All posts tagged 'faa' - Page 4

D.C. Circuit Court of Appeals Grounds Flytenow & AirPooler Private Pilot Flight-Sharing Concept

As you may know, one of the ways a private pilot is permitted to reduce the cost of a particular flight is to share that expense with the passenger(s) on the flight. The applicable regulation, 14 CFR 61.113(a), provides that "no person who holds a private pilot certificate may act as pilot in command of an aircraft that is carrying passengers or property for compensation or hire; nor may that person, for compensation or hire, act as pilot in command of an aircraft." However, Paragraph (c) of the regulation states "[a] private pilot may not pay less than the pro rata share of the operating expenses of a flight with passengers, provided the expenses involve only fuel, oil, airport expenditures, or rental fees." This creates an exception to the prohibition on private pilots receiving compensation for flying.

Using this exception, and presumably with the Uber and Airbnb ride sharing concepts in mind, two companies, Flytenow and AirPooler, created websites that would allow a private pilot to offer his or her planned flight to potential passengers who would be willing to share the expenses of the flight under Section 61.113(c). However, before the concepts really took flight, both AirPooler and Flytenow requested legal interpretations from the FAA regarding whether their business concept was in compliance with federal aviation regulations. The FAA responded to both requests with a resounding “no.”

The FAA concluded that a private pilot using a web-based service to offer flights to potential passengers would be holding himself or herself out as a common carrier to transport persons from place to place for compensation. The regulations prohibit that type of operation by a private pilot. Rather, under the proposed scenario the FAA stated that the pilot would need to have both a commercial pilot certificate and also an air carrier certificate. The FAA’s decision relied upon the FAA’s previous interpretations of the terms “compensation” and “holding out” as they are used in the regulations.

Flytenow disagreed with the FAA’s interpretations and its application of both the definitions of “compensation” and “holding out” as they applied to its business model. It then filed a petition asking the D.C. Circuit Court of Appeals to set aside the FAA’s legal interpretations. In a not-so-surprising decision, the D.C. Circuit Court of Appeals in Flytenow, Inc. v. Federal Aviation Administration rejected Flytenow’s petition in its entirety and confirmed the FAA’s interpretations.

First, the court confirmed that a private pilot’s receipt of any reimbursement of expenses is compensation. Thus, given the FAA’s broad view of “compensation,” a private pilot’s receipt of a pro-rata share of a flight’s expenses from passengers would be compensation, albeit permitted compensation under Section 61.113(c).

Next, the court had no trouble determining that private pilots using the Flytenow website to offer flights would be “holding out” as the FAA interpreted that term. The court observed that any potential passenger could arrange for a flight by simply using Flytenow’s website. And although use of the website was limited to members, in order to become a member a potential passenger merely needed to sign up. Further, the court did not think that a member pilot’s authority to decide not to accept particular passengers limited the “holding out” by that pilot. Thus, the court agreed with the FAA’s position that a private pilot’s sharing of flight expenses with passengers obtained through the Flytenow website would be contrary to the regulations.

However, the court went on to note that “pilots communicating to defined and limited groups remain free to invite passengers for common purpose expense-sharing flights.” It confirmed a previous opinion by the FAA that a private pilot’s posting of a flight on a bulletin board may be permitted in certain circumstances. The court also stated that “[o]ther kinds of internet-based communications, such as e-mail among friends, for example, seem unlikely to be deemed ‘holding out’ under the FAA’s Interpretation.” Finally, perhaps in fear that its decision would be misinterpreted, the court concluded by stating “[p]rivate pilots continue to enjoy the right to share expenses with their passengers, so long as they share a common purpose and do not hold themselves out as offering services to the public.”

So, what does this mean? Well, for starters, it means that offering flights through a broadly based flight-sharing system or website open to anyone (e.g. John Q. Public) is likely going to be interpreted as “holding out.” However, the court’s language does suggest that making flight-sharing available to a more limited or defined pool of potential passengers may not be considered “holding out.”

