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 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.

Aviation Fuel Suppliers and Retailers Come Under Fire From California Environmental Group

On May 12, 2011, the Center for Environmental Health (CEH) notified approximately 50 aviation gasoline (AVGAS) suppliers and retailers in California that it intends to sue them for violating the Safe Drinking Water & Toxic Enforcement Act of 1986 (“the Act”). The Act prohibits a business from releasing toxins that can make their way into drinkable water sources. The Act specifically identifies lead as a toxin. The Act provides for civil penalties for violations of the act up to $2,500 per day for each violation. The Act contains a “bounty hunter” provision which authorizes private civil suits and allows the litigants to recoup up to 25% of all civil and criminal penalties collected.

There are important exceptions to the Act’s reach. For instance, if a business has 10 employees or less then that business is exempt. Next, in order for a private lawsuit to proceed under the Act, the private litigant must first give notice and allow 60 days to pass. During this 60 day waiting period, if neither the State Attorney General nor the local District/City Attorney prosecutes an action, then the private litigant may file their lawsuit.

In response to the notification by CEH, the General Aviation Manufacturers Association (GAMA) released a statement highlighting the fact that the regulation of all aviation related activities is within the purview of the Federal government, namely the Federal Aviation Administration (FAA) and the Environmental Protection Agency (EPA). The statement includes the following sentence: “The threatened CEH lawsuit in California raises the specter of a patchwork of state regulations governing fuels pilots may or may not use in their piston-powered aircraft.” The points raised by GAMA in its statement segue nicely into a solid argument against CEH’s use of the Act against AVGAS suppliers and retailers based on the Commerce Clause.

Under Article I, Section 8 of the United States Constitution, Congress is given the exclusive power to regulate commerce among the states. This provision is known as the Commerce Clause. The purpose of the Commerce Clause is to prevent the individual states from imposing barriers and obstacles to interstate trade. State legislation that targets the channels of interstate commerce (i.e. the roads, rail lines, telephone lines, or airways); the instrumentalities of interstate commerce (i.e. railroad cars, buses, trucks, and airplanes); or that has a substantial relationship to interstate commerce is prohibited under the Commerce Clause. Piston powered aircraft taking on AVGAS in California travel from state to state in interstate commerce. Without question, CEH’s attempt to regulate AVGAS via the Act runs afoul of the Constitution's Commerce Clause. The legal analysis shows that the actions being challenged by CEH fall squarely into the ambit of protection of the Commerce Clause and the Federal Government. Put another way, the Commerce Clause will not allow the Act to be used as a sword in this way against AVGAS suppliers. As GAMA indicated in its press release, change in this area must come from the Federal Government through agencies such as the FAA and the EPA.

The 60 day notice period that began on May 12, 2011, ended on July 11, 2011. Presumably, CEH will file its lawsuit and serve copies of the complaint on the previously notified parties. If your business is named as a party to the suit by CEH, then you must take action to protect your legal rights by contacting an attorney. If you have more questions or concerns, then feel free to contact Ronnie R. Gipson Jr., Esq. at (415) 655-6820 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.

Florida Repeals Use-Tax for New Aircraft Visiting State

Florida imposes a 6% use tax on the total value of recently purchased aircraft visiting from out-of-state for any purpose. In Florida, out-of-state aircraft owners are subject to the use tax for visiting the state within six months of purchasing an aircraft, even if the owners already paid sales tax in their own state. (Note: California levies a sales tax on aircraft purchased in the state. California imposes an use-tax for aircraft purchased outside the state and domiciled within the state.)

Governor Charlie Crist signed Florida House Bill 173 into law on May 27, 2010. As a result, on July 1, 2010, a permanent exemption for the 6% use tax for visiting out-of-state aircraft goes into effect. The possibility of incurring a 6% use tax for visiting Florida in a recently purchased aircraft deterred pilots from California and all over the nation, from visiting Florida over the past few years. Now out-of-state aircraft owners will be able to visit Florida with newly purchased aircraft for up to 21 days for any purpose and remain exempt from the use tax. Alternatively, aircraft owners with newly purchased aircraft may visit Florida for an unlimited amount of time within six months of purchase, remaining exempt from the use tax, for the purpose of flight training, repairs, retrofitting, or modifications. The Aircraft Owners and Pilots' Association (AOPA) contends, "Allowing more aircraft to visit the state will facilitate growth in the aviation industry and improve aviation services at many local airports."

For more information on how the Florida Use-Tax exemption effects your flying, then contact Ronnie Gipson with Higa & Gipson, LLP at (415) 655-6820 or via e-mail at gipson@higagipsonllp.com.