FAA Grants Additional Waivers for Commercial UAS Operations

Unmanned Aerial Systems ("UAS") colloquially referred to as “drones” continue to be a hot topic in commercial aviation.  This year the NTSB upheld the FAA’s right to regulate UAS for commercial purposes as aircraft in the National Airspace System.  Today, the industry learned that the FAA issued waivers of operation of UAS for commercial purposes to seven new companies.  That brings the total to 11 companies properly authorized to conduct commercial UAS operations. 

There are currently 167 applications pending with the FAA to obtain waivers for authorized use of UAS in a multitude of different industries.  The initial approvals were all granted to companies involved in movie production.  The latest round of approvals were granted to commercial operations ranging from aerial surveying, to construction site monitoring, and oil rig flare stack inspections. 

Department of Transportation Secretary Anthony Foxx outlined policy going forward on this quickly developing segment of aviation as follows:  “Unmanned aircraft offer a tremendous opportunity to spur innovation and economic activity by enabling many businesses to develop better products and services for their customers and the American public.  We [the FAA] want to foster commercial uses of this exciting technology while taking a responsible approach to the safety of America’s airspace." 

As different businesses embrace the technology, it is clear that companies who intend to remain competitive are acting now to obtain FAA approval in order to utilize UAS to make their operations more efficient and poised for growth.   If you are interested in submitting an application to the FAA for commercial UAS approval, then contact Aviation Attorney Ronnie Gipson at 415.692.6523 or by email at Gipson@higagipson.com.   

FAA Announces Hefty Fines For Multiple Hazardous Materials Shipping Violations- by Elisha Yang

     In press releases issued today, the FAA announced a number of proposed civil penalties directed towards certificated operators and non-aviation companies ranging from $54,000 up to $195,000.  The penalties all pertain to the improper presentation for shipment of hazardous materials and the failure of the companies to provide hazardous materials training.

     British Airways, in particular, is facing a sizeable penalty of $195,000 as a result of shipping a chemical oxygen generator via a passenger aircraft from London Heathrow Airport to Dallas/Fort Worth International Airport for repair.  Due to its extremely flammable nature, oxygen generators are prohibited as cargo aboard passenger aircraft.  Improper labelling of oxygen generators caused the crash of Value Jet Airlines Flight 592 on May 11, 1996.   

     Companies involved in the shipping of hazardous materials must be cautious of potential FAA violations due to the life threatening outcomes possible from shipping dangerous materials on passenger flights.   Penalties imposed by the FAA for violations of any Hazardous Materials Regulation can be avoided by taking appropriate measures within a company to ensure compliance with the applicable regulations.  

     Companies who are subjected to proposed civil penalties are entitled to challenge the sufficiency of those penalties in an administrative hearing before the National Transportation Safety Board.  As part of the FAA’s enforcement process, the FAA will routinely offer to meet with the infringing company to discuss the pending case and attempt to reach a resolution in lieu of proceeding with a hearing.   

 
     If your company receives a notice of Proposed Civil Penalties from the FAA for violation of the Hazardous Materials Regulations, then contact Aviation Attorney Ronnie Gipson by email at Gipson@higagipson.com or by telephone at (415) 692-6523.

Clearing Up the Confusion With Aircraft Accident Reporting

            There continues to exist a great deal of confusion in the general aviation community about the reporting requirements after an aircraft accident or incident.  There is a huge difference between an accident and incident, especially with respect to the reporting requirements.  An airman or operator who gets the reporting requirements wrong could become subject to a revocation or suspension action by the FAA unnecessarily. 

            Code of Federal Regulations Part 49 section 830.5 mandates that a report of an aircraft accident shall be filed with the National Transportation Safety Board (NTSB) immediately or no later than within 10 days after the accident.  In comparison, a report is not required if the aircraft is involved in an incident, unless the pilot in command or operator is specifically directed to file a report by the NTSB.

            An accident, as defined in 49 CFR §830.2 means, “an occurrence associated with the operation of an aircraft that takes place between the time any person boards the aircraft with the intention of flight and all such persons have disembarked, and in which any person suffers death, or serious injury, or in which the aircraft receives substantial damage.”  The regulations then go on to define “substantial damage”.  It is important to note that in the definition, the regulations specifically exclude certain types of damage to the aircraft from qualifying as “substantial damage”.  For example, damage sustained to the landing gear, wheels, tires, flaps, engine accessories, brakes, or wing tips of an aircraft are not considered “substantial damage” for reporting purposes. To make the point clearer, if a pilot damages the landing gear during the flight, then absent other more serious factors such as serious injury or death, then an accident has NOT occurred and the pilot/operator is NOT required to file a report.

