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Case analysis 10 needs to be related to chapter 12 of the Book Hamilton &Nilsson ( Aircraft Leasing, Co-Ownership and Fractional Ownership).

Practical Aviation & Aerospace Law, Sixth Edition
J. Scott Hamilton, with Dr. Sarah Nilsson
© 2015 Aviation Supplies & Academics, Inc.
All rights reserved.
Sixth Edition published 2015 by ASA. Publication history: Fifth Edition
published 2011 by ASA. Fourth Edition originally published 2005 by
Blackwell Publishing. Other past editions—First, 1991; Second, 1996; Third,
2001.
Aviation Supplies & Academics, Inc.
7005 132nd Place SE
Newcastle, WA 98059
Email: asa@asa2fly.com
Website: www.asa2fly.com
See the “Reader Resources” page for this book on the ASA website at
http://www.asa2fly.com/reader/prctavlaw
Photo credits and acknowledgments. Unless otherwise stated, photographs
used are © J. Scott Hamilton. Photos indicated throughout are courtesy of and
copyright of the following organizations or individuals and are used with
permission: 1-3, Washington Metropolitan Airport Authority; 1-5, NASA; 16, (upper) Hyku Photo, and, 1-7, (lower) Eclipse Aerospace, Inc.; 1-8, U.S.
Customs and Border Protection; 7-1, Library of Congress, G.G. Bain
Collection; 7-4, Clay Observatory at Dexter and Southfield Schools, for
Virgin Galactic; 8-2 U.S. Navy; 8-3 Bernie Roland; 9-1, U.S. Army; 13-4,
USGS digital orthophoto of Santa Monica Airport (via TopoQuest); 13-5,
Denver International Airport; 14-2, U.S. Air Force; 15-3, Transportation
Security Administration; 18-1, photo by Danny Fritsche; 18-2, NASA–
Gagarin Cosmonaut Training Center (ISS Soyuz 13 mission training session,
Star City, Russia); 18-3, Bigelow Aerospace, LLC; 18-4, NASA illustration.
Cover: iStockphoto ©yongbum park
ASA-PRCT-LAW6-EK
ISBN 978-1-61954-273-0
Preface
Practical Aviation and Aerospace Law is designed to be used in conjunction
with the Practical Aviation and Aerospace Law Workbook as a university text
for aviation and aerospace law courses and, standing alone, as a reference
guide for aviation and aerospace business managers, pilots, mechanics,
aircraft owners, and others involved in aviation by vocation or avocation.
Originally titled simply Practical Aviation Law, beginning with the first
edition in 1991 and continuing through the fifth edition in 2011, the book has
continuously grown in response to industry developments and instructor
feedback. In much of the world, aviation is generally considered to be
included in the term “aerospace industry,” but in the United States, a
distinction has persisted, with the term “aviation industry” generally
encompassing operations, repair and maintenance, while “aerospace
industry” is used to refer to aircraft, spacecraft, and component design and
manufacturing, and now also spaceflight operations. With the recent
expansion of the number of companies engaged in commercial spacecraft
design and manufacturing, and most of these companies engaging in or
preparing to engage in operation of those spacecraft (beyond the flight test
phase) for commercial purposes, it appeared timely to add a new chapter
covering the law of commercial spaceflight operations in this edition. The
addition of “and Aerospace” to the title signifies the book’s expanded scope
for this and subsequent editions. The author of this new chapter (the first
contributed by another author since the book’s inception) is Dr. Sarah
Nilsson, Assistant Professor at Embry-Riddle Aeronautical University’s
Prescott, Arizona, campus, whose research interests encompass this topic.
Except for certain treaties having worldwide or at least multinational effect,
the scope of previous editions of the book has been limited to the law of the
United States and may have had little relevance to the domestic laws of other
nations. In keeping with the truly global nature of the aviation and aerospace
industries and in recognition of the worldwide employment opportunities that
offers, this edition begins what is likely to be a long-term effort to continually
expand the global perspective. The book does not attempt to explore the
entire seamless web of the law—only those areas particularly applicable to
aviation and aerospace. I recommend that students considering a career in
aviation and aerospace, whether in operations, maintenance, engineering,
manufacturing or business management, also take courses in business law
and aviation labor relations. While there is some overlap between the content
of those courses and this text, those give much broader and deeper coverage
of some of the legal concepts and principles studied here.
As the title suggests, this book takes a practical viewpoint. It aims to
provide the reader with basic legal knowledge and perspectives along with an
understanding of how the legal system works in relation to aviation and
aerospace activities. It aims to provide that in a form that can be applied to
help you recognize and avoid common legal pitfalls, and to recognize when
the moment has come to stop what you are doing and consult your lawyer. If
this book had a subtitle, it would be How to Avoid Aviation Lawyers and
When to Call One.
No book can hope to advise you what to do in every conceivable situation.
In advising our clients, lawyers must take into consideration not only the law
but also the facts and circumstances. In over thirty-five years of practicing
law—in private practice, as government and later corporate counsel—I
represented clients in well over three thousand aviation matters involving
every subject in this book, and never saw two identical cases. While similar
facts give rise to similar considerations, slight differences in the facts and
circumstances often lead to major differences in the best approach to solving
the problem. Examples in this book and its accompanying workbook are
drawn largely from cases I encountered in my practice.
The law itself is also in a constant state of change. Even as I write, the
Congress of the United States, fifty state legislatures, and a vast number of
administrative agencies are daily making changes to statutes and regulations,
while hundreds of federal and state courts are writing and publishing case
decisions on the interpretation, application, and constitutionality of those
laws and regulations, along with decisions that modify, clarify, or sometimes
confuse the common law. Simultaneously, U.S. diplomats are negotiating
with their foreign counterparts new or amended treaties to be ratified by their
governments. Such changes as have occurred since the fifth edition of this
book was published are one reason for this expanded and updated sixth
edition.
While this process of continual change keeps the lawyer’s work from
becoming routine to the point of boredom, it also means that what was good
advice yesterday (or the day this book went to press) may no longer be good
advice today. While the fundamental legal principles discussed in this book
are less susceptible to sudden obsolescence than, say, a text on the Internal
Revenue Code and IRS Regulations, you are cautioned not to attempt to
solve actual individual legal problems on the basis of information contained
in this book. Finding yourself faced with an actual legal problem, you should
recognize that the time has come to consult your lawyer.
Acknowledgments
I would like to thank the following people for their encouragement, advice,
and support, without which I would not have undertaken and persevered with
the writing of this text, the related workbook and teacher’s manual, and
subsequent updated editions of each. These acknowledgments should not be
construed to imply an endorsement of this teaching system by any of the
persons or organizations mentioned.
Dr. Stacy Weislogel, chair, Department of Aviation, The Ohio State
University, one of the first to urge me to write this book.
Professor Gary Kitely of Auburn University, who recently retired as
executive director of the University Aviation Association, an organization
that consistently provides a wonderful forum and source of information to
those of us who teach aviation-related courses in colleges and universities.
He was a source of encouragement not only in the drafting of the original
manuscript for the first edition, but also in the continuously expanded
international law coverage of each subsequent edition.
Dr. Rex A. Hammarback, director, University of North Dakota Aviation
Foundation and formerly a professor in UND’s renowned aviation program,
who after I had explained my concept for the book said simply and directly:
“If you write it, I’ll use it.”
Hon. John E. Faulk, NTSB administrative law judge (retired), a practicing
attorney with the Trachtmann law firm in Melbourne, Florida, and an adjunct
professor in the School of Aeronautics at the Florida Institute of Technology.
Many of his recommendations based on his classroom experience using this
teaching system have been incorporated as improvements to each successive
edition.
Professor Terri Haynes, Chadron State College, Chadron, Nebraska. She
deserves particular credit for strongly encouraging me to avoid “legalese”
jargon wherever possible in favor of plain English to make the book as clear
and understandable as possible to students and other readers having no
previous training in the law.
