAA’s only “legal” recourse imum Standards for Commercial Aeronautical financial compensation. Thereafter, in mitigating the impacts of a hazard Activities page 6 section 1.3 Minimum Standards in order to keep the airport open and determination is to penalize the airport. Apply By Activity 1.3a and 1.3b 6. FAA Order 5190.6A, October 1, 1989 at sec- solvent, the sponsor implemented a Any off-airport development should tion 6-6 paragraph d – Agency Position Airport Use Fee based on size of air- comply fully with the obstruction evalu- 7. AIR-21 (HR 1000) section 737. (Public Law craft and number of annual operations ation process and not pose a safety 106-181) and codified as USC Title 49 § 47131 broken into two Categories. An on air- hazard or hazard to air navigation to 8. United States Code (USC) Title 49 § 47107 port tenant brought a formal complaint other aircraft operating at the airport. (a) 9. http://www.faa.gov/airports_airtraffic/airports/ before the FAA claiming economic aip/grant_assurances/ 16 discrimination. The FAA upheld the 6. A change in federal law covering 10. See 49 USC § 40101, 40103(c), 40113, validity of the fee as reasonable. FAA Grant Assurances.17 40114, 46101,46104, 46105, 46106, 46110, Changes to the FAA grant assur- 47104, 47105(d), 47106(d) and 47106(e) 11. http://www.faa.gov/airports_airtraffic/airports/ 3. Modification of access agree- ances would likely be met with some airport_obligations/overview/ ments and/or deeded access significant challenges especially relat- 12. M. Daniel Carey & Cliff Davenport v. Afton- easements ing to Assurance #21 – Compatible Lincoln County Municipal Airport Joint Powers Modify any existing agreements or Land Use. If changes were made to Board Docket No. 16-06-06 easements that provide access to the allow residential airpark development 13. 14 CFR Part 77.25. Civil airport imaginary surfaces. These surfaces exist to provide an public airport so that TTF operators are adjacent to a publicly funded airport, obstruction free environment around an airport. legally bound to follow all airport pro- such change would severely hamper or Penetration of these surfaces by an obstruction cedures, rules and policies to include even potentially eliminate the agency’s may adversely affect the airport by reducing usable runway length, increasing instrument Minimum Standards. The application ability to object to an airport sponsor’s approach minima, etc. of a uniform “fee for access” to bring approval of a residential development 14. FAA A/C 150/5300-13 Change 10 – Airport fiscal parity to both on-airport and TTF in close proximity to a public airport that Design Handbook operators would be a part of these did not have airport access. 15. See FAA Docket No. 16-06-01 and Docket No. 16-06-06 modifications. Additionally, residential One of the biggest challenges 16. See FAA Docket No. 16-05-14 R/T-182 v property sales should include avigation to public use airports is an airport Portage County Regional Airport Authority easements recorded on property deeds sponsor’s approval of residential de- 17. United States Code title 49 § 47107 provides named in favor of the airport. velopment near an airport. In most the legal basis for FAA Grant Assurances cases, when these are constructed,  the new residents complain to city and

 Pilot in Command

Continued from Page 1 certificates for careless and reckless manipulating the controls at a time of operations and for operating an aircraft necessity while under the influence of tion of who is pilot in command of an while intoxicated.26 The facts of the alcohol.33 aircraft. The National Transportation case indicate that Ridpath was instruct- The question arises as to whether Safety Board (hereinafter NTSB or ing a rated pilot while the pilot was the Board is de facto imposing a strict the Board), in one of its earlier cases practicing an approach under simulated liability standard on CFIs for all student clearly states that regardless of who is instrument conditions.27 Ridpath did errors. The answer appears to be “no.” manipulating the controls of an aircraft not hold a medical certificate.28 Dur- In Administrator v. Strobel,34 the flight during an instructional flight, the CFI is ing the practice approach, the aircraft instructor was asked by an experi- always deemed to be the pilot in com- crashed approximately 75 feet short of enced pilot to accompany the pilot on a mand.19 The Board even goes so far to the intended runway.29 Just before the “check-out” ride in an aircraft type that state that it makes no difference what crash, Ridpath pulled back on the yoke the pilot had never flown before.35 The level of proficiency a student may have of the aircraft in an attempt to either check-out was not legally necessary attained, the flight instructor is still the avert a crash or minimize its impact.30 because the pilot had already been pilot in command.20 The Board’s ra- The NTSB held that the action taken by checked out in an aircraft of similar cat- tionale is that a flight egory and class.36 instructor’s function During the flight, on an instructional the pilot applied full flight is to teach.21 power after a touch- If he or she allows and-go landing and the flight to enter a then, inexplicably situation that com- and without any promises safety, the warning, reduced CFI has breached his power and jammed or her duty as pilot in on the brakes of the command.22 aircraft with only Although the gen- 300 feet of run- eral rule is fairly clear- way remaining.37 cut, there are several The airplane could cases that demon- not stop in the re­ strate how difficult it maining runway, can be to apply the broke through a rule in all situations. fence, and contin- What happens when ued for another 400 there are two instruc- feet until stopping in tors on board for an a corn field.38 The instructional flight and NTSB held that the one of them expressly and unequivocally Ridpath to avoid the accident demon- flight instructor was clearly acting as a declares herself to be the pilot in com- strated an “involvement in the manage­ flight instructor during this flight even mand? The NTSB responded by holding ment of the aircraft that [was] sufficient though his presence was not required.39 that the instructor who declared herself to support the [careless or reckless] However, the Board refused to impose to be the pilot in command is indeed allegation.”31 Interestingly, a separate strict liability on the flight instructor.40 the pilot in command.23 In this case, concurrence by one Board member The Board reasoned that although flight the Board determined that “any certified indicates that “[a]lthough I agree with instructors are expected to do every- pilot,” let alone an experienced instruc- the result in this case, I have a serious thing possible to keep a flight safe, they tor, such as the respondent, would have problem to the extent that the analysis are not to be held strictly liable for the constructive knowledge of the term “pilot suggests that respondent has violated outcome of a flight.41 in command” and would understand the the FARs because he manipulated the B. Two Qualified Pilots and import of taking responsibility for the controls in an emergency attempt to Dual Controls flight as pilot in command.24 reduce the severity of the accident.”32 One common scenario in light gen- Another situation that raises ques- The concurrence goes on to reason eral aviation aircraft are two qualified tions is where the certified flight instruc- that the problem was not that the flight pilots in an aircraft cockpit with dual tor does not hold a current medical instructor manipulated aircraft controls controls. This raises some interesting certificate. In Administrator v. Rid- while under the influence, but that the questions: Who is the pilot in command path25 the FAA sought the revocation flight instructor placed himself in a under these circumstances? Can a of Ridpath’s pilot and flight instructor situation where he was responsible for pilot who believes that he or she is on

