According to a recent agency press release, the FAA on Tuesday issued a $1.9 million fine for Chicago-based drone operator, SkyPan, for allegedly “endangering the safety of our airspace” during unauthorized flights over New York City and Chicago. The FAA claims SkyPan’s 65 offending flights took place between March 2012 and December 2014 “in some of our most congested airspace and heavily populated cities, violating airspace regulations and various operating rules,” and that, “These operations were illegal and not without risk.”
Forty-three of the alleged incursions took place in the New York Class B airspace. In addition, the agency says SkyPan flew its unmanned aerial vehicles (UAVs) without equipment required for Class B airspace operations, including a two-way radio and a transponder with altitude reporting capability. FAA Administrator, Michael Huerta said, “Flying unmanned aircraft in violation of the Federal Aviation Regulations is illegal and can be dangerous,” noting that “We have the safest airspace in the world, and everyone who uses it must understand and observe our comprehensive set of rules and regulations.”
This civil penalty action comes in the midst of the agency’s work to compile a comprehensive set of rules for the commercial operation of UAVs in U.S. airspace. Until those regulations are in place, the FAA will continue to issue permits to UAV operators on a case by case basis. About 1,800 such permits have been granted to date. However, with the holiday season rapidly approaching, retailers estimate adding approximately one-million new UAVs to the civilian market before the end of the year. Perhaps in the near future, the FAA will be issuing additional large civil penalties to ignorant drone operators more for shock and deterrence value than anything else.
The regulatory landscape governing unmanned aerial vehicles is unsettled and largely uncharted territory. We recommend that all operators and potential operators seek the advice of experienced aviation counsel before conducting flights with any unmanned devices.
History has taught us that the FAA could almost always be counted on to bring the full weight of the federal government to bear on airmen who deviated from the Federal Aviation Regulations, no matter how minor the infraction. However, a recent Order seems to indicate that the feds are re-thinking their enforcement methodologies. Order 8000.373 states that:
The FAA recognizes that some deviations arise from factors such as flawed procedures, simple mistakes, lack of understanding, or diminished skills. The Agency believes that deviations of this nature can most effectively be corrected through root cause analysis and training, education or other appropriate improvements to procedures or training programs for regulated entities, which are documented and verified to ensure effectiveness.
Could it be that the FAA is now relaxing its black-or-white view of pilot deviations and minor FAR infractions? Such would be a welcome change for airmen who previously experienced the FAA’s relentless pursuit of maximum penalties for minor violations. However, not to be completely foreclosed from pitbull-style prosecution, the FAA left itself an avenue of enforcement in the Order, noting that “reluctance or failure in adopting these methods to remediate deviations or instances of repeated deviations might result in enforcement”. The true effect of the Order remains to be seen.
FAA enforcement actions are complex proceedings filled with traps for the unwary pilot. Airmen facing any FAA investigation or enforcement action should immediately seek experienced legal counsel to protect their certificates and rights.
In a late-2014 legal opinion, the FAA claimed its authority to deny the issuance of a certificate of airworthiness (“C of A”) to an aircraft located outside the United States in cases where it determines that the issuance of such presents an undue burden to the agency. Specifically, the FAA suggested that it may invoke the “undue burden” test to deny the issuance of a C of A to an aircraft registered to a U.S. bank, but located on foreign soil. The agency’s test is derived from FAR 21.325, which states that “if the FAA finds no undue burden in administering the applicable [statutes and regulations], an export airworthiness approval may be issued for a product or article located outside of the United States.”
Even in cases where the owner or purchaser of an aircraft utilizes the services of a Designated Airworthiness Representative (“DAR”), the FAA claims that due to its oversight responsibilities involving DARs, the use of a DAR does not eliminate the “undue burden” to the agency and a C of A may still be properly denied. Clearly, this is a troubling development in the already complex maze of aircraft transactions which include an import or export of the subject airplane. Engaging experienced legal counsel early in the process will help to avoid the many pitfalls inherent in these types of transactions.
In a recent legal opinion, the FAA concluded that in the modern world of celebrity endorsement, an aircraft manufacturer may seek reimbursement for promotional flights involving a celebrity spokesperson. The manufacturer was seeking to pay celebrities to make appearances on its behalf in order endorse the manufacturer’s products. In seeking a legal opinion, the manufacturer represented to the FAA that providing transportation to paid celebrity endorsers in order to assist with marketing, promoting, and ultimately selling the manufacturer’s products was within the scope of, and incidental to, the business of the company, in accordance with the requirements of FAR 91.501.
However, the FAA cautioned that FAR 91.501 is a limited exception to certification requirements for commercial operators and air carriers, requiring the manufacturer, if challenged, to prove how the transportation of celebrity endorsers is within the scope of, and incidental to, the business of the company. As the FAA points out in this and other legal opinions, there is no hard and fast rule regarding reimbursement for Part 91 operations. Due to the complexity of the regulatory framework involved, manufacturers and operators should seek experienced legal counsel before seeking reimbursement for any Part 91 flight or instituting a program of reimbursement for certain aviation business activities.