Jonathan Stern, Esq., partner in the Washington, D.C. office of the worldrenowned Schnader, Harrison, Segal & Lewis law firm and editor of the
American Bar Association’s Aviation Litigation Quarterly. Jon has been
especially helpful in providing materials, insights, and updates on the
continuing evolution of international law governing airline liability.
Bill Behan, president, AirSure, Ltd., Golden, Colorado. Bill continues to be
a reliable source of information on developments in the ever changing field
of aviation insurance.
John and Kathleen Yodice, a father-and-daughter team in the Yodice &
Associates law firm in Bethesda, Maryland, who do yeoman service for
general aviation as legal counsel for the Aircraft Owners & Pilots Association
and other clients and have proved themselves reliable sources of insights into
recent developments in FAA enforcement, aviation medical, and airport and
airspace access issues.
Professors Robert Kaps of Southern Illinois University (Carbondale) and
Timm Bliss of Oklahoma State University, co-authors with me of the new
Labor Relations in Aviation and Aerospace textbook and study guide with
supplemental readings, published by Southern Illinois University Press, and
Professor Jack Panosian of Embry-Riddle Aeronautical University’s Prescott,
Arizona, campus, who strongly encouraged that effort. All of them also use
this Practical Aviation & Aerospace Law text and motivated me to expand
the coverage of Chapter 17 to provide students a broader introduction to that
topic.
Dr. Sarah Nilsson, Assistant Professor, Embry-Riddle Aeronautical
University, contributing author of the new chapter on commercial spaceflight
operations, was also a particularly helpful sounding board on recent
developments in the law governing unmanned aircraft and on the Pilot’s Bill
of Rights and proposed Pilot’s Bill of Rights 2 legislation. Both of these
topics are moving targets, areas of rapid development having application to
and receiving expanded coverage in several chapters.
The Lawyer-Pilots Bar Association, Southern Methodist University’s
Journal of Air Law and Commerce; DePaul University College of Law’s
International Aviation Law Institute (IALI) and its journal, Issues in Aviation
Law and Policy; and the University of Denver’s Transportation Law Journal,
each of which consistently provides wonderful forums and opportunities for
attorneys and others interested in aviation and aerospace law to share
knowledge and ideas in print and face-to-face in an atmosphere of
professional collegiality. They continue to contribute greatly to the
advancement of the legal profession and the quality of legal service to
aviation and aerospace clients.
Colleagues teaching aviation and aerospace law courses at numerous
colleges and universities who provide feedback and suggestions that
contribute to the continuous improvement of each successive edition of this
teaching system.
My students, past and present, who continue to relentlessly question,
challenge, and demand clear explanations and sound reasoning, rightly
refusing to settle for less.
Not unlike the airline and aerospace industries, the publishing industry is in
dynamic change as publishing companies merge, are acquired, go out of
business, or adjust their scope and market focus, particularly in response to
technological advancements in alternative means of dissemination of
knowledge. Through all this change, successive editors at Iowa State
University Press, Blackwell Publishing Professional, and now Aviation
Supplies & Academics have recognized the need for this teaching system and
its periodic updates, turning my vision into the solid reality you are now
holding in your hand or viewing on your electronic device.
My family, who encouraged me in this project and more-or-less cheerfully
tolerated the many hours I spent sequestered writing and updating this work
(often after a full day of practicing aviation law, running a corporation or
teaching), and especially my wife Charlotte, who did most of the work of
preparing the original and subsequent manuscripts.
The credit is theirs; the errors are mine.
Notes on the Text
Unless otherwise noted, all opinions expressed herein are entirely my own
and do not necessarily reflect the views of my employers, past or present.
All photos and illustrations are by the author, unless otherwise credited.
The use of proper language and phraseology is of crucial importance in the
law. The primary use of italics in the text is to alert you to the introduction of
a law, legal word or phrase you need to understand to grasp the concepts
under discussion, though italics are also occasionally used to give special
emphasis to a point.
The law is constantly evolving to keep abreast of challenges presented by the
evolution of society and technology. The aviation and aerospace industries
are among the most dynamic of all enterprises, and thus the locus of some of
the most continual legal change. The reader can watch for changes that may
occur after this book is in print by consulting the “Reader Resources” page
for
this
book
on
the
ASA
website
at
http://www.asa2fly.com/reader/prctavlaw.
About the Authors
J. Scott Hamilton is an adjunct professor and course developer at EmbryRiddle Aeronautical University, formerly assistant professor and faculty
chair. He previously served as general counsel for the Civil Air Patrol, then
as the national organization’s chief operating officer. Prior to that, he served
as senior assistant attorney general for the State of Wyoming. While
practicing aviation law in Colorado, he also was a faculty member at the
University of Denver College of Law, as well as Metropolitan State College
of Denver. He is an experienced pilot and skydiver who served as a HALO
instructor in the Green Berets. Hamilton is widely published on aviation law
and has received many honors, including induction into the Colorado and
Arkansas Aviation Halls of Fame.
Sarah Nilsson is an Assistant Professor at Embry-Riddle Aeronautical
University and a practicing attorney in Arizona, where her practice focuses
on aviation/aerospace and business law. She previously managed an
Aerospace Magnet program at an inner city high school in Phoenix. Nilsson
gained extensive aviation operating experience working as a cargo pilot and
flight instructor and now volunteers as a safety representative on the FAA
Safety Team. Her research interests include aviation, space, and unmanned
aerial systems law.
PART I
ADMINISTRATIVE LAW
1
Regulatory Agencies and
International Organizations
If you are involved in aviation, you will deal with administrative agency
regulations far more frequently than any other area of the law. Indeed, you
will probably be confronted with making decisions based on the Federal
Aviation Regulations (FARs) on a daily basis. Those regulations also
establish standards of legal behavior by which a judge or jury may later
decide whether you and your employer are legally liable for negligence in the
event of an aircraft accident. Hardly any aspect of aviation today is
unaffected by these regulations. That is why we begin with an examination of
administrative law, with particular focus on the role of the Federal Aviation
Administration (FAA) in administering the federal program of air safety
regulation.
Since the 1920s, Congress has created a plethora of regulatory agencies to
administer the many federal programs it has initiated. Indeed, federal
agencies continue to grow and multiply, under Democratic and Republican
administrations alike. We start here with an overview of the numerous U.S.
administrative agencies most directly involved with some aspect of aviation,
distinguishing them from each other according to the specific role played by
each in regulating aviation. Although this chapter focuses on the U.S. model,
virtually all nations have their own counterparts of these agencies, engaged in
similar aviation regulatory activities. For example, at least 165 nations have
their own domestic counterpart of the FAA, such as the European Union’s
European Aviation Safety Agency, the Civil Aviation Authority of
Singapore, the National Civil Aviation Agency of Brazil, the United Arab
Emirates’ General Civil Aviation Authority, and the Civil Aviation
Administration of China.
The ease with which civil aircraft cross national borders, air
transportation’s key role in the global economy, and recent horrific and
effective use of civil airliners as weapons of terror have made the regulation
and development of civil aviation a continuing subject of not only national
but also international concern.
This chapter also introduces the International Civil Aviation Organization
(ICAO) and the International Air Transport Association (IATA),
organizations that, although not technically regulatory agencies, play an
important role in harmonizing technical standards for civil aviation
worldwide.
FEDERAL ADMINISTRATIVE AGENCIES
The terrorist attacks of September 11, 2001, shook the United States to the
core. Few industries—indeed, few aspects of American life—were
untouched, though some were more deeply affected than others. Civil
aviation, having been so infamously and effectively abused in these attacks as
a weapon of terror, has borne the brunt of these changes.
One of the results of the attacks was the most sweeping reorganization of
the federal government in over a half-century.
Transportation Security Administration (TSA) (www.tsa.gov)
Barely two months after the attacks and for the express purpose of improving
security in all modes of transportation, including civil aviation, Congress
enacted the Aviation and Transportation Security Act of 2001, creating the
Transportation Security Administration (TSA). The TSA was originally
established as an operating agency of the Department of Transportation
(DOT), but moved into the Department of Homeland Security (DHS) when
that agency was created.