            Another complicating factor that is prevalent in the reporting process is that pilots/operators for some reason instinctively contact the FAA to report an accident.  The NTSB is the Federal agency charged with conducting aircraft accident investigations in the United States.  It is the practice of the NTSB to delegate the investigative function for less serious accidents within the general aviation segment of the industry to the FAA.  However, the NTSB is still responsible for identifying the probable cause for any aircraft accident regardless of who conducts the investigation.  For a pilot/operator to initially contact the FAA instead of the NTSB opens a confusing can of proverbial worms because the FAA has the power to pursue enforcement actions against pilots/operators for alleged infractions of the Federal Aviation Regulations that they may discover while conducting an investigation.  Pilots and aircraft operators take heed, if the regulations require the filing of a report due to an aircraft accident, then that report must go to the NTSB and not the FAA.

            Should you have any questions about “substantial damage” to an aircraft or the filing requirements after an aircraft incident or accident, then contact Aviation Attorney Ronnie Gipson at 415.692.6523 or by email at Gipson@higagipson.com.

The FAA Clarifies the Rules on Model Aircraft

On July 18, 2014, the Federal Aviation Administration (FAA) published a notice of interpretation for the special rules applicable to model aircraft under the FAA Modernization and Reform Act of 2012 (the Act). 

The Act authorizes the FAA to integrate unmanned aircraft systems (UAS) into the National Airspace System (NAS). A model aircraft qualifies as a type of UAS and the FAA established special rules for this type of aircraft.  Due to public confusion regarding the rules, the FAA provided this recent interpretation to help clarify what constitutes a model aircraft and what qualifies model aircraft for exemption from future rulemaking.  Additionally, the FAA elaborated on the scope of its authority to take enforcement action against those operators who commit safety violations.

The definition of a model aircraft that Congress provides is consistent with the FAA’s long-standing position that it is one that is operated without the possibility of direct human intervention from within or on the aircraft.  As such, the FAA interpreted this portion of the Act in such a way that visual line of sight would mean that the operator has an unobstructed view of the model aircraft.  If the UAS qualifies as a model aircraft, then the next question should be is it exempt from future rulemaking. 

Congress restricted the FAA from establishing regulations regarding a model aircraft that meets certain exemption terms.  These operational requirements are the source of confusion for those who operate model aircraft due to the uncertainty as to whether future rulemaking applies to them or not. A model aircraft that does not meet these statutory requirements is nonetheless an unmanned aircraft and as such is subject to all existing FAA regulations, as well as future rulemaking action.

The FAA concluded that it was the intent of Congress for the FAA to be able to rely on a range of existing regulations to protect users of the national airspace system, people, and property on the ground.  As a result, regardless of whether a model aircraft satisfies the statutory and operation requirements mentioned above, if the model aircraft is operated in such a manner that endangers the safety of the NAS, the FAA may take enforcement action.  

If you are uncertain as to whether or not your UAS qualifies as a model aircraft or for future rulemaking exemptions, then contact Aviation Attorney Ronnie Gipson at (415)692-6523 or gipson@higagipson.com.

The FAA Considers Integrating Commercial Unmanned Aircraft Systems For the First Time into the National Airspace System

           The FAA Modernization and Reform Act of 2012 (the Act) tasks the Federal Aviation Administration (FAA) with integrating unmanned aircraft systems (UAS) into the National Airspace System (NAS).  The Act legislates under the premise that UAS activity and accompanying regulations will develop from research and test flights and then go on to cover commercial operations.  Currently, public agencies have access to the NAS in order to facilitate testing and operations of UAS.  Certificates of Waiver or Authorization are available to public entities that want to fly UAS in civil airspace and have been issued for the following flight operations:  law enforcement, firefighting, border patrol, disaster relief, search and rescue, and military training. 

 

            In contrast, commercial operators, i.e. companies who propose to use UAS to earn a profit, have not been granted access to the NAS for testing purposes or otherwise by the Act.  The Act gives the FAA the authority to grant an exemption to commercial operators to operate UAS in the NAS on a case-by-case basis.  The policy of the legislature and the FAA is that for UAS to operate safely in the NAS, the UAS must meet the same certification criteria for aircraft airworthiness and pilot certification as manned aircraft.  In other words, at this stage for the FAA to grant approval of a UAS in the NAS, there must either be a certificated pilot at the controls or the operator must demonstrate that the operator of the UAS can safely perform operations without an airman certificate as well as comply with all of the other pertinent Federal Aviation Regulations. 

