The FAA recently announced the congressionally-mandated research and test sites for unmanned aircraft systems (“UAS”). The test site operators selected by the FAA are:
The University of Alaska;
The state of Nevada;
Griffiss International Airport (RME) (New York);
The North Dakota Department of Commerce;
Texas A&M University – Corpus Christi; and
Virginia Polytechnic Institute and State University.
In announcing its selections, the FAA stated that “each test site operator will manage the test site in a way that will give access to parties interested in using the site.” However, the agency has yet to announce rules or procedures by which it will ensure that UAS will avoid and not enter the same airspace as manned aircraft, or whether UAS operating at these test sites will meet the same certification and airworthiness standards as manned aircraft.
In a recent legal opinion, the FAA cautioned that offering free seats to non-business passengers on private flights while encouraging those passengers to make charitable donations may be contrary to Federal Aviation Regulations. The seats in question are on aircraft which are owned by a company that is not engaged in air transportation, but uses its fleet of aircraft in furtherance of its business. The company allows individuals to occupy any unused seats on its aircraft when the transportation of those individuals is not within the scope of or incidental to the company’s business. The company does not charge the individuals for access to those seats, but offers to facilitate a donation by the individuals to one or more local charities.
Encouraging or facilitating donations for transportation on flights may be considered the carriage of persons for compensation or hire, requiring the operator to hold a part 119 air carrier or commercial operator certificate to operate these flights under part 121 or 135 rules. Because the FAA defines “compensation” in very broad terms, it does not require profit, a profit motive, or the actual payment of funds to determine that compensation was exchanged. Under the FAA’s definition, valuable good will can be considered compensation. Although charitable donations are not a requirement to obtain transportation on the company’s aircraft, encouraging or facilitating donations in exchange for transportation may result in the receipt of valuable good will. Therefore receipt of good will through facilitation of charitable donations in some circumstances may be construed as compensation, and thus would be in violation of FAR part 91.
The FAA distinguished this scenario from those flights authorized under FAR 91.146 – flights for the benefit of a charitable, nonprofit, or community event. Because the company merely encourages charitable donations, but does not conduct flights directly for charitable purposes, its flights fall outside this exception. Conducting charitable operations under the FAA’s narrow regulatory exceptions is complex and should be guided by experienced legal counsel.
In a recent legal opinion, the FAA determined that the lease of an experimental light sport aircraft (ELSA) to a non-profit flying club violated the operating limitations of ELSAs set forth in FAR 91.319. Under the factual scenario presented to the agency, the owner of a light sport aircraft bearing a special airworthiness certificate proposed to lease the aircraft to a non-profit flying club. The club would then retrofit the aircraft with a Ballistic Recovery Systems parachute and have the aircraft re-certified as an ELSA.
Pursuant to FAR 91.319(f), no person may lease an aircraft that is issued an experimental certificate, except for compensation or hire to tow a glider that is a light-sport aircraft or unpowered ultralight vehicle. Although the lease of an ELSA to a flying club would not be considered a commercial operation, FAR 91.319(f) imposes strict limitations on the lease of ELSAs which prohibit the proposed lease of an ELSA to a flying club unless it were used to conduct the specified towing operations. Moreover, the FAA reiterated its position that generally, light sport aircraft should not be used for lease or rental. Due to the many laws and regulations that affect flying clubs and lease agreements, the acquisition and ownership of aircraft, including light sport aircraft, should be guided by experienced legal counsel.
Part 135 air taxi operators seeking to add a new aircraft type to their operations need not wait until they receive notice that their amended Air Taxi Registration form (4507) has been approved before commencing operations with the new aircraft. A recent FAA legal opinion acknowledged that filing the amended registration pursuant to 14 CFR 298.23, within 30 days after a change occurs, is sufficient to commence or continue operations after adding a new aircraft type. However, the FAA cautioned that the filing of an amended registration does not relieve the operator of the requirement to obtain approval for any necessary amendment to its operations specifications pursuant to FAR 119.51. The certificate holder is required to file an application to amend its operations specifications prior to the desired effective date of the amendment, but the amendment is not effective until approved by the FAA.
Therefore, when adding a new aircraft type to its operations, an air taxi operator should obtain approval for any necessary amendment to its operations specifications prior to commencing operations with the new aircraft, but it may file its registration amendment within 30 days after the change occurs and still maintain its exemption. Any failure to strictly comply with these regulations will likely result in the operator losing its exemption and becoming the subject of an enforcement action. To avoid these pitfalls, operators should consult with experienced aviation counsel when changing their operations in order to ensure compliance.