Previously, operators of airports served by commercial airlines had been
responsible for airport security, relying primarily on contractors, with some
FAA oversight. The new law brought the responsibility for day-to-day
screening of airline passengers, baggage and cargo into the federal arena,
under the TSA, which immediately set about hiring and training security
personnel. Most of the new federal screeners were the same individuals
previously employed by those contractors that had been performing the
function prior to its federalization. With a change of uniform and some
additional training, they returned to the same work. However, in late 2004,
the Screening Partnership Program (SPP) enabled airports to obtain TSA
approval to replace those federal screeners with qualified, TSA-approved
private sector vendors. At this writing, some eighteen airports have taken
advantage of the SPP and now utilize private sector contractors to provide
passenger and baggage screening services.
The TSA also took over from the FAA the responsibility for inspecting and
testing security measures at airports, with the added responsibility for the
same at other transportation facilities, including foreign aircraft repair
stations. Congress also empowered the TSA to receive, assess, and distribute
intelligence information related to transportation security. The new agency
was directed to develop plans, policies, and strategies for dealing with threats
to transportation security and to coordinate countermeasures with other
federal agencies. Congress also ordered that the Federal Air Marshal program
be beefed up and that steps be taken to increase the availability and use of
explosive detection systems at air carrier airports.
Under the Secure Flight Program, the TSA is now responsible for
maintaining the Terrorist Watchlist and related No Fly and Selectee lists. The
“watch list” of known and suspected terrorists is a uniform list used to
identify persons who should be prevented from boarding (the No Fly List) or
who should undergo additional security scrutiny (the Selectee List). The TSA
began taking over the responsibility for the pre-boarding matching of airline
passengers’ names against these lists from the airlines in early 2009.
Transportation Security Oversight Board (TSOB)
Congress’ initial investigation into the terrorist attacks revealed that various
federal law enforcement agencies had clues that, if assembled together and
investigated coherently, might have revealed the plot and enabled prevention,
but that these agencies tended to hoard, rather than share, potentially crucial
intelligence information. In an effort to address that shortcoming, the
Aviation and Transportation Security Act also created the Transportation
Security Oversight Board (TSOB), an extremely high-level panel composed
of the Secretaries of Homeland Security, Transportation, Defense, and
Treasury; the Attorney General, and the Director of National Intelligence (or
designees of any of the foregoing), along with a presidential appointee
representing the National Security Council (NSC). The TSOB was made
responsible for assuring the coordination and sharing of intelligence relating
to threats against transportation.
Department of Homeland Security (DHS) (www.dhs.gov)
Next, Congress and President George W. Bush created the new Department
of Homeland Security (DHS), now the largest federal department. Paralleling
President Truman’s epic 1947 merger of all branches of the U.S. armed
forces into a new Department of Defense (DoD) to better coordinate the
nation’s defense against military threats, 24 federal agencies were brought
under the new DHS to protect the nation against further terrorist attacks and
respond to natural disasters. Agencies brought into the DHS include the
following (italics indicate the agency’s former home in the federal
bureaucracy):
Secret Service
Coast Guard (Department of Transportation)
U.S. Customs Service (Department of the Treasury)
Immigration and Naturalization Service (INS) (part, from Department of
Justice)
Transportation Security Administration (TSA) (Department of
Transportation)
Federal Protective Service (General Services Administration)
Federal Law Enforcement Training Center (Department of the Treasury)
Animal & Plant Health Inspection Service (part, from Department of
Agriculture)
Office for Domestic Preparedness (Department of Justice)
Federal Emergency Management Agency (FEMA)
Strategic National Stockpile & Disaster Medical System (Department of
Health and Human Services)
Nuclear Incident Response Team (Department of Energy)
Domestic Emergency Response Teams (Department of Justice)
National Domestic Preparedness Office (FBI)
CBN Countermeasures Program (Department of Energy)
Environmental Measures Laboratory (Department of Energy)
National Biological Warfare Defense Analysis Center (Department of
Defense)
Plum Island Animal Disease Center (Department of Agriculture)
Critical Infrastructure Assurance Office (Department of Commerce)
Federal Computer Incident Response Center (General Services
Administration)
National Communications System (Department of Defense)
National Infrastructure Protection Center (FBI)
Energy Security and Assurance Program (Department of Energy)
The Aviation and Transportation Security Act originally assigned the
attorney general responsibility for screening all aliens applying for training at
U.S. flight schools for security risks. Due to comparatively low fuel costs,
prevalent VFR weather, and abundant suitable airspace, the United States
(and particularly Florida and the desert southwest) was a popular destination
for large numbers of foreigners wishing to learn to fly (and land). This new
requirement hit U.S. flight schools—many of which were heavily reliant on
foreign students—hard and hundreds closed their doors. This screening duty
was later transferred to the new DHS and limited to students desiring to learn
to fly aircraft with a maximum certificated gross takeoff weight of more than
12,500 pounds. As required by Congress, DHS now gives quick service to
these foreign students, acting on them within five days.
Aviation security law is discussed in much greater detail in Chapter 15.
Department of Transportation (DOT) (www.dot.gov)
The U.S. Department of Transportation houses a variety of federal agencies
dealing with policy and regulation of various means of transportation of
people and goods. DOT agencies having jurisdiction over various aspects of
transportation include the Federal Aviation Administration (FAA), Federal
Highway Administration (FHWA), Federal Motor Carrier Safety
Administration (FMCSA), Federal Railroad Administration (FRA), Federal
Transit Administration (FTA), Maritime Administration (MARAD), National
Highway Traffic Safety Administration (NHTSA), Pipeline and Hazardous
Materials Safety Administration (PHMSA), Research and Innovative
Technology Administration (RITA), St. Lawrence Seaway Development
Corporation (SLSDC), and Surface Transportation Board (STB). The head of
the agency is the Secretary of Transportation.
In civil aviation, the DOT amasses and publishes a wealth of detailed
operational and financial data and statistics on airlines and airports, available
online
at
http://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/subject_areas/airline_information/in
The DOT also issues certificates of economic authority to U.S. carriers for
interstate or foreign passengers and/or cargo and mail authority, a certificate
for interstate or foreign all-cargo authority, or authorization as a commuter air
carrier, as well as foreign air carrier permits to foreign airlines designated by
their nations to provide service to the United States pursuant to treaty. The
DOT consults with the State Department in the foreign air carrier approval
process. Permit issuance requires presidential approval. The president may
disapprove a specific foreign carrier only for foreign relations or national
security reasons. Such permits have occasionally been denied or withdrawn
in the application of U.S. foreign policy, as when Aeroflot’s permit was
suspended following the Soviet Union’s invasion of Afghanistan.
The DOT also regulates deceptive and anticompetitive practices by airlines
and airports to protect consumers and foster competition in the airline
industry.
Federal Aviation Administration (FAA) (www.faa.gov)
In the Federal Aviation Act of 1958, Congress made the FAA primarily
responsible for the safe and efficient use of the nation’s airspace. The
agency’s influence on the entire aviation industry is pervasive.
The FAA Administrator is the head of the agency, and likely the single
most influential person in U.S. civil aviation.
For many years, the FAA (and its predecessor, the Civil Aeronautics
Authority, or CAA) enjoyed independent agency status within the federal
bureaucracy, an arrangement that afforded the administrator direct access to
the president. But now that the FAA is but one of those many divisions of the
DOT, the Secretary of Transportation is the sole voice for all of these
subordinate agencies in the president’s cabinet. Some aviation interests still
feel that the development of sound aviation policy has suffered as a result of
this organizational structure. A parade of proposals to liberate the FAA from
the DOT has come before Congress, but none has passed and as the years go
by, it appears even less likely that one will.
For several decades, the position of FAA Administrator was one of the
plums of political patronage. The administrator served at the pleasure of the
president, and turnover in the position was frequent, averaging about every
two years—hardly sufficient time to accomplish anything in so ponderous a
bureaucracy. Now, however, the individual appointed to the position is
assured a five-year term in office.