10 Pilot in Command

the aircraft specifications and board a light general aviation aircraft as the employee executed a go-around procedures require two pilots. a passenger only, be held responsible with resulting damage to the aircraft’s [Thomas], as pilot and [the other for FAR violations that arise from that propeller and antennae which both pilot’s] employer, could have cho- flight? This situation can easily arise struck the runway.55 The employee sen to have no role in the aircraft’s in a variety of contexts involving light returned for a second landing attempt operation, could have clearly aircraft. There are many situations and landed without further incident.56 told [his employee] that he was where a pilot (and even a non-pilot) The FAA charged Thomas with the PIC, or could have stated his might help with non-flying chores such careless and reckless operation of an intent to perform certain functions as radio communications, map-reading, aircraft57 and the NTSB affirmed the and no others.63 and changing frequencies on naviga- FAA’s charges, suspending Thomas’s tion aids.42 In fact, the FAA and industry pilot certificate for fifteen days.58 One While this guidance might be helpful, experts encourage single pilots to make of the many interesting aspects to this it may still be impractical in most cases use of the resources (both human and decision by the NTSB is the Board’s involving light aircraft requiring only a machine) available to lighten their work- stated understanding that Thomas single pilot. It may be argued that this load.43 was not being punished as if he were type of ruling may even produce a chill- In a 1995 decision, Administrator the responsible pilot in command.59 ing impact on air safety because it will v. Thomas,44 the NTSB responded to Instead, the Board stated that the sanc- make “second pilots” think twice before these questions in a somewhat mud- tion against Thomas stemmed from his offering any assistance during a flight. dled way. But, the case still provides “own behavior.”60 The Board clarified Nonetheless, this decision does in fact some valuable guidance. The Thomas in its decision that simply because “an focus attention on this rather murky case came about as a result of an aircraft requires only one pilot does not area of the FARs and the need to be incident involving a close shave with support a conclusion that a second pilot as clear as possible when determining a barely-avoided, gear-up landing.45 (or even a non-pilot) participating in the who is responsible as pilot in command The aircraft involved was a Swearin- inflight operations is not accountable of an aircraft operation.64 gen Merlin II, a twin engine turboprop for his own actions.”61 The Board ex- C. Safety Pilots airplane certificated for single-pilot pressly agreed with the decision by its Pilots regularly operate in simulated operations.46 administrative law judge that it was not instrument conditions in order to train In this case, Thomas was the em- necessary to determine that Thomas as instrument rated pilots or maintain ployer of the pilot in command who was the pilot in command.62 skills as instrument pilots. While one was doing the flying from the left seat This decision is problematic at best pilot is “under the hood,” the FARs re- of the aircraft cockpit.47 On the day of because it fails to clarify how a sec- quire the other pilot to act as a “safety the incident in question, the airplane ond pilot or even a non-pilot could be pilot.”65 Two questions frequently arise was being flown to pick up a potential held liable for the careless or reckless in this context. First, who is the pilot in purchaser for a demonstration flight.48 operation of an aircraft when they are command while the aircraft operates in Thomas claimed that he took along his not legally responsible (or in the case simulated instrument conditions—the employee to act as pilot in command of the non-pilot, not capable of legal pilot “under the hood” or the safety because he did not assess himself to responsibility) for the conduct of the pilot? The second question is what be current in the aircraft.49 Thomas flight. However, notwithstanding this qualifications, if any, does the safety and his employee took turns flying on unanswered question, the Board does pilot need to possess? the different legs of the flight.50 At the provide some helpful guidance when it FAR Section 91.109(b) does not time of the incident in question, Thomas comes to the question of determining directly respond to the question of who was the non-flying pilot who was work- the pilot in command when you have acts as pilot in command of the flight ing radios, calling checklists, some- two qualified pilots in a cockpit with dual during simulated instrument conditions. times working the flaps and propeller controls. The Board stated: However, FAA interpretations indicate controls on the aircraft, and calling out [W]e think it [is] important to point that if a pilot who is not instrument rated 51 altitudes. out that [the employee pilot’s] is flying an aircraft under a hood and The near gear-up incident took perception that [Thomas], who simulating instrument flight under in- place while the aircraft was executing was qualified in the aircraft, was strument flight rules (even while operat- an instrument approach.52 During an the PIC is not an unexpected as- ing in visual meteorological conditions), initial attempt to land the aircraft, the sumption and that good cockpit the safety pilot must act as pilot in com- employee who was flying the aircraft crew management requires that mand and must also hold an instrument lowered the gear handle, but the gear two pilots in a cockpit agree prior rating appropriate to the aircraft being did not deploy.53 As the employee be- to the flight as to the duties of operated.66 In such circumstances, the gan his landing flare, Thomas noticed each. The need for such agree- safety pilot is considered pilot in com- that the cockpit’s gear-down lights were ment is not limited, as [Thomas] mand and must hold a current airman argues to those situations where not lit.54 He alerted his employee and medical certificate.67

11 Pilot in Command