Unfortunately, the court did not provide any further guidance on where the “holding out” threshold would be crossed. Somewhere between “communications between friends” and “communications to the public at large” is neither specific, nor is it helpful. Finding the sweet-spot where the pool of potential passengers is large enough to justify the business model for flight-sharing, yet still small enough that it is not “holding out,” may be difficult. But for those who may want to pursue or revisit this type of flight-sharing arrangement, it is better than a complete ban.

Drone Registration: Just In Time For The Holidays?

As you may know, the FAA is working on regulations that will govern the operation of unmanned aircraft systems ("UAS"), more commonly and colloquially referred to as "drones."  Unfortunately, it doesn't look like the FAA will have a final drone regulation ready until next year, at the earliest.

With the concern that thousands of drones will be flying off the shelves this Christmas, the concern and, in some circles panic, has gotten the FAA's attention. Despite its efforts to educate the public regarding drone do's and do not's, the FAA came to the conclusion that registration of drones would be a good idea. Why, you might ask? Well, first, since the FAA considers drones to be aircraft, and under 49 U.S.C. 44101(a) a person may only operate an aircraft in the National Air Space ("NAS") if it is registered with the FAA's aircraft registration branch. Additionally, and perhaps more in response to the anticipated post-holiday proliferation of drones, the FAA feels drone registration will "promote a culture of accountability while achieving a maximum level of compliance."

So, what did the FAA do? It formed a Task Force to develop recommendations for the creation of a drone registration process which the FAA would ultimately use to promulgate drone registration rules. The Task Force was comprised of a number of individuals from a variety of groups and organizations representing both aviation and non-aviation perspectives on drones. After meeting several times, on November 21, 2015 the Task Force issued recommendations to the FAA addressing (1) minimum requirements for drones that would need to be registered; (2) a recommended registration process; and (3) methods for proving registration and marking of drones. Let's take a closer look at these recommendations.

Minimum Requirements
The Task Force recommended that all drones with a maximum take-off weight under 55 pounds and above 250 grams (approximately ½ a pound) and that are operated outdoors in the NAS be subject to registration. The 250 gram minimum was apparently derived from safety studies and risk probability calculations. Drones weighing in excess of 55 pounds are already subject to registration with the FAA. Thus, if you don't intend to ever operate your drone outside, you wouldn't need to register. But that would probably only apply to a very small segment of drone operators. Otherwise, most drones would be subject to registration under the Task Force's recommendation.


The Registration Process

For those drones subject to registration, the registration process recommended by the Task Force would require the drone operator to complete, at no cost to the drone operator, an electronic registration form through the web or using a yet-to-be-developed application ("App"). The drone operator would need to provide the FAA with the operator's name and street address. The Task Force suggested that an operator could also provide its mailing address, email address, telephone number, and serial number of the operator's drones, but that disclosure of this additional information should not be mandatory.

According to the recommendations, a drone operator would not need to register each individual drone, although the web-portal or App that would be used for registration would allow registration of individual drones. Rather, the Task Force has recommended that the drone registration system be owner/operator based. Thus, the drone operator would receive a single registration number that would be used with all drones that the operator wants or needs to register. (Sounds like "drone operator registration" to me, not "drone registration").

The Task Force recommended that drone operators registering drones must be at least 13 years old to register, but drone operators are not subject to the U.S. citizenship requirements that apply to registration of other aircraft with the FAA. Unfortunately, the Task Force does not address how this age-limit impacts the ability of an individual younger than 13 to operate a drone in the NAS. Since the recommendation requires registration for operation in the NAS, this raises a question as to whether individuals younger than 13 will be permitted to operate a drone in the NAS at all.

Once the drone operator completes the registration process, the drone operator would then immediately receive an electronic certificate of registration, via download, or, if the drone operator requests a paper copy or registers directly with the FAA Registry, a paper copy will be sent to the drone operator. The drone operator would also receive a personal universal registration number for use on all drones owned by that drone operator (another reason this is more like "drone operator registration"). Also, the Task Force suggests that the drone operator would have to produce the certificate of registration for inspection anytime the operator is operating a drone in the NAS, although it doesn't suggest to whom the drone operator would need to produce the certificate of registration. Presumably the FAA, law enforcement, and, perhaps, others?

