The Ongoing Lack Of Service From U.S. Federal Agencies

On Friday, 05 May, the Office of the Chief Counsel for the FAA, Mark Nichols, delivered a shocking memorandum to the FAA aircraft registration community.

The memo, authored by Alexandra Randazzo, Assistant Chief Counsel, Information Law Division, announced that effective Monday, 15 May 2023, Aeronautical Center, Central Region Counsel (ACC as the division is informally known in Oklahoma City) will no longer issue legal opinions to what it refers to as “external stakeholders” on any subject relating to the registration of aircraft using non-citizen trusts, the registration of aircraft using revocable living trusts, or the recordation of what the ACC calls “aircraft-related instruments.”

The term “external stakeholders” is broadly interpreted to connote civilians or anyone not employed by the FAA. Whether or not the ACC will set forth further legal opinions germane to “the recordation of aircraft-related instruments” remains unclear. Equally unclear is the division’s stance on recordation opinions pertaining to instruments relating to the subject matter of the memo (e.g., non-citizen trusts and estate planning trusts), or whether it will any longer offer opinions addressing complicated issues salient to the recordation of any document by the FAA Aircraft Registry.

A footnote to the memo states “if you encounter a ‘novel aircraft registration issue’ you may contact the [ACC] to discuss.” Subject footnote instantiates the possibility the  ACC will continue responding to public requests for opinions relating to issues such as the propriety of registration under certain financing leases. The memo does, however, reference “discussions” rather than written positions as asserted by the ACC. Written positions would be of primary interest and greater use to both the FAA Aircraft Registry and the general public.

As Chief Counsel’s Office clearly notes in the memo, the ACC is not required by Federal Aviation Regulation to issue legal opinions on the aforementioned subjects. Nevertheless, the ACC has done so for the better part of forty years. The service, which has become integral to the process of registering aircraft, is more valuable than the public likely realizes insomuch as the FAA Aircraft Registry’s longtime practice has been to forward title and registration documents involving trusts to the agency’s inside counsel (ACC) for review and approval prior to processing subject documents and registering aircraft in the names of trustees. It has long been accepted that the most effective means by which to register aircraft in a timely and accurate manner is to first submit the antecedent documents to the ACC, thereby eliminating the delay inherent first submitting such to the FAA Registry.

Regardless of those points of the Chief Counsel’s memo yet to be clarified, the document occasions a dramatic change in the FAA’s public-facing role—e.g., meeting the needs of “external stakeholders”—since the agency’s policy clarification on the treatment of non-citizen trusts. The move appears to be yet another intermediary phase of the FAA’s transformation from an agency beholden to and in service of the flying public to a bureaucracy serving the aims of the U.S. Federal Government exclusively.

FMI: www.faa.gov