Relevant FAA interpretations indi- a special status by virtue of not being representation made to him by any cate by inference that if the pilot “under considered a passenger or a crewmem- member of ground or flight crews.81 the hood” is current and instrument ber with responsibility for the conduct This general approach to the rea- rated, that pilot can serve as pilot in of the flight. sonable reliance defense continued for command.68 Alternatively, if instrument II. Pilot in Command many years until the NTSB articulated a flight is being simulated under visual Responsibility for Aircraft far more specific rubric for applying the flight rules, the pilots could agree prior Operations and Defenses defense in Administrator v. Takacs.82 In to the flight as to which pilot will serve While it is sometimes difficult to iden- the Takacs case, the Board established as pilot in command. Further, as long tify the pilot in command, the duty and a significantly narrower standard that as the safety pilot does not act as pilot responsibility of the pilot in command is is still in use today. Specifically, the in command, he or she is not required pretty clearly spelled out in the FARs. Board articulated the new standard as to comply with the currency require- The FARs plainly state that the pilot in follows: 69 ments of FAR Section 61.57. command of an aircraft is directly re- As a general rule, the pilot-in- D. Checkrides sponsible for, and is the final authority command is responsible for the As discussed above, when a student pi- as to, the operation of that aircraft.76 overall safe operation of the air- lot is undergoing training, the student’s The rule appears to leave little room craft. If however, a particular task certified flight instructor is considered for discussion—the buck stops with the is the responsibility of another, if the pilot in command during every dual pilot in command. If anything untoward the PIC has no independent obli- flight.70 This is most obviously the case occurs during a flight or if any rules gation (e.g., based on operating with a student who has not yet obtained are violated, it is the pilot in command procedures or manuals) or ability a private pilot certificate.71 But what who will need to atone. Despite the to ascertain the information, and happens when a student pilot or can- sweeping language suggesting a strict if the captain has no reason to didate for a higher certificate or rating liability standard, there are three widely question the other’s performance, then and only then will no violation shows up for a checkride with an FAA recognized exceptions to the rule. be found.83 inspector or designated examiner? A. Reasonable Reliance FAA regulations tackle this issue Defense As indicated, the new test requires directly. First, the regulations state that The first exception is known as the three ingredients in order for the Board an examiner represents the FAA for reasonable reliance defense. This to consider the reasonable reliance purposes of administering a flight exam defense does not have its roots in the defense: to determine an applicant’s fitness to regulations. It emanates from NTSB 1. The task is the responsibility of an- hold a certificate or rating.72 Next, the Board (and several earlier Civil Aero- other;84 regulations expressly state that the nautics Board or CAB77) decisions. 2. The PIC has no independent obli- examiner is not the pilot in command of Essentially, the reasonable reliance gation to ascertain the information; an aircraft during a checkride unless the defense permits a pilot in command to and, examiner agrees to act in that capacity avoid liability if he or she reasonably through prior agreement with (1) the relied on a second in command who 3. The PIC has no reason to question applicant or (2) a person who would errs. the performance of the crewmem- otherwise act as pilot in command of From the earliest CAB cases, it was ber. the flight or a portion of the flight.73 recognized that a pilot in command of In subsequent cases, the Takacs This raises another question—if the a transport aircraft is not necessar- test has made it significantly more dif- examiner is not pilot in command, is ily accountable for the failure of crew ficult to employ the reasonable reliance he or she considered to be a passen- members where it is shown that his defense. In Administrator v. Doreen,85 ger on board the aircraft? If so, that reliance on those crewmembers was the Board concluded that the reason- might make a checkride for a private reasonable.78 In later cases, the NTSB able reliance defense could not be pilot applicant or recreational pilot ap- explained the rationale for this excep- applied because the pilot in command plicant illegal because a non-private tion to the general rule for command had an independent obligation to repeat pilot would not have passenger carrying pilots. In Administrator v. Lusk,79 the a clearance out loud (and because privileges.74 The regulations address Board indicates that while the responsi- the pilot in command had the ability this issue by indicating that during any bility for the safe operation of an aircraft to determine the correct clearance).86 checkride, the applicant and the exam- rests with the pilot in command, it must The Board also refused the reasonable iner are not held subject to any other be recognized that the complexity of reliance defense to a pilot in command regulatory requirements or limitations air travel and technology requires that when the Board determined that a related to the carriage of passengers.75 duties be delegated and not individually reasonably prudent pilot would not This provision essentially clears the confirmed by the pilot in command.80 assume that his second in command way for the checkride with a pilot in Therefore, an airline captain could not would correctly enter an altitude.87 An- command and an examiner who has be required to personally verify every other example of the narrowing of this

12 Pilot in Command defense comes in the case of Admin- interpretations indicate that an emer- Board has clearly ruled on this issue— istrator v. Buboltz,88 where the Board gency will generally be recognized in the fact that a pilot does not formally de- found that a pilot in command failed to “unexpected [or] unforeseen serious clare an emergency on his radio does meet the requirements of the Takacs occurrence[s] or situation[s] that require] not preclude reliance on FAR Section test due to the fact that he had reason prompt, urgent action.”96 However, the 91.3(b) as exculpatory.99 However, a to question his first officer’s character- Board has, in certain circumstances, review of NTSB Board decisions makes ization of a clearance, and the opportu- rejected arguments by the FAA that it clear that the declaration of an emer- nity to ascertain whether his flight was there can only be an emergency when gency will be treated as circumstantial cleared.89 The most recent rejection “immediate” action is required.97 The evidence that an emergency situation of a reasonable reliance defense is Board has also been willing to permit truly existed.100 It is also important to found in Administrator v. Jolly.90 In this the invocation of emergency authority note that the Board will not recognize case, the Board was not persuaded when, in hindsight, no abrupt action by the exercise of a pilot’s emergency that the reasonable reliance defense the pilot in command was necessary.98 authority when the emergency is one applied because the respondent did Another issue that frequently arises of the pilot’s own making.101 not establish that he did not have the in cases where a pilot in command in- The FARs also provide for some ad- ability to determine whether his co-pilot vokes emergency authority is the need ministrative burdens on pilots who find had complied with an airspace NOTAM to declare an emergency. The NTSB it necessary to deviate from the rules (notice to airmen).91 Some safety questions arise as a result of the Board’s tighter requirements for utilizing the reasonable reliance de- Building a fense. One prominent point of concern is whether the Board’s legal policy is con- gruous with FAA’s efforts to encourage Better Practice: the use of crew resource management (CRM), which refers to the effective