Marking The Drone

Finally, the Task Force recommended that drone operators would have to place the registration number on all applicable drones before the operator could operate the drones in the NAS. Alternatively, if the drone operator provided the FAA with the serial numbers for any of the operator's drones during the registration process, the drone operator would need to ensure that the serial number was actually affixed to each drone.

The Task Force suggests that the registration or serial number marking must be readily accessible and maintained in a way so that it will be legible and readable by someone visually inspecting the drone. And the marking does not necessarily need to be on the outside of the drone. If the registration or serial number is in an enclosed compartment, such as a battery compartment, the Task Force felt that would be considered “readily accessible” so long as the compartment can be accessed without the use of tool.

Conclusions

So, those are the Task Force's recommendations regarding drone registration. Are they binding upon the FAA? No. Will they become part of the FAA's final drone registration rulemaking? Maybe. Will they be the only requirements in the FAA's rulemaking? Probably not.  The FAA is under a lot of pressure on this issue, so it is possible we will see some rulemaking before Christmas.  But for now, we will have to wait and see.  Ho, Ho, Ho.

When Is A Touch-And-Go Landing Not A Landing?

As pilots, we all know that with every takeoff we perform, at some point after that takeoff a landing will occur, some better than others. This is true whether we are flying to a destination or simply performing touch-and-go takeoffs and landings in the local pattern. However, the term "landing" may mean different things in different contexts.

For example, in a recent decision issued by the National Transportation Safety Board, Administrator v. Boylan, the Board determined that a touch-and-go landing did not qualify as a "landing" for purposes of determining compliance with 14 C.F.R. § 91.151(a)(1). The case involved a round-trip flight in which the airman departed from his home-airport with the intention of performing touch-and-go's at two other airports before returning to his home-airport. Unfortunately, after performing the touch-and-go's at those two airports, the airman was unable to make it back to his home-airport due to fuel exhaustion and the flight terminated in an off-airport landing.

Naturally, the FAA was not pleased. The FAA initiated an enforcement action to suspend the airman's ATP certificate for a period of 120 days for the airman's alleged violation of 14 C.F.R. §§ 91.103(a) (failure to become familiar with all information regarding the proposed flight), 91.151(a)(1) (day VFR fuel minimums requiring enough fuel to fly to the "first point of intended landing" and for another 30 minutes) and 91.13(a) (careless and reckless). The airman appealed the order of suspension and after a hearing, the Administrative Law Judge ("ALJ") determined that the airman failed to adequately preflight the aircraft because he did not ensure the aircraft contained sufficient fuel for the flight. As a result, the ALJ found the airman violated §§ 91.103(a) and 91.13(a).

However, in a surprise decision, the ALJ concluded the airman did not violate § 91.151(a)(1) because his touch-and-go landing at the first airport was a landing that occurred at the airman's "first point of intended landing." As a result, the ALJ reduced the suspension of the airman's ATP certificate to 105 days. Not surprisingly, the FAA appealed the ALJ's decision to the full Board.

On appeal, the FAA argued the ALJ's determination that a touch-and-go qualified as a landing for purposes of § 91.151(a)(1) was in error. The FAA also argued the ALJ should have deferred to the FAA's interpretation of the regulation. The Board agreed with the FAA and concluded “first point of intended landing” in § 91.151(a)(1) is "the point at which the aircraft finally comes to rest."

In support of its decision, the Board stated:

The Administrator could not achieve the safety purpose of reducing the risk of fuel exhaustion accidents if an operator only needed to have sufficient fuel to conduct a touch-and-go, as well as fly for an additional 30 minutes, notwithstanding the duration of the remaining flight before the aircraft finally comes to rest.

The Board also rejected the ALJ's reliance upon 14 C.F.R. § 61.57 (recent flight experience: pilot in command) and observed that "[w]hat constitutes a “landing” or “landing to a full stop” under § 61.57 does not define what would constitute the “first point of intended landing” under § 91.151(a)." It further disagreed with the ALJ's finding that a touch-and-go landing marks the end of one flight and the beginning of a new one. Rather the Board found such an interpretation would be illogical because a pilot performing a touch-and-go doesn't have a chance to perform a preflight checklist or visually inspect the fuel tanks before the aircraft takes off again.