The FAA’s activities cover a wide range, and include:
1. Regulation
The FAA regulates aviation safety, airspace use, and, to a certain extent,
aircraft noise. The primary laws promulgated and enforced by the FAA are
the Federal Aviation Regulations (FARs), found in Title 14 of the Code of
Federal Regulations (14 CFR). This pervasive body of regulations addresses
every conceivable aspect of aviation safety. Additionally, through those
regulations prescribing airworthiness standards for the certification of new
aircraft, the FAA has established aircraft noise limits. These regulations,
developed in consultation with the Environmental Protection Agency (EPA),
deserve credit as the primary incentive for development of the quieter high
bypass ratio fanjet engines that came into use on the second generation of
airline transport jets—the Boeing 747, Lockheed L-1011, and McDonnell
Douglas DC-10. In comparison, the straight turbojet engines used on the first
generation of jet transports, such as the Boeing 707, Douglas DC-8, and
Convair 880, were positively thunderous. Indeed, as we’ll see in Chapter 13,
that first generation of airline jets (whose noise was not regulated by the
FAA) appears largely responsible for creating the widespread enmity that
persists today between airports and their noise-sensitive neighbors. Although
these noisy “Stage 1” jets are now banned from flying in the United States
unless retrofitted with quieter new-technology engines or “hush kits,” the
legacy of public hostility toward airports engendered decades ago by their
noise remains an effective obstacle to the development of new and the
expansion of existing airports in this country.
The FAA also recently imposed noise limits on propeller-driven light and
commuter aircraft receiving FAA type certification in 2006 and later, based
on criteria developed by the International Civil Aviation Organization
(ICAO, discussed later in this chapter).
Congress has also given the FAA sole regulatory authority over suborbital
spacecraft, in the Commercial Space Launch Amendments Act of 2004,
intended to encourage private enterprise investment and participation by
avoiding overregulation of this developing area of commercial activity,
recognizing that spaceflight is inherently more risky than flight in the
atmosphere. That authority is now exercised by the FAA’s Office of
Commercial Space Transportation, which licenses the launch and re-entry of
commercially operated spacecraft. (NASA, however, retains the authority to
set safety standards for any spacecraft that carry NASA astronauts or visit
NASA destinations, such as the International Space Station.)
In addition to the FARs, the FAA from time to time issues other mandatory
orders having the force and effect of law on the subject of aviation safety.
The primary examples are Airworthiness Directives (ADs), which are FAA
orders requiring some inspection or modification of previously certified
aircraft. An AD is usually issued when operating and maintenance experience
reveals the need to change some element of the design or fabrication of a
particular type of aircraft or component to improve flight safety. The need for
such an improvement may be revealed by an accident (or series of accidents),
or by reports of difficulties experienced or observed by aircraft operators,
inspectors, and mechanics in the field.
2. Certification
It is virtually impossible for a person or business to participate in any aspect
of civil aviation in the United States without first obtaining one or more
certificates from the FAA. The FAA certifies not only flight crew members—
including pilots (student, sport, recreational, private, commercial, and airline
transport), flight engineers, flight instructors, flight navigators, and ground
instructors—but also airmen other than flight crew members, including air
traffic control tower operators, aircraft dispatchers, mechanics, repairmen,
parachute riggers and (likely by the time you read this) unmanned aircraft
operator certificates. The FAA also issues a great variety of skill-specific
ratings to accompany these certificates, as well as aviation medical
certificates required of pilots and air traffic controllers (discussed in greater
detail in Chapter 3).
The agency also certifies air carriers and commercial operators, including
domestic, flag, and supplemental air carriers; foreign air carriers operating in
the United States, commuter and on-demand operators, rotorcraft external
load operators, agricultural aircraft operators, and airports serving certificated
air carriers; pilot schools and aviation training centers, aircraft and
component repair stations, and aviation maintenance technician schools.
Additionally, each civil aircraft of U.S. manufacture is the product of three
separate FAA inspection and certification processes. An aircraft manufacturer
intending to introduce a new aircraft design into the marketplace must first
produce prototype aircraft that are subjected to an intense program of both
flight and static testing to prove the design’s conformity to the certification
standards contained in the FARs. Once this test program is completed to the
satisfaction of the FAA, an FAA Type Certificate is issued, approving the
design. Next, the manufacturer’s production facilities and quality assurance
program are submitted to FAA scrutiny. The agency must be convinced that
the manufacturer’s production and inspection methods are adequate to ensure
that each aircraft produced will precisely replicate the design for which the
type certificate was issued. Once this is accomplished, the FAA issues a
Production Type Certificate and manufacturing can proceed. Next, each
aircraft produced is inspected and tested for conformity with the original
design and receives an FAA Airworthiness Certificate before being delivered
to the customer. Subsequent modifications and improvements to the design
require additional FAA certification, through amendments to the Type
Certificate, by issuance of a Supplemental Type Certificate, or by a one-time
field approval for modification of an individual aircraft under an FAA Form
337.
3. Registration
The FAA also operates a single centralized registry for all civil aircraft in the
United States and for certain powerful aircraft engines and propellers. The
FAA Aircraft Registry in the FAA Aeronautical Center in Oklahoma City
maintains files on every aircraft that has ever been issued an “N-number”
signifying U.S. registry (see Figure 1-1). The files include the entire history
of the sequence of owners of the aircraft and other legal interests in the
aircraft, such as liens and encumbrances. The utility and importance of this
registry is explored in greater detail in Chapter 11, along with its connection
to the new International Registry applicable to certain aircraft.
Figure 1-1. If it has an “N-number,” a title search through the FAA Aircraft Registry
and the International Registry can reveal who owns it and who has recorded liens
against it.
4. Security
The Aviation and Transportation Security Act transferred the FAA’s former
air carrier security function to the TSA, but in that Act, Congress ordered the
FAA to improve flight deck security by requiring airlines to strengthen flight
deck doors and keep them locked except as necessary to permit authorized
persons to enter or exit, and to develop guidance for training flight deck and
cabin crews to deal with threats. Congress also ordered the FAA to explore
the use of video monitors in the cabin, along with methods to prevent
disabling of the aircraft’s transponder in flight (as the 9/11 hijackers had
done, to make tracking the aircraft more difficult) and improved methods for
cabin crews to alert the flight deck of security breaches and other
emergencies.
5. Cartography
Responsibility for the production of government aeronautical charts, once the
domain of the Department of Commerce’s National Ocean Service (NOS),
has been transferred to the FAA. Along with that transfer of responsibility,
over 300 NOS employees were transferred to the FAA’s then-new National
Aeronautical Charting Office (NACO). (Since then the office was renamed
the Aeronautical Products Department [“AeroNav”] and more recently
changed again to “Aeronautical Information Services [AIS]”).
6. Education
The FAA educates members of the aviation community on new
developments and matters pertaining to aviation safety through a system of
publications, such as the advisory circulars (AC), and through safety
seminars and recertification programs for flight instructors, pilot examiners,
mechanics holding inspection authorization, and others. The FAA also trains
its own employees at the FAA Academy in the Aeronautical Center in
Oklahoma City and numerous programs at its various facilities.
7. Funding
Under the Airport Improvement Program (AIP), the FAA distributes federal
matching funds for the construction of new airports, the improvement of
existing airports, and related airport planning. These funds are appropriated
by Congress from the Aviation Trust Fund comprising the proceeds of
aviation fuel taxes paid by general aviation and passenger ticket taxes paid by
persons traveling on U.S. commercial airlines. This funding program
administers a trust fund currently valued at approximately $15 billion,
generally expended at a rate of over $3 billion per year, and is discussed in
greater detail in Chapter 13.
8. Investigation
The FAA investigates virtually all civil aircraft accidents in the United States,
as well as some accidents outside the country involving U.S. built civil
aircraft, in connection with the agency’s air safety regulation and
enforcement function. As more fully discussed in Chapter 10, the FAA also
performs the on-site investigation of general aviation aircraft accidents under
delegated authority on behalf of the National Transportation Safety Board
(NTSB). The NTSB, however, has the exclusive authority to make the federal
government’s official finding of the “probable cause” of all civil aircraft
accidents, regardless of whether the factual investigation was conducted by
NTSB or FAA personnel.