use of all available resources during a flight: “human resources, hardware, and infor- Florida Bar mation.”92 FAA’s push for greater crew coordination and delegation of duties stems from its observations that many incidents and accidents are caused by “poor group decisionmaking, ineffective CLE communication, inadequate leadership, and poor task or resource manage- Quality Speakers ment.”93 Safety experts point out that narrowing the use of the reasonable reli- ance defense could be counterproductive Register Online to safety due to the possibility of regres- sion to the 1970s and 1980s cockpit Convenient Locations environment when a first officer merely served as a back-up and the captain was CLE Certification Credit always assumed to be correct.94 B. Emergency Authority of Audio CDs/DVDs Pilot in Command The second exception is applicable in the case of an inflight emergency. Live Webcasts The FARs permit a pilot in command, when facing an inflight emergency Online 24/7 at FloridaBar.org/CLE requiring immediate action, to deviate from the rules to the extent required to “Legalspan” link meet the emergency.95 The first issue that arises in the use of Visit www.FloridaBar.org/cle a pilot’s emergency authority is clarifying then “Search Calendar” to view scheduled courses. what is meant by the term “emergency” as it is used in the regulations. FAA

13 Pilot in Command due to an emergency. As a general regulations. It is largely based on NTSB explained misunderstanding . . . [does] operating rule, a pilot who invokes FAR Board decisions and interpretations. not excuse a deviation of a clearly trans- Section 91.3(b) must, upon the request Long standing Board precedent mitted clearance or instruction.”115 of the FAA, file a written report of the makes it clear that a pilot’s violation On appeal, the FAA argued that the deviation to the FAA.102 A pilot operat- (typically of an air traffic control clear- NTSB had a statutory obligation to defer ing under Part 121 of the FARs must ance) may be excused if ATC is the to its interpretation (developed as a litiga- abide by more detailed requirements initiating or principal cause of the devia- tion position during the proceedings).116 requiring that: tion.105 This precedent was amplified The Court of Appeals agreed with the Whenever a pilot in command or (and to some extent clarified) in Admin- FAA and reversed the NTSB’s decision 106 117 dispatcher exercises emergency istrator v. Fromuth and Dworak when to exonerate the pilot. It is uncertain authority, he shall keep the ap- the Board explained that even if a devia- if the impact of this case is limited to its propriate ATC facility and dispatch tion from a clearance is initiated by a unusual facts, i.e. that the pilot’s read- centers fully informed of the prog- pilot’s inadvertent mistake, the mistake back was totally blocked. However, it is ress of the flight. The person de- may be excused if after the mistake, worthy to note its holding and the more claring the emergency shall send the pilot takes action that, but for ATC, overarching ruling regarding deference a written report of any deviation would have exposed the error, thus al- to FAA interpretations (even those de- through the certificate holder’s lowing ATC to correct the error.107 As veloped during litigation).118 operations manager, to the Admin- long as there is no evidence that a pilot III. Pilot in Command istrator. A dispatcher shall send misheard a clearance or instruction due his report within 10 days after the Responsibility for Aircraft date of the emergency, and a pilot to carelessness or lack of professional- Airworthiness in command shall send his report ism, a full readback of the misunder­ The FARs clearly state that no within 10 days after returning to stood clearance to ATC that goes person may operate an unairworthy his home base.103 uncorrected by ATC will exonerate the aircraft119 and that “a pilot in command pilot(s) involved.108 The Board plainly of a civil aircraft is responsible for de- Pilots operating under Part 135 of indicates that it views the readback as termining whether that aircraft” he or the FARs have a somewhat similar an intention to ensure that compliance she is operating is in airworthy condi- requirement mandating that anyone with ATC instructions or clearances is tion.120 Further, the pilot in command deviating from a rule in Part 135 due based on an accurate understanding of is required to discontinue a “flight when to an emergency must: the clearance or instruction.109 unairworthy mechanical, electrical, or 121 [W]ithin 10 days, excluding Satur- All of this is somewhat muddled with structural conditions occur.” days, Sundays, and Federal holi- a significant United States Court of Ap- While this regulation appears straight- days, after the deviation, send to peals decision in Garvey v. NTSB.110 forward, it does raise some practical the FAA Flight Standards District In Garvey, the pilot in command of a questions regarding application. A pilot Office charged with the overall Northwest Airlines flight mistakenly may be responsible for determining inspection of the certificate holder thought that an instruction to an Ameri- aircraft airworthiness, but is that liability a complete report of the aircraft can Airlines aircraft was intended for absolute? Can a pilot reasonably rely operation involved, including a his flight.111 The Northwest pilot made on the maintenance logbook entries description of the deviation and a full readback of the clearance to ATC; prepared by FAA certified maintenance 104 reasons for it. however, his transmission was entirely personnel? What if an aircraft begins blocked or “stepped on” because it was a flight in airworthy condition and an In the end analysis, a deviation from made at the same time the American Air- unairworthy condition develops that the regulations due to an emergency lines pilot was making his readback.112 the pilot does not notice? Just how far may be excused. However, the emer- Due to the fact that ATC never received does the pilot in command’s responsi- gency must be genuine and not of the the readback from the Northwest pilot, bility extend when it comes to aircraft pilot’s own making. Additionally, the it could not correct his mistake and he maintenance and airworthiness? pilot invoking emergency authority must went on to deviate from his clearance Some guidance on these issues be prepared to properly document the which triggered a violation.113 is provided by NTSB decisions. The circumstances surrounding the emer- The NTSB was persuaded that the first set of cases address the issue of gency and subsequent deviation. Northwest pilot had done everything he whether a pilot can rely on maintenance C. Controller Error Defense could to ensure a correct understanding entries prepared by FAA certificated The third widely recognized excep- of the clearance he was given. There- maintenance personnel in determining tion is where a pilot reasonably relied fore, the Board dismissed the FAA en- whether an aircraft is airworthy. The on an air traffic controller who makes forcement action against the pilot.114 In second set of cases discusses a pilot’s an error. Much like the reasonable doing so, the Board rejected the FAA’s responsibility to detect and properly reliance defense, the controller error interpretation of its regulations that respond to an unairworthy condition defense does not have its roots in the “[i]nattention, carelessness, or an un- that occurs during a flight.