Additionally, the Board observed that if the ALJ's interpretation were correct, then § 91.151(a)(1)'s fuel requirement would begin anew with each touch-and-go takeoff. As a result, even under the ALJ's interpretation, in the case before it the evidence still supported the airman's violation of § 91.151(a)(1) because the off-airport landing due to fuel exhaustion showed that he did not meet his fuel reserve minimums when he departed his second and third airports. Thus, the Board reversed the ALJ's decision regarding the § 91.151(a)(1) violation and reinstated the 120 day suspension of the airman's ATP certificate.

So, what can we learn from this case? Well, the obvious answer is to make sure you have enough fuel for your intended flight in compliance with the applicable regulations. The not-so-obvious answer is that a "landing" isn't always a "landing." Not particularly helpful, I know.

However, this not-so-obvious answer highlights the importance of understanding not only individual regulations, but also the distinctions between the regulations. Although it may seem reasonable to think that the language of one regulation should mean the same thing in the context of a different regulation, that isn't always the case, unfortunately. As airmen, we all need to understand the meaning of each regulation applicable to our flights in order to operate in compliance with the regulations and safely.

GARA: the General Aviation Revitalization Act of 1994

The General Aviation Revitalization Act of 1994, or simply GARA, is a federal act that was implemented to amend the Federal Aviation Act (FAA) of 1958.

With a few exceptions to the law, it gave general aviation aircraft manufacturers much stronger protection from prosecution for accidents which were previously said to have been caused by manufacturer fault. Manufacturers embraced this amendment as it put an 18 year time-frame on how long they could be held responsible for a design defect. However, prior to the enactment of GARA, it was a different story altogether for many manufacturers of single and twin engine piston aircraft.

The Rise, Fall, and Rise Again of General Aviation Aircraft Manufacturing

The late 1960's and early 1970's were said to have been the golden years for the aircraft manufacturing industry involved in building single and twin engine piston airplanes. However, towards the end of the 70s, during the period from 1978 to 1988, industry-wide employment fell by a devastating 65 percent. Aircraft manufacturing overall saw a massive decrease in new aircraft shipments, falling 95 percent, and over 100,000 people lost jobs in fields directly related to aircraft manufacturing in the United States.

Cessna Aircraft Company, Piper Aircraft and Beech Aircraft (now Beechcraft), the three leading general aviation aircraft manufacturers who accounted for over half the production of general aviation aircraft in the US, were among the hardest hit.

Cessna, who had been producing general aviation aircraft since its founding in 1927, posted the company's first annual loss in 1983. Virtually handicapped by previous liability exposure, Cessna was forced to halt production on all its single engine aircraft by 1986.

Piper Aircraft Company went in an out of bankruptcy, and was forced to suspend production on some of its most popular models, such as the Super Cub and PA-32 Cherokee Six / Saratoga.

Beech Aircraft shifted its emphasis away from piston / propeller aircraft, keeping the Beech Bonanza and Beech Baron in production and discontinuing all other piston / propeller aircraft models.

The cause for such a drastic drop in both jobs and the manufacturing of single and twin engine piston aircraft were the frequent lawsuits against the manufacturers. Manufacturers were able to be sued for manufacturing defects regardless of the number of years since the actual aircraft design had been developed, or used by customers. This was especially hard on aircraft manufacturers, as general aviation aircraft remained in use several decades after being manufactured, much longer than cars, or even most commercial airliners. These lawsuits became so prevalent in the 1980s that many attorneys began successfully specializing in targeting general aviation aircraft manufacturers and insurers with often frivolous lawsuits.

In fact, between 1983 - 86, Beech Aircraft defended itself against 203 lawsuits, each case costing them an average $530,000 to defend. Interestingly, while researching these cases, the NTSB found that none of the accidents could be attributed to manufacturing and design defects. Most were simply pilot error or another indirect fault.