In a recent legal interpretation, the FAA reinforced its position regarding the prohibition on private pilots operating aircraft for compensation or hire, as specified in FAR 61.113(a). The legal opinion examined a scenario where a private pilot would fly at an airshow performance, but would not receive any monetary compensation, would not log flight time toward an additional certificate or rating, and would not receive additional benefits, amenities, or privileges than any other flight or ground crewmember volunteer. The FAA observed that “compensation” includes non-monetary considerations such as fuel, aircraft rental and maintenance costs, flight time towards ratings or certificates, meals, and lodging. In line with its previous legal positions, the FAA concluded that, if such amenities would not be provided but for the private pilot’s operation of an aircraft, they would be considered compensation in violation of the regulation.
As this legal interpretation makes clear, determining whether an amenity is considered “compensation” for purposes of FAR 61.113 is difficult. Pilots should consult with an experienced aviation attorney before engaging in any flight activity that could be considered operation for compensation or hire.
In a recent legal opinion, the FAA clarified its position on FAR 91.126 regarding turns on approach to an airport in uncontrolled airspace. In response to an inquiry regarding whether the regulations authorized turns to the right in the vicinity of uncontrolled airports, the FAA concluded that a pilot approaching to land at an uncontrolled airport may make right turns if approved light signals or ground markings indicate that right turns are required, or if such deviation is “authorized or required”. However, such authorized or required deviations are rarely appropriate under the regulations. The FAA stated that the phrase “authorized or required” itself does not give pilots the discretion to deviate from FAR 91.126. Such deviation must be “authorized or required” by the approach guidelines of a specific airport or by another FAA regulation. For example, § 91.3(b) authorizes the pilot in command (PIC) of an aircraft to deviate from any rule of part 91 to the extent necessary to resolve “an in-flight emergency requiring immediate action.” Such a decision to deviate is within the PIC’s judgment, however, this determination must be made in good faith based on safety concerns and not convenience.
In a recent legal interpretation, the FAA weighed in on the requirement that a Part 135 operator have “exclusive use” of at least one aircraft that meets the requirements for at least one kind of operation authorized in the certificate holder’s operations specifications. [14 C.F.R. 135.25(b)]. The legal interpretation analyzed a scenario where the Part 135 operator’s exclusive use aircraft is owned by a limited liability company which also uses the aircraft to conduct Part 91 operators. Distinguishing this aircraft use from aircraft shared solely between Part 135 operators, the FAA reiterated that the term “exclusive use” means “the sole possession, control,and use of the exclusive use aircraft.” The FAA concluded that allowing a Part 135 operator’s exclusive use aircraft to be shared with Part 91 operations would render the Part 135 operator’s use non-exclusive and, therefore, in violation of the regulations.
In its response to a request for legal opinion, the FAA concluded that a pilot working for a part 135 certificate holder cannot perform work for that certificate holder, whether directly or indirectly through a related business or corporation owned by the certificate holder, during the pilot’s mandatory rest period. Although the certificate holder is not required to monitor employee activity that takes place after release from work, such as in the case of work at a restaurant or some other business, including flying for another certificate holder, the FAA cautioned that both the flight crewmember and certificate holder would be in violation of FAR 91.13 if a flight crewmember flies when his lack of rest would endanger others.
In a recent legal interpretation, the FAA clarified the permissible methods by which pilots in command (PICs) and second in command (SICs) may log operating experience pursuant to FAR 121.434. Subsection 121.434(c) sets forth the parameters by which PICs and SICs may gain operating experience. Paragraph (c)(l)(i) specifically provides that a PIC “must perform the duties of a pilot in command under the supervision of a check pilot,” and paragraph (c)(2) specifies that a SIC “must perform the duties of a second in command under the supervision of an appropriately qualified check pilot” to acquire operating experience.
In 1995, the FAA amended the operating experience requirements of FAR 121.434 in response to a series of accidents that had occurred at least, in part, due to the inexperience of flightcrew members. As part of the amended rule, the option allowing SIC’s to earn operating experience through observation was removed from the regulation.
In its legal interpretation, the FAA concluded that the plain language of the regulation, as well as the rulemaking history, require that PICs and SICs must actually be “seated at the controls of the airplane” and “perform the duties required of a PIC or SIC” to acquire operating experience. Accordingly, time spent by a pilot while not seated at the controls, including time spent resting, cannot be counted to satisfy the pilot operating experience requirements of FAR 121.434 for a PIC or SIC.
In a recent legal opinion, the FAA determined that the practical test component of reinstatement of an expired flight instructor certificate cannot be accomplished using a flight simulator at a part 142 training center, unless that training center has an approved program for instructor training or certificate reinstatement. For purposes of reinstatement of an expired certificate, the FAA requires that the flight instructor practical test be done in accordance with § 61.183(h) and the flight instructor must complete the practical test specified under that section. If reinstatement is attempted using a simulator at a part 142 training center, the instructor must be enrolled in an approved course of training specific to instructor certification or reinstatement in order for such training to be conducted in a simulator. The FAA specifically rejected a proposed interpretation that would have permitted the expired instructor to reinstate his certificate using “any course” at the training center.