14 Pilot in Command

A. Reasonable Reliance on an FAA inspector cited the aircraft with often the question that hinges on the Maintenance Personnel several maintenance discrepancies.128 facts and circumstances of a particular As indicated above, before every The pilot informed his employer of the case. In Administrator v. Nielsen,137 a flight, the pilot in command must deficiencies cited by the FAA inspector pilot contended that he appropriately make an assessment of whether his and his employer instructed him to taxi relied on the assumption that a me- or her aircraft meets airworthiness stan­ the aircraft to a repair station that did chanic would have informed him if his dards.122 However, with the complexity all the maintenance work on this air- aircraft was unsafe to fly.138 However, of aircraft systems and the inability of a craft.129 After the pilot was notified that the Board disagreed, reiterating that pilot to make that determination without all necessary repairs had been made, it is the pilot in command’s ultimate assistance from qualified maintenance he performed a preflight inspection, took responsibility, to determine whether his personnel, the question becomes notice that the repairs were made and aircraft is airworthy.139 In this case, the whether a pilot in command can rea- noted in the maintenance logbooks, and Board specifically determined that even sonably rely on qualified maintenance flew a cargo mission.130 Upon his return if the pilot did not know that a broken personnel to determine whether his or to Miami, the FAA inspector was waiting carburetor heat control cable rendered her aircraft is airworthy. Most pilots and for him, and determined that the repair his aircraft unairworthy, he should have lawyers would like to think the answer station had not made all the necessary known that the cable was necessary to to this question is “yes.” repairs.131 The FAA sought a sixty-day getting carburetor heat and, therefore, However, the wording of the FARs suspension of Hanley’s airman certifi- to the safe operation of his aircraft.140 is clear: “No person may operate a cate.132 Ultimately, the Board reduced Thus, at the end of the day, the stan- civil aircraft unless it is in an airworthy the sanction to ten days, preserving a dard that a pilot in command will be held condition.”123 The words of this regu- finding of a regulatory violation against to is whether he knew or reasonably lation were interpreted rather strictly Hanley. Most importantly, the Board should have known that his aircraft was in an early NTSB decision where an noted that the pilot did everything his unairworthy.141 Further, it is important FAA inspector examined an aircraft employer requested and that he could to note that FAR Sections 91.7(a) and approximately one month after its an- reasonably believe, based on his em- 91.7(b) are to be treated differently when nual inspection, finding a number of ployer’s advice, that the repair station analyzing pilot in command responsibil- substandard maintenance items that had properly completed its work.133 The ity. Section 91.7(a) lays out a pilot’s he believed rendered the aircraft un- Board went on to state: responsibility to determine airworthiness 124 airworthy. In discussing that case, We are satisfied . . . that the [pi- before operating an aircraft. Section the NTSB stated: lot] . . . could reasonably assume 91.7(b) addresses pilot responsibility 142 The fact that some of the discrep- that the aircraft was airworthy once an aircraft is in flight. ancies might not have been de­ [on the date of the flight in ques­ B. Unairworthy Conditions tect[ed] on a normal walk-around tion] based on his employer’s Developing Inflight inspection by a pilot prior to flight, advice that the repair facility had In Administrator v. Hedayat-Za- and the fact that the aircraft had completed the work on his own deh,143 the FAA sought the suspension passed an annual inspection . . . observations, during preflight, of Captain Zadeh’s airline transport cer- [a month prior], do not excuse concerning the previously noted tificate for thirty days for operating an respondent from its responsibility, deficiencies. . . . In these circum­ unairworthy aircraft.144 The FAA also as the operator, for the airworthi- stances, we think that the re- charged Captain Zadeh with careless ness of the aircraft.125 spondent did not act imprudently or unreasonably in relying on his or reckless operations endangering the 145 employer’s assurances that the life or property of another. Obviously, the standard created by work had been properly done.134 This case involved an interesting this case is very close to a strict liability set of facts and circumstances. Cap- standard—even though a pilot in com- This case and subsequent cases tain Zadeh was the non-flying pilot in mand might not be able to detect a appear to lead to the application of command of a Boeing 747 passenger maintenance deficiency, they are still a standard of reasonableness