The FAA also investigates incidents in which aviation safety may have
been jeopardized but no accident occurred, such as when two aircraft pass
within such proximity as to create a collision hazard. The FAA also
investigates all reports of violations of the Federal Aviation Regulations. This
process of investigation and enforcement in connection with alleged FAR
violations is described in detail in Chapter 2.
9. Operations
The FAA operates a great variety of aviation facilities and equipment,
including:
a. The Air Traffic Control (ATC) System
This system includes airport control towers, terminal radar approach
control (TRACON or Approach) facilities, en route Air Route Traffic Control
Centers (ARTCC or Center), the Air Traffic Control System Command
Center (formerly known as Central Flow Control), and Flight Service
Stations (FSS). There are some control towers operated by private enterprise
and local governments at airports that do not meet activity-level criteria to
qualify for a federal control tower, but most control towers and all
TRACONs and Centers are FAA operated (see Figure 1-2). At this writing,
Lockheed Martin is operating the FSS under contract to the FAA.
Figure 1-2. Most ATC facilities, such as this control tower at the Cheyenne
Regional Airport in Wyoming, are operated by the FAA, although some towers at
airports that are not busy enough to qualify for a federal tower are operated by
private corporations under contract to local governments. More privatization of the
ATC function is possible, as lawmakers search for ways to reduce federal
spending.
b. Radio Aids to Navigation
The FAA also operates a vast network of ground-based radio aids to
navigation (“NAVAIDs”), including radio beacons guiding aircraft over long
distances (such as VORs and VORTACs), non-directional beacons (NDB)
for imprecise navigation to some airports, and others that lead aircraft
precisely to the runway in all weather, such as instrument landing systems
(ILS), microwave landing systems (MLS), and the wide-area augmentation
systems (WAAS) to improve the accuracy and reliability of satellite-based
global positioning systems (GPS). Lockheed Martin operates the WAAS
satellite for the FAA. The Department of Defense operates the constellation
of GPS navigation satellites. The Coast Guard operated the Loran C
navigation aids until 2010, when it discontinued that service in favor of
satellite-based navigation. Local governments also operate some NAVAIDs,
particularly NDBs, and private industry also owns and operates some
approach aids, with several airlines having proprietary ILS or MLS
equipment at remote airports they serve. With the increasing industry reliance
on GPS navigation and impending implementation of the next generation air
traffic control system (NextGen), it appears likely that a phase-out of many of
these ground-based NAVAIDs may begin in this decade.
c. National Airports
For many years, the FAA was the operator of two of the major
Washington, D.C., air carrier airports designated as the “National Airports”
(Reagan—formerly known as Washington National—and Dulles). These
airports are now operated by the Washington Metropolitan Airport Authority
(Figure 1-3).
Figure 1-3. Ronald Reagan Washington National Airport with national capital
building visible in the background to the left of tower. (Washington Metropolitan
Airport Authority photo)
d. Aeronautical Center
The FAA’s Mike Monroney Aeronautical Center in Oklahoma City is a
major record-keeping and training facility. There, you will find the Aircraft
Registry (discussed more fully in Chapter 11), which maintains the records of
ownership and other legal interests in every civil aircraft ever registered in
the U.S. (see also Figure 1-1 and accompanying text); the Airman Records
Branch, which keeps a dossier on every person ever issued an FAA
certificate; the FAA Academy, which trains air traffic controllers, air safety
inspectors, and other FAA personnel; and the Civil Aviation Medical Institute
(CAMI), which reviews and develops medical certification standards along
with drug and alcohol testing policy for persons in the aviation industry.
e. Technical Center
The William J. Hughes Technical Center (formerly known as the National
Aviation Facility Experimental Center or NAFEC), located near Atlantic
City, New Jersey, is the site of the scientific test base for FAA research and
development, test and evaluation activities relating to air traffic control,
communication, navigation, airports, aviation security, and flight safety. The
facility is deeply involved in shaping the NextGen air traffic system. The
FAA does no basic research on aircraft and flight system technologies, these
being within NASA’s area of research responsibility. Where FAA and NASA
research and development (R&D) responsibilities abut or overlap, the two
agencies work together closely to coordinate their efforts without duplication,
conflict, or waste. Throughout the federal government there is increased
emphasis on interagency cooperation. Examples in aviation include Safer
Skies, an FAA initiative that involved a wide range of government and
industry organizations in an effort to improve the safety record of general and
commercial aviation. The initiative is developing recommendations for
changes in training, technology, and procedures with the goal of reducing
general aviation accidents. The Safer Skies initiative also led the FAA,
NTSB, NASA, and a variety of industry associations to form the General
Aviation Data Improvement Team (GADIT) to gather better data on general
aviation accidents, especially those involving human factors. Another
example is the Advanced General Aviation Transport Experiments
(AGATE), a consortium of industry, higher education, and government
entities (organized by NASA and including the FAA) focusing on developing
technologies for general aviation. AGATE is intended to help revitalize the
general aviation industry by advancing the use of new technologies in aircraft
and developing new training methods for pilots. A related NASA program,
the Small Aircraft Transportation System (SATS), is discussed later in this
chapter in the section describing that agency.
National Transportation Safety Board (NTSB) (www.ntsb.gov)
The National Transportation Safety Board is an independent federal agency
whose primary responsibility is to investigate transportation accidents,
determine the “probable cause” of each accident, and recommend to the
appropriate regulatory agencies (in the case of aviation, the FAA) measures
that might prevent similar accidents in the future. Like the Department of
Transportation, the NTSB’s duties cover a broad range of civil transportation
modes, including aviation, highway, marine, pipeline, and hazardous
materials transportation accidents.
The NTSB is one of the smallest federal agencies, having only about 300
employees, only a fraction of whom are trained aircraft accident
investigators. Therefore, the board must frequently delegate its on-site
aircraft accident investigation duties to the better-staffed FAA. This is done
particularly in non-fatal general aviation accidents, to allow the NTSB field
investigators to concentrate on airline and other high-profile civil aviation
accidents.
Regardless of which agency’s employees conduct the on-site investigation,
it is always the NTSB that must analyze the information and make the official
finding of the probable cause of the accident. This process is discussed in
greater detail in Chapter 10.
The NTSB also has the responsibility for coordinating and integrating the
resources of the federal government and other organizations (such as the
American Red Cross) to support the efforts of state and local governments
and the airline to meet the needs of airline disaster victims and their families.
The NTSB also serves as the first level of appeal in cases where the FAA
has taken enforcement action to suspend or revoke a certificate or, under
certain circumstances, to impose a fine. This process is discussed in Chapter
2.
National Aeronautics and Space Administration (NASA)
(www.nasa.gov)
Although NASA’s name most commonly brings to mind the agency’s space
exploration activities, NASA continues to make important contributions in
the areas of aerodynamics and aviation technology. In aerodynamics, NASA
research & development led to the supercritical airfoil now in general use on
high-performance aircraft (in both wing and propeller cross sections) and the
“Whitcomb winglet” (Figure 1-4), both of which increase aircraft efficiency
and conserve aviation fuels. Much of the basic research that led to successive
generations of increasingly quiet and fuel-efficient high bypass ratio fanjet
engines was done at NASA.
Figure 1-4. Many airliners are sprouting winglets such as these, originally
developed by NASA, to improve fuel efficiency.
The agency is also conducting research into alternative aviation fuels,
helicopter blades made of shape-changing materials to reduce noise and
smooth out the ride, blended wing/fuselage technology to improve the
efficiency and reduce the carbon emissions and noise footprint of subsonic jet
transports (see Figure 1-5), and the design and propulsion of a secondgeneration (the British Aerospace Concorde, now retired from service, being
the first) supersonic or hypersonic transport. NASA research and
development efforts in aviation have also led to advanced flight control and
aircraft deicing systems, along with improvements in civil aircraft
airworthiness. NASA is now providing research support in connection with
development of the NextGen ATC system.