The effect was widespread. In 1978, 18,000 general aviation aircraft were built, compared to only 928 aircraft in 1994, the year GARA was finally passed. The general aviation industry was suffering from a lack of new aircraft, particularly in the area of training, rental and charter use. The three most popular trainer aircraft, the Cessna 152, Piper Tomahawk and Beech Skipper had all been removed from the market by the mid 1980s, never to return. Russell Meyer, the CEO of Cessna at the time, cited product liability concerns as the sole reason for the halting production of single and twin engine general aviation aircraft.

The Birth of GARA

During the 80s and 90s, guided by Cessna CEO Russell Meyer and Ed Stimpson, the President of the General Aviation Manufacturers Association (GAMA), the general aviation industry began applying pressure to congress. Their main request was for Congress to enact limits on product liability for aircraft manufacturers, and Meyer promised that if such legislation was enacted, he would bring single engine general aviation aircraft back into production at Cessna. Adding their voices to this cause were the Aircraft Owners and Pilots Association (AOPA), the largest US organization of private pilots and general aviation aircraft owners; the International Association of Machinists and Aerospace Workers Union (IAM/IAMAW), representing workers at several general aviation aircraft factories; and a group of Kansas politicians, led by Senator Nancy Kassebaum. This proposed legislation became known as the "General Aviation Revitalization Act," or GARA.

GAMA, as one of the biggest advocates for the enactment of GARA, pointed out the fact that the money being put towards defending aircraft manufacturers against lawsuits could be better spent on improvements in overall aircraft safety and helping to develop new technologies for the good of the industry overall.

GARA is Signed into Law, and Aviation History

Finally, in 1994, GARA was passed by the Congress and signed by President Bill Clinton on August 17th, 1994. In its final form, GARA was a mere three pages long. Those three pages, however, provided manufacturers of general aviation aircraft (defined as aircraft containing less than 20 passenger seats, and not being operated in scheduled commercial service) with an exemption from liability for any of their products that were 18 years old or older from the date of an accident. There were some exceptions detailed, and this was a "rolling" statute, meaning that the 18 year time period was reset whenever modified or replacement parts were installed on an aircraft. In effect, a 25 year old aircraft could still be the object of a successful suit against a manufacturer if it contained manufacturer modifications or parts installed within the last 18 years.

GARA was immediately hailed by Cessna CEO Russell Meyers as a landmark step towards saving the general aviation industry.

"By placing a practical limit on product liability exposure, Congress has literally brought the light aircraft industry back to life."

Resuscitating a Dying Industry

Within five years of GARA coming into effect, the industry produced over 25,000 new aerospace manufacturing jobs. In addition, he U.S. Department of Labor estimated that there were also three extra support jobs created for every new manufacturing job. And the aircraft manufacturers begin to show signs of life, including the big three.

True to his word, Cessna CEO Russell Meyer brought back single engine aircraft manufacturing to Cessna, though in a much more limited manner. They resumed manufacturing their three most popular, and statistically safest single engine models. They began with the Cessna 172 and 182 in 1996, and added the 206 (developed from the popular retractable gear Cessna 210 model) back into the mix in 1998.

Piper Aircraft continued to experience financial troubles, but did continue producing the models that survived the 1980s, and even managed to restore some models to production that had been previously cut. This included the PA-32 Cherokee Six / Saratoga, and the twin engine Seminole and Seneca models. Eventually, Piper did emerge from bankruptcy, and some credit GARA for helping them survive that process.

Beech Aircraft continued producing the two piston-egine aircraft models that had survived the pre- GARA depression, the single engine Bonanza, and the twin-engine Baron, but never resumed production on any of the models it had cut during the 80s.

In addition to the increase in jobs, in the first five years following the passage of GARA, overall production of general aviation aircraft doubled. However, this was still far below the high point of the 1970s. And though production has continued to increase over time, it still hasn't returned to those levels.