when carrying flight from Gardermoen Airport held responsible if a deficiency exists. attempting to resolve a question of in Oslo, Norway, to John F. Kennedy In later cases, the NTSB recon- whether a pilot in command is re- Airport in New York City.146 Due to the sidered this strict liability approach. sponsible for an aircraft’s unairworthy short runway at the departure airport, Perhaps, the first case articulating the condition. In Administrator v. Olsen,135 Captain Zadeh decided to perform a current standard applied is Administra- the Board specifically stated that it was static takeoff in which the brakes of tor v. Hanley.126 In Hanley, the pilot not imposing a standard of strict liability the aircraft are not released until the was flying cargo in a forty-year old when holding that a pilot in command engines produce full thrust.147 Appar- Beech D18 between Miami, Florida, knew or should have known about an ently, the high thrust of the engines and Freeport, Grand Bahama.127 Dur- unairworthy condition.136 Determining caused large portions of the runway ing a routine ramp inspection in Miami, just what a pilot should have known is pavement behind the aircraft to break

15 Pilot in Command up and strike the aircraft, causing IV. Conclusion (Endnotes) substantial damage to the tail section 1. This article is reprinted by permission of the North Dakota Law Review as copyright holder. 148 of the aircraft. At least three flight One of the fundamental legal prin- The article can be found at 83 N.D. L. Rev. 817-36 attendants observed asphalt chunks of ciples in aviation is that the pilot in com- (2007). runway blow up from the ground at the mand is ultimately responsible for the 2. Associate Professor of Law and Accounting, Mount St. Mary’s University, Emmitsburg, MD.; rear of the aircraft and one of the flight safety of the flight. This basic tenet is B.B.A, Iona College, 1981; J.D. Pace University attendants reported hearing “a loud of primary importance whenever a pilot School of Law, 1984. Professor Speciale is a bang as the asphalt hit the fuselage.”149 is faced with an enforcement action by commercial pilot and certified flight instructor. The airport tower controller informed the FAA. 3. Associate Professor of Aeronautical Science, Embry-Riddle Aeronautical University, Daytona the cockpit crew that “you blew up the However, there are occasions where Beach, FL.; B.S. University of South Dakota, asphalt layer in the very south end of it is not so easy to identify the pilot in 1997; J.D. University of South Dakota School the [runway] and there was coming command. While clear identification of Law 2000. Professor Venhuizen has been an active pilot and certified flight instructor since debris after you.”150 However, the focus can be made in most air carrier cases 1990. of the tower was on whether the aircraft where two pilots (a pilot in command 4. 14 C.F.R. § 91.3(a) (2006). tires had been damaged during the and second in command) are required, 5. 14 C.F.R. § 1.1 (2006). takeoff.151 Unaware of the substantial the lines may start to blur when two 6. 14 C.F.R. §§ 121.1-121.1007 (2006). 7. Id. § 135.1-135.443. damage to his aircraft, Captain Zadeh pilots are within reach of the controls 8. As defined in 14 C.F.R. § 1.1 (2006). continued the flight to New York un- in flights governed by Part 91 of the 9. 14 C.F.R. § 135.109(a) (2006). eventfully with the aircraft showing no FARs. Circumstances involving flight 10. Id. § 135.109(b). sign of damage.152 Upon arrival in New instruction, two qualified pilots at the 11. Id. § 121.385(c). Unlike 14 C.F.R. § 135.109(b), the language in Part 121 does not indicate that York, however, it was apparent that the controls, and safety pilots during simu- once designated, the pilot in command remains aircraft was seriously damaged.153 lated instrument flights are some of the as pilot in command throughout the flight. Id. The FAA argued that the information most common situations where we need 12. Id. § 91.1-91.713. provided to Captain Zadeh should have to turn to cases and FAA interpretations 13. Fed. Aviation Decisions, Interpretation 1982-4, I-588, I-591, Letter from J.E. Murdock III, Chief alerted him to the fact that the aircraft for guidance. In the end, it is the person Counsel to The Honorable Thomas N. Kindness was possibly unairworthy.154 The FAA who truly acts as the pilot in command, (May 12, 1992) (on file with the North Dakota Law relied on long-standing Board prece- the person who actually exercises Review). dence found in Administrator v. Dai- command authority, who is indeed the 14. See discussion infra Part I.A. 15. See discussion infra Part I.B. 155 156 ley and Administrator v. Parker. pilot in command. Where a person is 16. Defined in the FAA’s Aeronautical Informa- In both of these cases, the Board held seated in the aircraft, and even whether tion Manual (AIM) as meteorological conditions that a pilot could be held responsible a person lacks qualifications, is not