Figure 1-5. NASA is currently researching a blended wing body design for quieter
and more efficient transport category jets. Here, a subscale X-48B is seen banking
over desert scrub at Edwards Air Force Base. (NASA photo)
NASA’s general aviation research activities focus on:
Propulsion, noise and emissions improvements to reduce
environmental impacts
New flight deck displays to improve safety
Advanced metals and composites for general aviation applications
Aerodynamic improvements to increase aircraft speed, capacity, and
fuel efficiency
Recent interrelated general aviation programs supervised or participated in
by NASA include the Highway in the Sky program, intended to ease pilot
workload and simplify air navigation through more sophisticated electronic
displays; the Advanced General Aviation Transport Experiments (AGATE),
focused on developing technologies for general aviation; and the Small
Aircraft Transportation System (SATS) program, building on the others to
demonstrate the viability of using increasingly sophisticated light general
aviation aircraft (Figure 1-6), including very light jets (VLJs) (Figure 1-7), to
affordably reduce many of the expected problems in the nation’s
transportation system, such as increasing congestion on highways and at
major airports served by the airlines, by providing point-to-point
transportation between the thousands of existing public use airports not
served by the airlines.
Figure 1-6. The ergonomically designed high-tech “glass cockpit” in this very light
jet (VLJ) exemplifies the ease of operation goals of the AGATE and SATS
programs. (Hyku Photo)
Figure 1-7. Very light jets, such as this Eclipse 500, may fulfill the vision of NASA’s
SATS program of doubling the number of U.S. communities receiving air
transportation. (Eclipse Aerospace, Inc. photo)
NASA also administers the confidential Aviation Safety Reporting
Program (ASRP), designed to identify problems in the National Air
Transportation System, especially those related to air traffic control. This
program is described in greater detail in Chapter 2.
On the space operations side, NASA and the FAA have distinct but
interlocking safety regulation authority. The FAA is responsible for
regulation and licensing of commercial space launch and re-entry operations,
primarily to assure safety of persons and property on the surface and in the
airspace during those operations, but lacks regulatory authority over the
airworthiness/spaceworthiness of the spacecraft (at least for now, early in the
learning curve of these operations). NASA retains authority to set safety
standards (so-called “man-rating”) for any spacecraft that will carry NASA
astronauts or visit any NASA destination (such as the International Space
Station). The two agencies closely coordinate their activities and share their
respective stores of specialized knowledge and experience in this area.
Civil Aeronautics Board (CAB)
Formerly the powerful and pervasive regulator of airline economics,
including routes flown and routes served by U.S. airlines and foreign airlines
serving the U.S., the CAB was gradually wound down as a result of
Congress’ passage of the Airline Deregulation Act of 1978. The CAB finally
ceased to exist on January 1, 1985.
Before deregulation, the Public Utilities Commissions (PUCs) of most
states also exercised tight regulatory control over the economic aspects of
intrastate operations of air carriers, duplicating the CAB’s controls over
interstate and foreign transport for air carriers operating within the states. For
example, in Colorado there is a niche market for air transportation between
Denver and the state’s ski resort areas. One airline focusing on serving this
market was Rocky Mountain Airways (RMA), which operated only within
Colorado. Before adding or deleting service between any two points within
Colorado, RMA was required to obtain a certificate of public convenience
and necessity from the state’s PUC. Before setting or changing the fare to be
charged on any of these routes, RMA was required to obtain PUC approval.
This duplicative, expensive, and time- and resource-wasting state regulatory
process was specifically preempted by the Deregulation Act, which
prohibited all states except Alaska (which, due to its size, geography, and
extremely limited highway system, is uniquely reliant on commercial air
transportation) from regulating the economics of federally certificated air
carriers (rates charged and routes served, for example).
This federal preemption does not, however, extend into the areas of
registration and taxation of aircraft, so that state aircraft registration
requirements and state personal property or specific ownership taxes on
aircraft are lawful and commonplace. Typical state aircraft registration and
taxation programs are discussed in Chapter 11.
Air Transportation Stabilization Board (ATSB)
Only 11 days after the terrorist attacks of September 11, 2001, Congress
passed the Air Transportation Safety and System Stabilization Act to
compensate victims of the attacks for their losses and to aid the recovery of
U.S. airlines from the financial consequences of the attacks. Victim
compensation provisions of the Act are discussed in detail in Chapters 8 and
9.
The Act created the Air Transportation Stabilization Board, composed of
the Secretary of Transportation, Chairman of the Board of Governors of the
Federal Reserve System (designated as Chair of the ATSB), Secretary of the
Treasury, and Comptroller General of the United States (as a nonvoting
member), or their designees.
The ATSB was empowered to issue up to $10 billion in federal loan
guarantees to the airlines and to compensate the airlines up to $5 billion for
direct losses resulting from federal action grounding the airlines in the wake
of the attacks.
National Mediation Board (NMB) (www.nmb.gov)
Unlike most other industries, labor-management relations in the airlines (and
railroads) are governed not by the National Labor Relations Board (NLRB)
under the National Labor Relations Act, but by the National Mediation Board
under the Railway Labor Act of 1926, made applicable to common carriers
by air in 1936. The NMB supervises union efforts to organize workers,
elections, and conducts the compulsory mediation procedures the RLA
requires as a mandatory step toward resolving major labor-management
disputes within the airline industry. These procedures are discussed in detail
in Chapter 17.
National Labor Relations Board (NLRB) (www.nlrb.gov)
The NLRB regulates labor-management relations in all U.S. industries except
the airlines and railroads. Thus, the NLRB supervises union organizing
efforts and elections, and rules on unfair labor practice claims in the
aerospace manufacturing industry and general aviation (except general
aviation operators conducting common carrier operations, such as on-demand
charters and emergency medical air transportation). The NLRB’s regulations
and procedures are discussed in some detail in Chapter 16.
Office of Personnel Management (OPM) (www.opm.gov), Federal
Labor Relations Authority (FLRA) (www.flra.gov), and Merit
System Protection Board (MSPB) (www.mspb.gov)
These agencies have roles in regulating labor-management relations of
federal employees, such as FAA air traffic controllers and air safety
inspectors.
The OPM establishes the rules and procedures and practices for federal
employment, the FLRA oversees union organizing and collective bargaining
by federal employees, and the MSPB hears appeals of federal employee
grievances—such as those filed by thousands of former FAA air traffic
controllers whose employment was terminated as a result of their
participation in an illegal strike by the Professional Air Traffic Controllers
Association (PATCO). These agencies are discussed in greater detail in
Chapter 16.
Federal Trade Commission (FTC) (www.ftc.gov) and Department of
Justice (DOJ) (www.usdoj.gov)
The Federal Trade Commission and Department of Justice police all
industries for anticompetitive practices. In aviation, this mostly involves
airline and aerospace manufacturer mergers and acquisitions and collusion
among competitors in price-fixing.
The Department of Justice is also responsible for investigation and
prosecution of federal crimes relating to aviation, such as aviation security
and bogus parts cases. Crimes relating to aviation are discussed in Chapters 2
and 15.
In the Aviation and Transportation Security Act, Congress also directed the
National Institute of Justice, the research and development branch of the
Department of Justice, to assess potential use of nonlethal weapons by flight
deck crewmembers to temporarily incapacitate intruders.
Customs and Border Protection (CBP) (www.cbp.gov)
U.S. Customs and Border Protection (CBP) is the largest federal law
enforcement agency and is part of the Department of Homeland Security.
CBP is responsible for preventing terrorists and terrorist weapons,
unauthorized persons, illegal drugs, and other contraband from entering the
United States.
The Aviation and Transportation Security Act required all airlines
providing international air transportation to the United States to secure their
computer reservation systems against unauthorized access and to
electronically transmit passenger and crew manifests to U.S. Customs prior to
departure. Under the Secure Flight Program, implementation of which began
in early 2009, the TSA now screens the names on these lists against its
“watch list” of known and suspected terrorists to identify persons who should
be prevented from boarding (the No Fly List) or who should undergo
additional security scrutiny (the Selectee List).