 

            Recently, the Motion Picture Association of America facilitated an exemption requests on behalf of seven of its aerial photo and video production company members to the FAA asking the agency to grant an exemption from the Federal Aviation Regulations that govern general flight rules, pilot certification requirements, manual requirements, maintenance and equipment mandates.  The exemption request, if approved, would represent the first time that the FAA allows use of UAS for commercial operations.  The aviation industry as a whole will be closely watching the MPAA’s exemption request for indicia of the precedential steps that other commercial operators will have to follow in the future to achieve authorization for UAS to operate in the NAS.  If you intend to integrate UAS into your business’s operations, then contact Aviation Attorney Ronnie Gipson for assistance with the project at (415) 692-6523 or gipson@higagipson.com.

Recap to An Active Week in US Aviation Law

          This week the aviation industry saw a lot of activity in the legal arena that could have a significant impact on general and commercial aviation.   

          First, President Obama sent his budget proposal to Congress for 2015.  In the proposed budget, the President is again seeking a $100 user fee for both commercial and general aviation flights in the National Airspace System.  The congressional leadership kicked into gear immediately sending a strongly worded letter to the President indicating that this aspect of the budget proposal would not pass.  Aviation advocacy groups such as EAA and AOPA issued statements condemning the proposal as the wrong way to fund the services provided by Air Traffic Control.  Advocacy groups reiterated that the current system of collecting excise taxes on fuel purchases is an equitable way to extract proportionate tax revenue from users of the system based on demand.  While Higa & Gipson will continue to monitor the user fee proposal, we encourage airmen and aviation business owners to reach out to their congressional representatives and unequivocally let them know that user fees are not the way to fund ATC services.   

            The second major development this week in aviation law pertains to the nascent commercial drone industry.  The FAA has banned the operation of commercial drones in US airspace until it has time to implement rules for the safe integration of commercial drones into the National Airspace System.  National Transportation Safety Board Administrative Law Judge Geraghty handed down a ruling that overturned a civil penalty imposed by the FAA against the operator of a drone on the basis that the FAA lacked the statutory mandate to impose the penalty for violation of policy guidance disseminated from the FAA and not from an official rule.  While the technology industry lauds the ruling as a step towards advancing the cause of integrating drones into the NAS, it may be too early to open the celebratory champagne.  Almost immediately, the FAA announced that it is appealing the decision to the full NTSB Board.  If the result of this appeal is still considered to be unfavorable by the FAA, then the FAA can launch another appeal to the US Court of Appeals.  Pending the appeals, Judge Geraghty’s ruling is stayed.  Thus, the ban on commercial drone use in the US airspace will continue until the issue is resolved by the appellate process. 

            There are serious ramifications for the introduction of commercial drones into the NAS without thoughtful and measured scrutiny.  For example, the appearance of a commercial drone into the flight path of a commercial jet while landing could cause the airliner to execute a missed approach, which would cost thousands of dollars in fuel costs for the extended flight time.  Then there is the obvious danger in allowing commercial drones too much leeway for operations in the NAS due to the prospect of a mid-air collision with a general aviation or commercial airliner due to an absence of certified technology that can detect the other aircraft’s presence and provide collision avoidance guidance.  These concerns all relate to the potential for significant loss of life and property damage and as such require that the FAA move forward with caution. 

            Should you have questions about the user fees proposal or the National Airspace System, then contact Aviation Attorney Ronnie Gipson at gipson@higagipson.com or by telephone at (415) 692-6520.

Changes to the FAA's Medical Certification Process

As pilots age, their focus includes maintaining their health and mitigating/eliminating any health concerns. In the past, certain medical conditions complicated the process of a pilot renewing his medical certificate.

The Federal Aviation Administration (FAA) recently revised its medical certification process to make it easier for pilots to obtain their medical certificate by shifting the decision as to whether or not an airman is medically qualified to fly from the FAA’s offices in Oklahoma City & Washington D.C. to your local Aviation Medical Examiner (AME). The new “Certificates an AME Can Issue” (CACI) program empowers AMEs to directly issue pilots with certain qualifying medical conditions a medical certificate. Pilots must still provide certain documentation proving the condition is under control to obtain certification, but now the pilots avoid the lengthy and oftentimes frustrating process of obtaining approval from the FAA’s Air Surgeon Office.

Now pilots with the following conditions may be able to take advantage of the CACI program to obtain their medical certification quickly:

• Arthritis;
• Asthma;
• Glaucoma;
• Chronic Hepatitis C;
• Hypertension;
• Hypothyroidism;
• Migraine and chronic headaches;
• Pre-diabetes; and
• Renal cancer.