nec- expressed in terms of visibility, distance from cloud, and ceiling less than the minima specified if it was determined that a reasonable essarily relevant in the determination of for visual meteorological conditions. Fed. Aviation and prudent pilot would have concluded who is the pilot in command. Admin., U.S. Dep’t of Transp., AIM Official Guide from available information that the Even though a pilot is deemed to be to Basic Night Information and ATC Procedures (2006), available at www.faa.gov/atpubs. aircraft he was operating was or had responsible as pilot in command or sec- 17. See discussion infra Part I.C. become unairworthy.157 ond in command, there are still defenses 18. See discussion infra Part I.D. In the Zadeh case, both the law that are recognized by regulation and 19. Admin. v. Hamre, 3 N.T.S.B. 28, 31 (1977). judge and the NTSB found that the facts NTSB case law. Most of these defenses 20. Id. did not support a finding that Captain can be characterized as “reasonable reli- 21. Id. 22. Id. Zadeh knew or should have known ance” defenses. The question that often 23. Admin. v. Funk, 6 N.T.S.B. 1016, 1017 that his aircraft had sustained damage needs to be answered in this context is (1989). and become unairworthy. The NTSB whether the pilot reasonably relied on 24. Id. based its finding on the lack of clarity other crewmembers, air traffic control- 25. N.T.S.B. Order No. EA-3736 (Nov. 13, 1992). in communications between the flight lers, maintenance personnel, or his or 26. Ridpath, N.T.S.B. Order No. EA-3736 at 2. 27. Id. at 3. attendants and the cockpit crew and her own observations regarding aircraft 28. Id. at 5 n.4 (noting that under the FARs, a flight the airport tower.158 performance and airworthiness either instructor instructing a rated pilot need not hold a The Zadeh case demonstrates that preflight or during flight. In other cases, medical certificate). It is noteworthy that Ridpath’s lack of a medical certificate would have legally while the pilot in command is ultimately the pilot might be able to establish an precluded him from acting as pilot in command in responsible for discontinuing a flight if emergency authority defense. In these any circumstance. See also Fed. Aviation Deci- unairworthy conditions arise during the cases it is important to determine if the sions, Interpretation 1989-24, I-251 Letter from Donald P. Byrne, Acting Assistant Chief Counsel flight, the pilot in command’s liability is emergency was created by the pilot’s to Bruce J. Brotman (Sept. 13, 1989) (on file with not absolute. It must be found that a own actions. If not, was the pilot’s action the North Dakota Law Review). reasonably prudent pilot either knew, or in response to the emergency prudent 29. Ridpath, N.T.S.B. Order No. EA-3736 at 3. should have known, that an unairworthy and reasonable? In the end, the general 30. Id. at 5. 31. Id. 159 condition existed. rule usually prevails. The buck stops with 32. Id. at 7 (Hart, concurring). the pilot in command—almost always.

16 33. Id. 83. Id. at 9. appropriate.” Fed. Aviation Admin., Air Traffic 34. N.T.S.B. Order No. EA-4384 (Jul. 18, 1995). 84. It is noteworthy that this test has the effect of Control 2-72 (1993). 35. Strobel, N.T.S.B. Order No. EA-4384 at 3. requiring that the crewmember relied upon must 110. 190 F.3d 571 (D.C. Cir. 1999). 36. Id. be a necessary crewmember under the FARs. 111. Id. at 574. 37. Id. at 4-5. 85. N.T.S.B. Order No. EA-4778 (June 30, 112. Id. 38. Id. at 5. 1999). 113. Id. 39. Id. at 6. 86. Doren, N.T.S.B. Order No. EA-4778 at 2-4. 114. Id. at 575. 40. Id. at 7. 87. Admin. v. Nutsch, N.T.S.B. Order No. EA-4148 115. Id. 41. Id. at 6 (Apr. 13, 1994), aff’d, 55 F.3d 684 (D.C. Cir. 116. See 49 U.S.C. § 44709(d)(3) (stating that 1995). 42. Telephone Interview with Bruce Landsberg, the Board is “bound by all validly adopted interpre- Executive Director of AOPA Air Safety Foundation 88. N.T.S.B. Order No. EA-3907 (June 7, 1993). tations of laws and regulations the Administrator (Aug. 12, 2007) [hereinafter interview with Bruce 89. Buboltz, N.T.S.B. Order No. EA-3907 at 2. carries out . . . unless the Board finds an inter- Landsberg]. 90. N.T.S.B. Order No. EA-5307 (August 9, pretation is arbitrary, capricious, or otherwise not 43. Id.; see also NBAA Training Guidelines for 2007). according to law”). Single Pilot Operations of Very Light Jets and 91. Jolly, N.T.S.B. Order No. EA-5307 at 10-12. 117. Garvey v. Nat’l Transp. Safety Bd., 190 F.3d Technically Advanced Aircraft, available at http:// 92. Fed. Aviation Admin., U.S. Dep’t of Transp., 571, 586 (D.C. Cir. 1999). web.nbaa.org/public/ops/safety/vlj/1.php. (last Advisory Circular No. 120-51E, Crew Resource 118. See Martin v. Occupational Safety & Health visited March 19, 2008). Management Training 2 (Jan. 22, 2004). Review Comm’n, 499 U.S. 144, 152-53 (1991) 44. Thomas, N.T.S.B. Order No. EA-4309 (Dec. 93. Id. at 4. (holding that courts must defer to interpretations 14, 1994). 