The CBP’s Office of Air and Marine (OAM), formed in 2005 to
consolidate several federal law enforcement aviation programs, is the world’s
largest civilian law enforcement air force, with over 700 pilots operating
more than 272 aircraft of 22 different types (including unmanned aircraft
systems) (Figure 1-8). The division’s mission is to detect, interdict, and
prevent acts of terrorism and the unlawful movement of people, illegal drugs
and other contraband toward or across the borders of the United States, and to
conduct air operations in support of other federal, state, and local needs, such
as disaster relief. CBP’s activities are focused along U.S. borders.
Figure 1-8. U.S. Customs and Border Protection Lockheed P-3 Orion on offshore
patrol. (Customs and Border Protection Photo)
Immigration and Customs Enforcement (ICE) (www.ice.gov)
Another DHS agency, working in close coordination with CBP and the U.S.
Marshals Service, ICE law enforcement activities focus more on
identification and apprehension of removable aliens, detention and removal
of illegal aliens who are already within the United States. It prioritizes the
apprehension, arrest and removal of convicted criminals, those who pose a
threat to national security, fugitives, and recent border entrants. It is also the
first point of contact for individuals seeking asylum in the United States.
ICE removal (deportation) activities are directed by ICE Air Operations
(IAO), which utilizes commercial airlines and air charter services (often
referred to as “Ice Air”) to transport such individuals both domestically and
for repatriation worldwide.
Occupational Safety and Health Administration (OSHA)
(www.osha.gov)
OSHA regulates safety and health in the American workplace, publishing and
enforcing specific health and safety regulations, requiring employers to keep
records of all workplace injuries and accidents, and inspecting workplaces to
ensure compliance. OSHA is empowered to assess fines for violations and
order employers to correct unsafe conditions.
The Occupational Safety and Health Act, which created and empowered
OSHA, also imposed on employers a general obligation to keep their
workplaces free from hazards that could cause serious harm to employees.
In the aviation and aerospace industries, OSHA had generally confined its
inspection activities to aerospace manufacturing facilities and airline ground
operations, but in 2013 the agency adopted new workplace safety rules for
required aircraft cabin (but not flight deck) crewmembers, whether operating
under 14 CFR Part 121, 135, or 91 rules. OSHA and the FAA are cooperating
in developing minimally intrusive inspection and enforcement protocols for
these new in-flight standards.
Overall, OSHA’s approach appears effective. In 1900, about 35,000
American workers died at work, but although a century later the workforce
had increased by a factor of five, the number of annual workplace deaths had
dropped to about 5,500.
The State Department (www.state.gov) and the President
(www.whitehouse.gov)
The State Department negotiates treaties between the United States and other
nations. Examples relating to aviation include treaties relating to air piracy
and air transport agreements providing for reciprocal international air service.
Once the State Department has negotiated a proposed treaty, it must be
approved and executed by the president and ratified by the Senate.
Foreign air carriers designated by their country to provide service to the
U.S. under an international air service agreement must receive a foreign air
carrier permit before commencing operations to the U.S. The DOT issues
these permits, after consultation with the State Department and subject to
presidential approval. The president may disapprove a specific foreign carrier
only for foreign relations or national security reasons, such as when the
carrier’s security practices are deemed overly lax.
STATE ADMINISTRATIVE AGENCIES
State governments are also free to regulate commerce, as long as state rules
do not conflict with federal law or unduly burden interstate or foreign
commerce. (See Chapter 13 for detailed discussion of the application of this
concept to the regulation of airport operations and airspace use.)
In one example of permissible state regulation, Florida’s Department of
Environmental Protection (DEP) initiated enforcement action against EmbryRiddle Aeronautical University (ERAU) for the age-old and then
industrywide practice of “sumping and dumping.” It is a crucial step in the
preflight inspection of any powered aircraft to drain small fuel samples from
the aircraft’s various fuel sumps to check for water, debris, and other possible
contaminants, as well as to verify (by color and odor) that it is the correct
type of fuel for that aircraft (“sumping”). For virtually the entire first century
of powered flight, it was routine practice throughout at least the general
aviation community to then discard each small collected sample by pouring it
on the ground (“dumping”). The problem is that fuel is toxic, flammable, and
corrosive, which qualifies it as hazardous waste. Although most of such a
small sample of dumped avgas evaporates, some (including the tetraethyl
lead additive) remains to run off into the soil and water, making the practice
an unlawful disposal of hazardous waste, punishable by a fine of up to
$50,000 per day under Florida law—enough to motivate anyone to make a
focused effort to break an old bad habit. In consideration of ERAU partnering
with DEP and the Aircraft Owners and Pilots Association (AOPA) to develop
an educational campaign to persuade pilots to break this old bad habit, the
state reduced the university’s fine for the past illegal practice.
The Occupational Safety and Health Act that created OSHA as a federal
administrative agency also empowered states to take responsibility for
enforcing occupational safety and health standards through OSHA-approved
state plans. At this writing, 24 states and 2 territories now have functioning
approved state enforcement plans.
INTERNATIONAL REGULATION
International Civil Aviation Organization (ICAO) (www.icao.int)
Although not technically a regulatory agency, the International Civil Aviation
Organization, an organ of the United Nations and headquartered in Montreal,
has a profound worldwide effect on aviation standards.
ICAO was organized in late 1944 at the Chicago Conference. There (with
World War II still raging in Europe and the Pacific), representatives of 52
allied and neutral nations gathered to chart global civil aviation’s postwar
course.
The two specific goals of the gathering were:
1. Establishment of international technical standards for airworthiness
certification, flight crew certification, communications, and radio aids
to navigation, and
2. Establishment of principles and procedures for the economic
regulation of international civil aviation’s routes, fares, frequency,
and capacity.
The delegates’ philosophy was clearly expressed in the preamble to the
resulting treaty, the Convention on International Civil Aviation (also known
as the Chicago Convention):
WHEREAS the development of international civil aviation can greatly help
to create and preserve friendship and understanding among the nations
and peoples of the world, yet its abuse can become a threat to the general
security; and
WHEREAS it is desirable to avoid friction and to promote that cooperation
between nations and peoples upon which the peace of the world depends;
THEREFORE, the undersigned governments having agreed on certain
principles and arrangements in order that international civil aviation may
be developed in a safe and orderly manner and that international air
transport services may be established on the basis of equal opportunity
and operated soundly and economically;
HAVE ACCORDINGLY concluded this Convention to that end.
Today, virtually all nations (at least 191) have signed the Convention on
International Civil Aviation and become members of ICAO. The organization
has succeeded famously in achieving the first goal. ICAO-adopted technical
standards, known as international Standards and Recommended Practices
(SARPs), are published in a series of documents known as Annexes to the
treaty. The smooth and efficient functioning of international civil aviation is
largely attributable to ICAO’s work. Wherever you fly on earth, you have
ICAO to thank for communication and navigation systems that are
compatible with the equipment in your aircraft and for the ability to
communicate with air traffic controllers in the English language (an area
ICAO has targeted for further improvement, because ATC English
capabilities still vary widely across the globe). ICAO has also developed
internationally accepted standards for the transport of hazardous materials by
air and is actively pursuing agreement to achieve international harmonization
of aircraft certification and operating rules as a goal to help reduce airlines’
operating costs.
ICAO’s Technical Cooperation Programme provides technical expertise,
consultation, training, and airport and airway equipment to developing
countries.
Concerns over global environmental deterioration brought ICAO to the
forefront of organizations and businesses collaborating to minimize
aviation’s impact on the problem (quantified as about 2 percent of the
greenhouse gas emissions contributing to global warming, but probably
disproportionately effective in exacerbating the problem, since much of these
emissions occur at the upper levels of the atmosphere). Frustrated by a lack
of progress in efforts to achieve a global solution to greenhouse gas
emissions, the European Union (EU) adopted the market-based cap-and-trade
Emissions Trading Scheme (ETS), with civil aircraft to be included in 2012.
