FinCEN Marijuana Guidelines Unlikely to Give Banks Much Comfort

On February 14, 2014, the Treasury Department’s Financial Crimes Enforcement Network (FinCEN) issued guidelines for banks wishing to provide services to businesses legally distributing marijuana under state law. The guidelines follow up on the Justice Department’s “Cole Memo” regarding US Justice Department enforcement priorities.

The guidelines, which reiterate the Justice Department’s commitment to enforce “Congress’s determination that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels,” permit banks to engage in transactions with “state-legal” marijuana businesses, but only by following strict monitoring and due diligence guidelines.

In addition to initial due diligence in verifying the licensing and registration status of the business with and obtaining copies of available information on the business and related parties from the appropriate state agencies, banks dealing with marijuana-related business customers are expected to:

  • develop an understanding of the normal and expected activity for the business, including the types of products to be sold and the type of customers to be served;
  • monitor ongoing publicly available sources for adverse information about the business and related parties;
  • monitor the accounts for suspicious activity and red flags described in the guidance; and
  • periodically refresh the customer due diligence information.

The imposition of these obligations is unlikely to give much comfort to banks operating in the 20 states that authorize some form of marijuana-related business.

Renter Pilot Responsibility for Airworthiness

This is a brief review of the responsibility of a renter pilot for aircraft airworthiness violations. It was prepared for general information purposes only, may not apply to a specific set of circumstances and cannot be relied upon as legal advice.

FAR 91.403(a) provides that the “owner or operator of an aircraft is primarily responsible for maintaining that aircraft in an airworthy condition. The balance of 91.403 and the regulations following it prohibit operating an aircraft that does not meet airworthiness requirements. As examples, 91.407 prohibits operation after maintenance without the proper maintenance entries and a return to service; 91.409 prohibits operation without a current annual inspection (or 100 hour inspection if applicable); 91.411 prohibits operation under IFR in controlled airspace without the required  altimeter/static inspections. Exactly who is an “operator” under the FAR tends to vary a bit depending on the context, but, at least with respect to a determination of airworthiness, the term encompases “the piloting of aircraft” (see, i.e. FAR 1.1). So, aside from the PIC’s ultimate responsibility for the safety of flight under FAR 91.3, the FAA specifically imposes on the PIC the obligation to determine if the aircraft is airworthy.

So, how much can a renter pilot (or club member or aircraft borrower) rely on others including the owner or fleet operator? Not too much, according to the few cases on the subject.

Administrator v. Southworth, is a 1999 enforcement action in which a pilot was charged with a violation of 91.409(a)(1), operating a rental 152 without a current annual. The pilot argued  he was “justified in assuming that the aircraft was in an airworthy condition when it was offered for rent” and that “there is no requirement in the FAR that a pilot, before he rents an aircraft, check its logbooks to ensure that the aircraft has had all the requisite inspections.”

That was rejected by the NTSB. Pointing out that the pilot never even asked to see the logbooks, the NTSB tells us blind reliance on the owner/FBO — presuming without inquiry that an aircraft offered for rent would comply with all airworthiness requirements — was an unreasonable assumption to make and does not mitigate the PIC’s obligation to determine airworthiness.

So, how far does this obligation go? Does reliance at some point become reasonable? Can we rely on the aircraft inspection and maintenance summary sheet provided by some flight schools, FBOs and co-ownership groups as part of the dispatch documents to avoid the need for pilots to go into the aircraft logs on every flight? Unfortunately, the answer is a solid “maybe.”

The Southworth case appears to hold out some hope. It points out that the pilot merely assumed the airplane would be airworthy because it was being rented. There was no inquiry at all. Is there some inquiry that would make reliance on the FBO reasonable? In this respect, the NTSB decision distinguishes Southworth from an earlier “out of annual” case, Administrator v. Miller:

The instant case can be distinguished from Administrator v. Miller, 5 NTSB 407 (1985), where a respondent also had rented and operated an aircraft when it had not passed an annual inspection within the previous 12 months. We noted that Mr. Miller relied on his own personal experience with the plane over the previous six or seven years, representations by the owner regarding the condition of the aircraft, as well as “occasional reviews of its maintenance records,” when he assumed that the aircraft had been properly maintained.

Problem is, Miller does not give us any real comfort. The pilot in Miller, despite his general knowledge of the aircraft maintenance history and records, was still found to have violated the FAR. All he got for his efforts was a recognition that his transgression was unintentional and received a reduction in the sanction —  his pilot certificate was suspended for 15 days rather than 30.