94. Interview with Professor Jim Higgins, Dep’t of the Secretary of Labor rather than those of the 45. Id. at 3. of Aviation, John D. Odegard Sch. of Aerospace OSHRC in split enforcement regime under the 46. Id. at 3 n.4. Science, Univ. of N.D. (May 9, 2007); see also Occupational Safety & Health Act). 47. Id. at 3. Interview with Bruce Landsberg, supra note 40. 119. 14 C.F.R. § 91.7(a) (2006). 48. Id. at 5 n.7. 95. 14 C.F.R. § 91.3(b) (2006). 120. Id. § 91.7(b). 49. Id. 96. Fed. Aviation Decisions, Interpretation 1993- 121. Id. 50. Id. at 3. 10, I-26, I-28, Letter from Donald B. Byrne, As- 122. Id. sistant Chief Counsel, Regulations Division to 123. Id. § 91.7(a). 51. Id. at 5-6. Mr. George K. Schaefer (Apr. 16, 1993) (on file 52. Id. at 3. 124. Admin. v. Golden Eagle Aviation, Inc., 1 with the North Dakota Law Review). The FAA N.T.S.B. 1028 (1971). 53. Id. has also issued guidance on particular types 125. Id. at 1032. 54. Id. of emergencies. See also Fed. Aviation Deci- 126. 3 N.T.S.B. 1773 (1984). 55. Id. sions, Interpretation 1990-39, I-356, I-357, Letter 127. Id. at 1777. 56. Id. from Donald B. Byrne, Assistant Chief Counsel, 128. Id. 57. Id. at 1. Regulations and Enforcement Division to Gerald 129. Id. 58. Id. at 2. L. Naekel (Nov. 23, 1990) (on file with the North 130. Id. at 1777-78. 59. Id. at 4. Dakota Law Review) (discussing major fires and natural disasters); Fed. Aviation Decisions, 131. Id. at 1778. 60. Id. Interpretation 1979-38, I-373, I-374, Letter from 132. Id. at 1774. 61. Id. at 5. Johnathan Howe, Deputy Chief Counsel to Jo- 133. Id. 62. Id. at 8. However, the Board thought it im- seph M. Schwind (July 9, 1979) (on file with the portant to point out that the employee flying the 134. Id. North Dakota Law Review) (pertaining to fuel sup- 135. N.T.S.B. Order No. EA-3743 (Nov. 23, aircraft testified as to his perception that Thomas ply, weather conditions, and icing conditions). was the pilot in command. Id. 1992), aff’d, 14 F.3d 471 (9th Cir. 1994). 97. E.g., Admin. v. Scott, N.T.S.B. Order No. EA- 136. Id. at 4-5. 63. Id. 4003 at 4 (Oct. 27, 1993). 64. See also Admin. v. Deville, 3 N.T.S.B. 3789 137. N.T.S.B. Order No. EA-3755 (Dec. 16, 98. Admin. v. Owen, 3 N.T.S.B. 854, 856-57 1992). (1981); Admin. v. Fields, 4 N.T.S.B. 512 (1982). (1977). 138. Id. at 6. 65. 14 C.F.R. § 91.109(b) (2006). 99. Admin. v. Clark, 2 N.T.S.B. 2015, 2017 n.8 66. Fed. Aviation Decisions, Interpretation 1985- (1976). 139. Id. 12, I-63, I-64, Letter from Carol S. Rayburn, Man- 100. Scott, N.T.S.B. Order No. EA-4003 at 4-5. 140. Id. ager, General Aviation and Commercial Division, 101. See Admin. v. Teti, N.T.S.B. Order No. 141. Admin. v. Yialamas, N.T.S.B. Order No. to John J. Sheehan (June 17, 1985) (on file with EA-3969 (Aug. 12, 1993) at 8; Admin. v. Worth, EA-5111 (Sept. 20, 2004), at 6-7. the North Dakota Law Review). N.T.S.B. Order No. EA-3595 (June 2, 1992) at 7 142. See Admin. v. Naypaver, N.T.S.B. Order No. 67. Id. n.15. EA-4127 (Mar. 17, 1994). 68. Id. 102. 14 C.F.R. § 91.3(c). 143. N.T.S.B. Order No. EA-3918 (June 10, 69. Id. 103. 14 C.F.R. § 121.557(c). 1993). 70. Admin. v. Hamre, 3 N.T.S.B. 28 (1977); see 104. Id. § 135.19(c). 144. Id. also FAA Interpretation 1985-12, supra note 64, 105. E.g., Admin. v. Snead, 2 N.T.S.B. 262 145. Id. at 2; see also 14 C.F.R. § 91.13(a) at I-64. (1973); Admin. v. Nelson and Keegan, 2 N.T.S.B. (2006). 71. However, a student pilot who has soloed may 1900 (1975); Admin. v. Dunkel, 2 N.T.S.B. 2250 146. N.T.S.B. Order No. EA-3918 (June 10, be considered a pilot in command when they are (1976); Admin. v. Smith, 3 N.T.S.B. 85 (1977); 1993) at 2. operating the aircraft on solo training or cross Admin. v. Rolund, N.T.S.B. Order No. EA-3991 147. Id. country flights. (Sept. 27, 1993), reconsideration denied Order 148. Id. at 2-3. 72. 14 C.F.R. § 61.47(a) (2006). EA-4123 (Mar. 17, 1994), aff’d, 57 F.3d 1144 (D.C. 149. Id. 73. Id. § 61.47(b). Cir. 1995). 150. Id. at 3. 74. Id. § 61.89(a). 106. N.T.S.B. Order No. EA-3816 (Mar. 5, 151. Id. 75. Id. § 61.47(c). 1993). 152. Id. 76. Id. § 91.3(a). 107. Fromuth & Dworak, N.T.S.B. Order No. EA- 153. Id. 77. The CAB was the predecessor to the NTSB. 3816 at 6-7. 154. Id. at 4. 78. Admin. v. Dillon, N.T.S.B. Order No. EA-4132, 108. See Admin. v. Atkins & Richards, EA-4078 155. 3 N.T.S.B. 1319 (1978). at 5 n.10 (Apr. 7, 1994) (citing Charles A. Hazen, (Feb. 16, 1994). 156. 3 N.T.S.B. 2997 (1980). 26 C.A.B. 824, 829 (1958)). 109. Admin. v. Fromuth & Dworak, EA-3816 157. Id.; 3 N.T.S.B. 1319 (1978). 79. 2 N.T.S.B. 480 (1973). (Mar. 5,1993); see also FAA Order 7110.65, Air Traffic Control, Section 2-4-3 (Feb. 16, 2006). “If 158. N.T.S.B. Order No. EA-3918 (June 10, 80. Lusk, 2 N.T.S.B. at 481. 1993) at 6. 81. Id. at 482. altitude, heading, or other items are read back by the pilot, ensure the read back is correct. If 159 See id. 82. N.T.S.B. Order No. EA-3501 (Feb. 1, 1992). incorrect or incomplete, make corrections as 

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