In a recent change to its Compliance and Enforcement Program, the FAA has lowered the minimum sanction for inadvertent TFR incursions from a 30-day suspension to remedial training. Pilots who inadvertently enter temporary flight restricted airspace may avail themselves of the lower minimum sanction under the following circumstances:
1. Inadvertent, first-time violations resulting from aircraft intruding one mile or less into the security airspace and then turning and exiting directly when there are no resulting complications for air traffic control or other aircraft; or
2. Inadvertent, first time violations resulting from aircraft briefly (two minutes or less) squawking a 1200 code or failing to squawk an assigned discrete code, in security airspace that requires the aircraft to squawk a discrete code when there are no resulting complications for air traffic control or other aircraft.
All other situations will continue to incur progressive enforcement sanctions starting with a 30-day suspension of all pilot certificates. FAA enforcement actions often involve complex issues, including an airman’s particular facts and the governing law and regulations. When faced with any investigation or legal action, pilots should consult with experienced aviation counsel to determine their rights and obligations before speaking with authorities.
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 proposal, the FAA set forth its plan to take back a Class C airspace exclusion extending from the surface up to 2,400 feet MSL, which extends in a 1.5 NM radius around the former Cornelia Fort Airpark. Although Cornelia ceased operations last year, the Class C exclusion remains approximately 4 NM north of Nashville International Airport (KBNA). The only reason cited by the FAA for removing the Class C airspace exclusion is that “it would restore the Class C surface area to the standard configuration of a 5 NM radius around Nashville International Airport and would enhance the management of aircraft operations at the airport.” However, the FAA failed to cite any current issue with the management of aircraft around KBNA which would necessitate removing the current exclusion. Public comments regarding this proposal must be received by April 1, 2013.
In a December 10, 2012 Federal Register notice, the FAA announced its proposal to require non-certificated airports that receive federal grant funds to identify and mitigate wildlife hazards at their airports. The mitigation mandate will take the form of initial Wildlife Hazard Site Visits (WHSVs) or Wildlife Hazard Assessments (WHAs), depending on the
size of the airport, potentially followed by more detailed Wildlife Hazard Management Plans (WHMPs).
The FAA’s stated purpose of a WHSV is for the airport to identify any immediate hazards and for the FAA to determine whether a more comprehensive WHA is necessary. However, small general aviation airports may become unnecessarily burdened by these proposed requirements. Wildlife hazard mitigation programs can be costly and burdensome, especially in the current fiscal climate. Airport owners and managers with questions or concerns about the FAA’s proposed Wildlife Hazard Assessment program should consult with legal counsel.
The National Transportation Safety Board has issued its final rule amending provisions of its rules of practice pertaining to the review of FAA emergency certificate actions. Acting on comments submitted to its Notice of Proposed Rulemaking, the NTSB modified its rules of practice (49 CFR 821) to require a law judge to permit evidence pertaining to the propriety of the FAA’s decision to proceed against the certificate holder on an emergency basis. Although the NTSB declined to change its rule requiring its administrative law judges to “assume the truth” of the FAA’s factual allegations in emergency certificate actions, allowing respondents to submit evidence as to the appropriateness of the FAA’s decision to proceed on an emergency basis is encouraging.
In support of its decision not to back down from its “assume the truth” standard of review, the NTSB cited the statutory time constraints applicable to emergency cases, which require it to render decisions on emergent cases within five days. With only four administrative law judges, the NTSB claims that it cannot effectively hold hearings and render full decisions on the merits within the short time frame required for emergency actions.
Appealing an emergency order of suspension or other adverse certificate action can be an overwhelming process, which should not be undertaken alone. Contacting an experienced aviation attorney immediately after receiving notice of such an action can make all the difference. Don’t delay!
California-based Weco Aeropace Systems Inc. has been charged with using unapproved parts, including paper clips, to repair aircraft. On September 29, 2012, federal prosecutors in the Eastern District of California indicted former executives of Weco on a wide range of fraud counts. The indictment alleges that the defendants allowed technicians to use unapproved parts in repairs, and that Weco Aerospace lacked the requisite equipment to properly install and test major aircraft components, including converters and generators.
Specific allegations include the fabrication of end bell locator pins from a drill bit and a paper clip, and the installation of those fabricated pins into motors which were then installed on aircraft in violation of FAR Part 43. The defendants are also charged with falsifying aircraft records by certifying airworthiness approval tags (FAA Form 8130-3) for components which were not overhauled properly.
This case highlights the importance of ensuring that aircraft repairs and system overhauls are performed by qualified shops using authorized parts. While no aircraft owners were implicated in the indictment, aircraft owners and pilots conducting preventative maintenance pursuant to FAR 43.3(g) (as specified in Part 43, Appendix A) should ensure that they are using only approved parts and procedures. As this case points out, overlooking any required testing procedure is also illegal and problematic. For this reason, those performing preventative maintenance should have their work checked and tested by qualified individuals. Navigating the complex regulations governing aircraft repair and maintenance is fraught with legal pitfalls. Any questions regarding the legality of maintenance, repairs, or airworthiness checks should be referred to an experienced aviation attorney.