In Conclusion

There is still ongoing debate about the overall effect, and effectiveness, of GARA. Opponents say that it had little effect, and mostly served to encourage attorneys to shift liability and lawsuits for accidents to new and different targets. Proponents, however, say that though the production rate has continued to climb, the general aviation accident rate has declined, pointing to safer manufacturing and advanced technology in the area of engines, avionics and navigation equipment. Glass cockpits now come standard in most new general aviation aircraft. National Business Aviation Association (NBAA) President and CEO Ed Bolen had this to say:

"GARA is a tiny, three-page bill that has generated research, investment and jobs. It is an unqualified success."

Others share this optimistic view of GARA, such as former Piper Aircraft President and CEO Chuck Suma, former AOPA president Phil Boyer, and Cirrus Designs co-founder Alan Klapmeier. And though this debate on the overall effect of GARA is likely to continue well into the future, this simple, three page document played a key role in helping shape the future of the general aviation industry.

Sources:

GARA: The General Aviation Revitalization Act of 1994..." 2003. 30 Sep. 2015: https://www.avweb.com/news/news/184254-1.html

Kovarik, KV. "A Good Idea Stretched Too Far - Seattle University School of Law..." 2008: https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1843&context=sulr

"General Aviation Revitalization Act | GAMA - General ..." 2009. 30 Sep. 2015

https://www.gama.aero/advocacy/issues/product-liability/general-aviation-revitalization-act

https://en.wikipedia.org/wiki/General_Aviation_Revitalization_Act

FAA Updates Its Compliance Philosophy: A Move in the Right Direction?

The FAA has issued Order 8000.373 effective June 26, 2015 to explain its current compliance philosophy. That is, as the FAA explains it, its "strategic safety oversight approach to meet the challenges of today's rapidly changing aerospace system." What does that mean? Well, as the regulator of the aviation and aerospace communities, the FAA is charged with establishing regulatory standards to ensure that operations in the National Airspace System are conducted safely. And as we all know, compliance with those regulatory standards is mandatory.

However, not only does the FAA expect us to comply with the regulations, but it also believes that we have "a duty to develop and use processes and procedures that will prevent deviation from regulatory standards." Thus, we are required to conduct ourselves in a way that not only complies with the regulations, but that will also ensure that deviations are prevented. Sounds great, until something (e.g. a deviation) happens. Then what? In the past, the result was typically unpleasant. But that may be changing.

According to the FAA's new philosophy, "[W]hen deviations from regulatory standards do occur, the FAA's goal is to use the most effective means to return an individual or entity that holds an FAA certificate, approval, authorization, permit or license to full compliance and to prevent recurrence." This appears to be a shift from the FAA's past compliance philosophy. At least from my perspective, in the past the FAA's response to violations has leaned heavily toward enforcement and punitive action (e.g. certificate suspensions and revocations). And that approach never made sense to me.

If we truly want to encourage compliance and ensure that a certificate holder is safe, why would we want that certificate holder to be sitting on the ramp and out of the system for 30-180 days or longer with a suspended certificate? Wouldn't it make more sense to educate certificate holders and do what may be necessary to get them back into compliance and in a position where future compliance is more likely?

The FAA's current policy appears to be a step in this direction, at least on paper. The Order explains 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.

Sounds to me like the FAA is talking about letters of correction with remedial training. I think that's a good thing. The Order also notes that "[M]atters involving competence or qualification of certificate, license or permit holders will be addressed with appropriate remedial measures, which might include retraining or enforcement." Here again, the concept of retraining rather than enforcement (which was typically revocation in cases involving alleged incompetence or lack of qualification) appears to more appropriately address the situation in a more positive and productive manner. Maybe not in all cases, but hopefully more cases than in the past.

Of course, this doesn't mean that certificate and civil penalty actions will go away. If a certificate holder fails or refuses to take steps to remediate deviations or is involved in repeated deviations then enforcement may result. That makes sense. Additionally, in those situations where a certificate holder's conduct was intentional or reckless, the FAA indicates that it will pursue "strong enforcement." Also not a surprise.

Although this appears to be a positive shift in the FAA's philosophy/national policy, the rubber really hits the runway with the inspectors at the FSDO level. Will this policy shift actually trickle down? I hope so. But only time will tell.

 

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