So where does that leave us? Ultimately, it is our responsibility as PIC to ensure that the aircraft we fly and teach in meet airworthiness requirements. Faced with an airworthiness violation in a case where a pilot relied on an FBO or club dispatch sheet, would the FAA accept it as excusing the violation or will it have required the pilot to go further and personally check the aircraft logs? We don’t know. We do know they’re not always correct; I had a student who, for his private checkride, found that an “annual” had been signed by an A&P, but not by an IA. The airplane had flown for a few months without anyone noticing.

The safest regulatory answer is, of course, to check the maintenance logs. Perhaps a more practical answer is to use a “trust but verify” approach. If the organization you fly with provides a dispatch sheet, use it but at least periodically verify it’s accuracy. That will likely not eliminate the risk of a violation but may reduce it.


FAA Draft Revision of AC 120-78 – Electronic Signatures, Recordkeeping and Manuals

The Federal Aviation Administration recently issued a draft revision of AC 120-78 clarifying and expanding its guidance on the use of electronic recordkeeping in various flight and maintenance operations. The AC continues its requirement for FAA approval or acceptance of electronic recordkeeping systems.

However, the AC, in a note following paragraph 4(d) of the AC, indicates an intent to exempt plain vanilla Part 91 (as opposed to Part 91, Subpart K) operations from what is a fairly detailed compliance requirement:

NOTE: Part 91 operators are not required to obtain FAA acceptance prior to maintaining records electronically, however, part 91 operators may obtain FAA acceptance to maintain records electronically.

It clear from reading both the original AC and this draft revision, that the primary focus of the AC is the required record-keeping associated with the more highly regulated flight, maintenance and training operations of Parts 121, 125, 129, 133, 135, 137, 141, 142, 145, and 147. The Part 91 Note appears to be an attempt to exempt less-regulated Part 91 activities from this compliance burden. However, as I have commented to the FAA on the draft, if this is the intent, I think it falls short I two respects.

First, despite the language in the Part 91 Note, other sections of the AC suggest the opposite. For example, ¶11 of the draft AC says “FAA review and acceptance or approval is required to use a system for electronic signatures, and/or electronic recordkeeping, and/or electronic manuals.” While the broad brush of the Part 91 Note may be an attempt to overcome this language, there should be greater clarity on this.

Second, if the Part 91 Note is intended to broadly exempt certain activities, it should expanded or otherwise incorporated into the AC in a way that better clarifies what is being exempted from acceptance/approval requirements. As an example, the AC by its terms applies to flight training records. The overall thrust of the AC suggests this is meant for FAA-approved Part 141 and 142 schools and training centers, and not for less formal Part 61 training, where records are kept primarily in pilot logbooks. Indeed, while pilot logbooks under §61.51 are probably the type of Part 91 operator records that the Note intends to exempt from approval or acceptance requirements, this is not clear from the Part 91 Note itself.

Lender’s ECOA Violation Requiring Spousal Guaranty bars Enforcement in in North Carolina

On August 20, 2013, the North Carolina Court of Appeals held, as a matter of first impression, that a lender requiring a spousal loan guaranty in violation of the Equal Credit Opportunity Act is an affirmative defense barring enforcement of the guaranty.

As the opinion discusses, courts in various states have adopted different theories of ECOA liability. In some, guarantors must asset and prove damages resulting from the violation. In others, a guarantor may assert a recoupment defense – a defense arising from the same transaction that may have been barred by the applicable statute of limitations. In a third group of states, now joined by North Carolina, a guarantor may assert an ECOA violation as an illegality defense, barring enforcement of the guarantee in toto.

We  believe  that  the  third  approach  above [an  affirmative  defense  based  on  the  defense  of illegality] is  the  most  consistent  with  the  law  of  this  State…

The case, Rl Regi North Carolina, LLC v. Lighthouse Cove, LLC, may be downloaded and viewed here.

Right Turns on a Circling Approach

The FAA Chief Counsel published an August 8, 2013 interpretation of the §91.126 requirement that at non-towered airports, all turns in the traffic pattern are to be to the left unless “otherwise authorized or required.” The question asked was whether turns in the opposite direction were authorized when a pilot is executing a circling approach. (Although there may be other reasons for it, a “circling approach” is generally an instrument approach that is not aligned with the landing runway.)

In short, the answer is, not automatically.