The FAA has also issued a new policy regarding cardiac special issuances after a stent procedure. Instead of waiting six months for follow-up testing, now pilots only need to wait three months. That’s less time waiting and more time flying!

For more information on the CACI program, contact Ronnie Gipson by telephone at 415.692.6520 or by email at Gipson@higagipsonllp.com.

Airmen in the Pacific Northwest Face Possible Fines of up to $100,000

Effective February 27, 2012, a new regulation takes effect that would enable the National Oceanic and Atmospheric Administration (NOAA) to impose fines of up to $100,000 for flying at low altitudes (1,000 to 2,000 feet msl) over wildlife sanctuaries in the Channel Islands, Monterey Bay, and the Gulf of the Farallones National Marine sanctuaries in California and Washington.  It is important to note that the boundaries of the new protected areas differ from the boundaries depicted on current charts.

General Aviation organizations such as the Aircraft Owners & Pilots' Association (AOPA) and the Experimental Aircraft Association (EAA) have joined forces in an effort to delay implementation of the new rule without a depiction of the affected areas in graphic form.  Currently, NOAA plans to make Airmen aware of the areas through a Federal Register notice and press releases.  Fundamentally, strict adherence to publication of the lateral dimensions in the Federal Register is insufficient because Airmen correlate restricted/special use airspace with visual representations on charts.  Thus, absent an accurate depiction of the new boundaries of the protected areas, Airmen are certain to violate them due to a lack of proper notice. 

One of the more disturbing aspects to the new regulation is that the final rule contains a provision that presumes that wildlife have been disturbed if the Airmen strays into the ill-defined airspace.  Taken to the next logical step, in an enforcement proceeding, this contention would be impossible to disprove, save locating wildlife who are capable of providing cogent testimony. 

If you are planning a trip to the Pacific Northwest, and in particular a trip near one of the protected areas referenced above, then take every precaution to understand the lateral dimensions of the affected protected areas and avoid them.  Should the need arise to challenge a proposed penalty for violating one of these protected areas, then contact our Aviation Attorney Ronnie Gipson at 415.692 6523 or by email at gipson@higagipsonllp.com.    

FAA Explains Crewmember Rest For Flights Conducted Under Part 91

In November 2011, the Flight Standards Regional Office in Alaska requested an interpretation as to whether or not Part 91 permits a required flight crewmember to take a "controlled rest period" i.e. a nap when an augmented crew is not present. 

The controlling provision of the FARs is 14 CFR section 91.105(a)(1) which provides that each required crewmember must be at his crewmember station during takeoff, landing, and while en route.  The implication present in the statute is that the crewmember must actually perform his duties while at his crewmember station.  By simple deductive reasoning along with a careful reading of the regulation, the FAA reasoned that a crewmember who is asleep at his crewmember station cannot and is not performing his duties.  Thus, the FAA concluded that Part 91.105(a)(1) does not permit a required flight crewmember to sleep at his crewmember station.

There are 2 recognized exceptions  to the requirement.  First, a crewmember may leave his station if the absence is necessary to perform duties in connection with the operation of the aircraft.  Second, a required crewmember is allowed to leave his station in connection with physiological needs.  In flight sleep is not a duty that is necessary to operate the aircraft thus a required crewmember does not qualify under the first exception on a Part 91 flight.  Next, the physiological needs exception is very narrow, it only permits breaks for activities such as using the restroom or stretching your legs briefly during a long flight. 

For a large portion of the flying community, a part 91 flight is conducted in an aircraft similar in size to a Cessna 172.  For these pilots, if they were successful in extricating themselves from their seat, there is simply no where to go for physiological needs and there is no aisle to walk down to stretch their limbs.  However, there are flights conducted under Part 91 on larger aircraft that allow a required crewmember to attend to physiological needs or stretch their legs and after reading the FAA's interpretation letter they can continue to do so. 

The above discussion results in a different outcome if the flight is augmented.  In an augmented flight, the required crewmember is replaced by another qualified crewmember.  When the replacement of a crewmember happens, the original crewmember is no longer "required" within the meaning of FAR 91.105(a)(1) because his presence is no longer needed to safely operate the aircraft.  It is important to remember that each and every crewmember is responsible for ensuring that they are sufficiently rested and able to perform their required duties prior to accepting the responsibility of becoming a required crewmember.

If you have questions about the crewmember rest provisions or understanding the FARS as they apply to your operations, then contact Ronnie Gipson by email at gipson@higagipsonllp.com or by telephone at 415.692.6523.         

