FAA Proposes Policy Revisions for Through-The-Fence Operations

The FAA is seeking public comments regarding proposed rules on through-the-fence operations at airports which receive federal grant funds. The proposed rules effect and enforce the terms and conditions of through-the-fence agreements between federally-obligated airports and residential property owners, as required by 49 USC § 47107. Although existing agreements between property owners and non-commercial airports may be grandfathered under the proposed policy, new agreements will subject residential property owners to explicit terms and conditions, including access charges, infrastructure costs, access control, refueling prohibitions, and property maintenance strictly for residential use.

Comments regarding the proposed rules are due by August 29, 2012. If you need assistance with a through-the-fence agreement, or any other operational issues, please contact us.

GAO Report Could Mean Changes for Flight School Security

In a recently-released report, the U.S. Government Accountability Office examined the security of general aviation and U.S. flight training programs.  The report titled “GENERAL AVIATION SECURITY Weaknesses Exist in TSA’s Process for Ensuring Foreign Flight Students Do Not Pose a Security Threat” admits that when non-U.S. citizen flight students apply for pilot certificates the government does not fully vet them to ensure that they are not illegal aliens.  The report blames most of the issue on the lack of communication between federal agencies including the Transportation Security Administration the Department of Homeland Security and Immigration and Customs Enforcement.

A collateral issue has also emerged alleging that those Americans who appear on the TSA’s “no fly” list may still receive flight training despite the fact that they may not legally board a commercial airline (see article). The fallout from this report and the ensuing media sensation could trigger significant additions to and changes in the security measures imposed by the TSA and other government agencies on local flight schools. Given the already onerous regulatory climate in which flight schools must operate additional security requirements will set traps for unsuspecting flight school operators. Experienced legal counsel will be an essential tool for owners and operators attempting to navigate this ever-changing regulatory landscape.

Acting FAA Administrator Stresses Benefits of NextGen Technology

In his remarks at AirVenture on July 26, 2012, acting FAA Administrator, Michael P. Huerta, focused on NextGen benefits for both commercial and GA users, citing the agency’s mission to accelerate their arrival.  Huerta noted that aircraft equipped with NextGen technology are involved in 47 percent fewer accidents than those without, according to the FAA’s analysis.

We are closely following the legal and regulatory developments regarding the FAA’s ongoing implementation of NextGen.

(A full summary of Administrator Huerta’s remarks can be found here)


Pilot’s Bill of Rights Passes the House

The Pilot’s Bill of Rights, sponsored by Senator Jim Inhofe (R-Oklahoma) passed the U.S. House of Representatives yesterday.  Less than one month after it received unanimous approval in the Senate, the bill is now on its way to the President for his signature.

This important piece of legislation includes improvements to our current system of NOTAMs as well as an overhaul of the FAA medical review process. Most notably Senator Inhofe’s Bill protects pilot rights by overhauling the process by which the FAA prosecutes pilots for FAR violations and the procedure by which the NTSB hears appeals from FAA actions against pilots. The Bill requires the FAA to inform pilots of their basic rights before statements are taken and requires the NTSB to adhere to the same procedural safeguards that are afforded to litigants in regular courts.

We will continue to monitor the status of this legislation and will update you on its progress.

Minnesota Supreme Court Rules in Favor of Cirrus

The Minnesota Supreme Court recently held that Cirrus Design Corporation is not liable for its failure to train a VFR pilot in procedures to properly escape an inadvertent encounter with IMC in its aircraft. In its July 18, 2012 decision, the Court held that written instructions located in the POH and other literature provided with the SR22 aircraft at the time of sale fulfilled Cirrus’ duty to warn pilots about the dangers of encountering instrument conditions during VFR flight. Following the January 18, 2003 accident in which pilot Gary R. Prokop and his passenger James Kosak were fatally injured, a trustee of Kosak,s estate sued Cirrus alleging that it failed to properly train Prokop a non-instrument rated pilot in procedures to escape inadvertent encounters with IMC including the use of the SR22’s autopilot to level the airplane’s wings. Although Prokop attended most of Cirrus’ model-specific transition training, he skipped lessons entitled “VFR into IMC procedures.”
The Court observed that although “no party disputes that as a supplier and manufacturer of airplanes Cirrus had a duty to warn foreseeable users like Prokop … Cirrus duty to warn did not require Cirrus to provide flight lesson [VFR into IMC procedures].” Finding that Cirrus fulfilled its duty to warn pilots about the dangers of VRF flight into IMC procedures the Court held that “[t]he duty to warn has never before required a supplier or manufacturer to provide training only accurate and thorough instructions on the safe use of the product as Cirrus has done here.” The Court also noted that under a theory of liability for failure to act, Cirrus could be held liable for failing to provide the VRF into IMC procedures flight lesson to Prokop. However, under Minnesota law, the Court held that Cirrus was not liable under tort theory for failing to provide the flight lesson because the lesson was included in Cirrus’ contract of sale with Prokop and was therefore a contractual obligation instead of a common law duty to act. Because the common law of other jurisdictions might recognize a common law duty to act in the presence of an existing contractual relationship, a similar case might turn out differently in another state.