Unfortunately, the Chief Counsel’s answer was less than helpful. Doing nothing more than citing the regulatory “otherwise authorized or required” language, the letter or interpretation goes on to say:

The FAA emphasizes, however, that the circumstances in which this deviation from § 91.126(b)(l) is “authorized or required” are very limited. The phrase “authorized or required” itself does not give pilots the discretion to deviate from§ 91.126. Such deviation must be “authorized or required” by the approach guidelines of a specific airport or by another FAA regulation.

The only example the letter gives is an emergency . It would have been more helpful to give an example less obvious. For instance, if a circling approach has the notation, “Circling W of Runway 17-35 NA” is that authority to make the turns in the opposite direction if it’s a sound way to remain east of 17-35?

The letter of interpretation may be read here.

FAA Chief Counsel opinion on Part 135 “Exclusive Aircraft” Rule May Affect Part 135 Aircraft Leases

Under 135.25(b) a Part 135 operator must have sole use and possession of at least one aircraft. The opinion, which sounds like it came up in the context of a (proposed or actual) wet lease arrangement between an LLC lessor and a Part 135 lessee, with the lessor wanting to retain some use, states that allowing the aircraft owner personal use of the aircraft would violate the provision. The opinion may be viewed here.

Residential “Through-the-Fence” Operations to Commercial Airports

The FAA has issued a final policy statement, Policy Regarding Access to Airports From Residential Property, dealing with residential access to commercial service airports. So-called “through the fence” operations from residential properties to general aviation airports is specifically authorized by section 136 of the FAA Modernization and Reform Act of 2012. Not so for commercial airports.

This FAA Policy Statement generally prohibits residential through-the-fence operations to commercial service airports. However, recognizing the issues, including the potential litigation between property owners and airports that would likely arise (and affect other parties such as lenders with loans to airport development properties), the Policy Statement includes provisions authorizing and setting requirements, including security requirements, for grandfathering existing arrangements.

The Federal Register publication of the Policy Statement may be viewed here.

FAA Publishes Final Rule Requiring ATPs for First Officers on Airline Flights

On July 10, 2013, in advance of formal publication in the Federal Register, the FAA released its Final Rule amending portions of Parts 61 and 121 of the Federal Aviation Regulations. The Final Rule, which generally requires compliance by August 1, 2013, is an outgrowth of the Airline Safety and Federal Aviation Administration Extension Act of 2010 (Act) passed in the wake of the 2009 Colgan Air crash in Buffalo, NY.

The primary thrust of the Act and the Rule is to require that the Second-in-Command (First Officer) of an airline flight have an Airline Transport Pilot (ATP) certificate by August 1, 2013. Currently, only the Pilot in Command (Captain) of the flight requires that level of pilot certification, with the First Officer needing a commercial certificate. Other provisions of the Rule modify the time and training requirements for obtaining an ATP and add a “restricted ATP” certificate to permit certification of pilots meeting most but not all of the formal requirements (which include age requirements).

The advance publication of the Rule is available on the FAA website here. For additional reference, the Act may be reviewed here.

NTSB Reverses FAA Emergency Revocation

On June 14, 2013, the NTSB took the unusual step of reversing an FAA emergency order revoking a pilot’s certificates for falsifying (electronic) logbook entries. In addition to valuable information about the elements of a §61.59(a)(2) violation, the decision is noteworthy for its discussion of the ALJ’s “arbitrary and capricious” credibility findings against the pro se pilot and exhibition of bias in favor of the FAA, especially in the context of the enactment of the Pilots Bill of Rights. Discussing the ALJs improper exclusion of relevant evidence favorable to the pilot, the Board warned, “given the recently enacted statutory requirement that the Board apply the Federal Rules of Evidence to Board proceedings … we find these evidentiary rulings of even greater significance.” The case, Administrator v. Rigues, may be read here.

11th Circuit – Prepetition bad faith is grounds for Chapter 7 Dismissal

The 11th Circuit Court of Appeals held last week in a case of first impression that, “based on the ordinary meaning of the statutory language and relevant principles of statutory construction, the power to dismiss ‘for cause’ in § 707(a) includes the power to involuntarily dismiss a Chapter 7 case based on prepetition bad faith.” At issue was the Chapter 11 filing by a debtor who filed in order to, the Bankruptcy Court found, avoid a single large debt the Debtor “deliberate[ly] and persistent[ly] evaded “ over a 2-year period while paying insiders.

In so holding, the 11th Circuit joins one side of what the Court acknowledged to be a split of decisions among the federal circuits. The case, Craig Piazza v. Nueterra Healthcare Physical Therapy, LLC, arising from the Florida In re Craig Piazza bankruptcy case, can be viewed here.