FAA Reinstates BARR Program

Written By Allison Yau

A December 1, 2011 notice by the Federal Aviation Administration (FAA) to reinstate the Block Aircraft Registration Request (BARR) program to its original reach should have general aviation aircraft owners and operators cheering: all owners and operators, and not just those with a Certified Security Concern, can once again block from public release private data about their plane’s activity. Originally enabled by Congress in 2000, the BARR program allows participants upon request to the FAA to block their N number (an aircraft’s unique registration number) when flying IFR (instrument flight rules: the rules and regulations established by the FAA to govern flight that depends on reference to instruments and electronic signals as opposed to outside visual reference), effectively also blocking any associated data with that number. Associated information includes the aircraft’s altitude, airspeed, destination, and estimated time of arrival.


This reinstatement follows the FAA’s initial proposal on March 4, 2011, to limit the use of the BARR program only to owners and operators providing a Certified Security Concern, established by showing a “Valid Security Concern” or a bona fide business-oriented security concern under Treasury Regulation 1.132-5(m). The proposal defined a “Valid Security Concern” as “a verifiable threat to person, property or company, including a threat of death, kidnapping or serious bodily harm against an individual, a recent history of violent terrorist activity in the geographic area in which the transportation is provided, or a threat against a company.” Qualifying aircraft owners and operators would have been required to annually submit written certification of the continued security concern.

Amidst opposition by the National Business Aviation Association (NBAA), the Aircraft Owners and Pilots Association (AOPA), and other pro-aviation interests, the proposal nevertheless went into effect on August 2, 2011. Chief among the proponents’ objections was that these limitations invaded privacy, posed security risks to those on-board the subject aircrafts, and threatened the United States’ ability to compete in business. In their August 29, 2011, opening brief in the action against the FAA, the NBAA and AOPA argued that the revisions made to the BARR program were unlawful and should be invalidated.

President Obama’s signing of the Transportation, Housing and Urban Development appropriations bill on November 18, 2011, contained a provision to reinstate the BARR program. Following suit, the FAA officially reinstated the program to its original reach. In a letter dated December 1, 2011, from the Department of Justice to the court clerk in the NBAA and AOPA action, the FAA stated that “[e]ffective immediately,” it would “no longer require an owner or operator of general aviation aircraft or of an on-demand air charter aircraft (operating under 14 CFR Part 135) to submit a Certified Security Concern to block that owner or operator’s” N number and associated flight information, excepting data made available to the government.

The FAA is currently developing a permanent policy which will be consistent with the provisions of the recently signed appropriations bill. Meanwhile, in the interim, aircraft owners and operators may submit block requests to the FAA, and the FAA will also continue to block the N numbers of those who have already submitted Certified Safety Concerns. If you are an aircraft owner or operator, it would serve you well to look out for the FAA’s announcement of the permanent policy on the BARR program in the near future.

For more information on this topic, feel free to contact Ronnie R. Gipson Jr., Esq. at (415) 692-6523 or by email at Gipson@higagipsonllp.com.  Ronnie R. Gipson Jr. is an aviation attorney and a founding partner at Higa & Gipson, LLP in San Francisco.

The FAA’s Longtime Expunction Policy is Suspended

Since 1991, it has been the policy of the FAA to expunge, with some exceptions, an airmen’s record of an infraction after 5 years when the FAA has taken action in a civil penalty case or certificate action case.  In August 2010, an amendment to the Pilot Records Improvement Act (PRIA), codified in 49 USCS 44703, quietly eliminated the FAA’s ability to continue this policy.  The change to the law requires the FAA to create an electronic database that includes, “…summaries of legal enforcement actions resulting in a finding by the Administrator of a violation of this title or a regulation prescribed or order issued under this title that was not subsequently overturned.” Language appearing later in the text of the statute requires that the FAA maintain the entries in the electronic database until the FAA receives a notification that the Airmen is deceased. These two requirements taken together conflict with the FAA’s policy of expunging records of legal enforcement actions against individuals that resulted in a finding of a violation.

The aviation community was notified in a letter dated February 4, 2011, by the FAA’s Chief Counsel that the FAA suspended the expunction policy. The last expunction conducted by the FAA related to Airmen certificates occurred on November 1, 2010.  It is important to note that administrative actions and cases with no enforcement action will continue to be expunged, as PRIA does not require the FAA to place these types of entries into the pilot record database. The full impact of the changes to the PRIA have not been determined.  Once the FAA completes its analysis of the impact, the agency plans to amend the expunction policy accordingly and alert the aviation community through the Federal Register system.  In the interim, if you have questions about the changes to the expunction policy and how it may impact your certificate, then contact Ronnie Gipson at (415) 655-6820 or by email at Gipson@higagipsonllp.com.