The EU ETS—which would apply to the entire length of any flight into, out
of, or through EU airspace—provoked a firestorm of adverse response that
brought the world to the brink of a global trade war over the issue. Russia
denied overflight rights to EU-based Finnair, China refused to pay for and
accept delivery of 30 completed jetliners from EU-based Airbus, the U.S.
Congress passed legislation prohibiting U.S. airlines from participating in the
EU scheme, and India and other nations voiced objections to the EU and
considered retaliatory options. ICAO had long sought a global solution for
civil aviation emissions, but was making no progress toward achieving
consensus. When this unilateral action by the EU raised such ire, the
organization rapidly ramped up its effort and the EU postponed the effective
date for application of its ETS to civil aircraft until after the ICAO governing
body’s next meeting, the ICAO Assembly in the fall of 2016, to give the
organization a chance to resolve the issue.
Accomplishments in the area of the Chicago conferees’ second goal were
less sweeping, but significant. At that 1944 conference, The United States
sought basically a free global market for the airlines, proposing that the
nations of the world agree to recognize the Five Freedoms of the Air (see
Figure 1-9).
Figure 1-9. The Five Freedoms of the Air, illustrated for an airline of nation A.
Although much of the world might jump at such a generous offer today, to
gain greater access to comparatively lucrative U.S. markets, in late 1944 the
U.S. was poised to dominate the international airline industry at war’s end. At
the beginning of World War II, there were only 365 transport aircraft in the
U.S., but by war’s end the U.S. had produced over 300,000 aircraft, of which
over 11,000 were transports such as the C-47 (DC-3) and C-54 (DC-4), most
of which would be taken out of service and disposed of as surplus shortly
after the war’s end. In the same time period, the U.S. had trained hundreds of
thousands of aircrew members, including pilots, navigators, and loadmasters,
along with mechanics, weather forecasters, dispatchers, and other essential
support personnel. Many of these had operating experience on international
routes and at foreign bases, and most would be mustered out of the armed
forces and on the civilian job market shortly after the end of the war.
It would have required little more than a change of aircraft paint and crew
uniforms to transform that military airlift fleet into civil airlines having a
greater capacity than all of the other nations could hope to muster for many
years. And unlike the other major powers on both sides of the war, America’s
aircraft manufacturing industry emerged intact, with plants undamaged, new
designs in progress, and (with the abrupt cancellation of military orders)
excess capacity to produce those new transports.
Thus it is not surprising that national protectionism prevailed over free
market competition. The conferees agreed only on the principle of
international sovereignty in airspace, providing that no scheduled
international air service may be operated over or into a nation or its airspace
without its permission.
A separate agreement known as the Transit Agreement was also signed at
that time in Chicago by fewer than all of the conferees, agreeing to the first
two Freedoms (overflights and nontraffic stops). Foremost among the
nonsigners were the security-obsessed nations of the communist bloc (also
understandable, considering the devastation they had received and were still
receiving from Axis air power). The other Freedoms were left to be
negotiated between individual nations, although as part of the Chicago
Conference, ICAO did develop a standard form of bilateral (between two
nations) agreement for exchange of air routes. The form has been widely used
since and is generally recognized as a significant contribution to the high
degree of consistency in commercial international air service agreements for
well over a half-century. According to ICAO, over 3,500 bilateral air service
agreements are in effect today.
Additional Freedoms discussed since the Chicago conference and included
in some bilateral and multilateral (between more than two nations) air service
agreements are:
Sixth Freedom: The right to carry traffic from one nation through the
homeland and on to a third nation.
Seventh Freedom: The right to carry traffic between two foreign
nations without going through the home country.
Eighth Freedom: (Also called cabotage.) The right to carry traffic
between two points in a foreign country, such as if a European airline
were permitted to operate commercial flights between New York and
Los Angeles. If the origin and destination are located in
geographically separated parts of that country, such as the route
between Los Angeles and Anchorage, it is called grand cabotage.
In the United States, the president’s National Commission to Ensure a
Strong Competitive Airline Industry found that the prevailing bilateral
agreement system was no longer conceptually sound or sufficiently growthoriented in the global trade environment. The Commission recommended that
U.S. negotiating efforts should focus on creating multilateral agreements.
Open Skies Agreements are the latest fashion in treaties for international air
service. Unlike the bilateral agreements that were typical for many decades
following the Chicago conference, open skies agreements (which may be
either bilateral or multilateral) do not limit the service provided by airlines of
signatory nations to specific city pairs (i.e., New York City–Paris), but give
the airlines of both countries the right to operate between any point in one
country and any point in another, as well as to and from third countries
(“beyond rights”). Other features of open skies agreements designed to
encourage competition include:
Free market competition: No restrictions on number of airlines the
signatory nations may designate to provide service under the treaty, or
on capacity, frequency of service, or types of aircraft.
Pricing determined by market forces: A fare can be disallowed only
if both governments concur (“double disapproval pricing”), only
allowed for certain specified reasons intended to assure competition.
Fair and equal opportunity to compete: Carriers of all signatory
nations may establish sales offices in all others, may convert earnings
and remit them to the home country in hard currency and without
restrictions, may provide their own ground handling services (“selfhandling”) or choose among competing providers, may arrange
ground transport of air cargo, and are guaranteed access to customs
services.
Cooperative marketing arrangements: Designated airlines may
enter into code-sharing or leasing arrangements with airlines of other
signatory countries, with those of third countries, and even with
surface transportation companies.
Liberal charter arrangements: Airlines may choose to operate under
the charter regulations of any signatory country.
“Seventh Freedom” rights: Some open skies agreements include
authority for an airline of one signatory nation to operate all-cargo
services between another signatory nation and a third country via
flights not linked to the airline’s homeland.
Safety and security: Each signatory government agrees to observe
high standards of aviation safety and security, and to render assistance
to the others in certain circumstances.
Dispute settlement and consultation: The model text agreement
(available on the State Department website, (www.state.gov) includes
procedures for settling differences that may arise under the agreement.
In 2007, the United States entered into an open skies agreement with the
European Union. The agreement allows any airline of the EU and any airline
of the U.S. to provide service between any point in the U.S. and any point in
the EU. The agreement favors U.S. carriers in that they are also allowed to fly
between points in the EU, while EU airlines are not permitted to provide
service between points in the U.S. or own a controlling interest in a U.S.
airline. The United States has concluded over 70 bilateral and multilateral
open skies agreements to date.
First Freedom rights of overflight were granted by Russia beginning in
2001, allowing shorter and more efficient polar great circle commercial
airline routes between North America and Asia, saving the airlines millions
of dollars each year in fuel, staff costs, and landing fees at intermediate
airports such as Anchorage.
Air piracy (hijacking and terrorism) has proved to be one of the most
difficult and enduring problems facing ICAO. Such unlawful interference
with civil aviation is hardly a recent phenomenon. The first reported episode
occurred in 1784, when a young man forced his way into the basket of a
Charliere (helium) balloon and demanded at sword-point that he be carried
aloft. ICAO statistics show that such incidents were extremely rare until
1968, when hijacking became a fad. Some 200 aircraft hijackings occurred
worldwide from 1968 through 1970. The perpetrators were mostly criminals
seeking to escape, mentally unstable persons, or political militants. A few
acts of sabotage against airliners have simply been murders perpetrated in an
attempt to collect on the life insurance of a targeted passenger. Politically
motivated terrorists have been responsible for the most recent hijackings and
acts of sabotage against civil aviation, such as the blowing up of Pan Am
flight 103 over Lockerbie, Scotland, and the hijacking of four U.S. airliners
for use as weapons to perpetrate the most lethal terrorist attack in human
history on the twin towers of the World Trade Center in New York City and
the Pentagon in Washington, D.C. (The fourth aircraft crashed in rural
Pennsylvania after the passengers, learning of the fate of the first three,
attempted to regain control of the aircraft from the terrorists and prevented it
from reaching its still-unknown intended target—likely either the White
House or U.S. Capitol building—no doubt saving many other lives in the
process.)
The problem is one of global dimensions, which no single nation can
effectively solve. Yet the frequent presence of a political motive for such acts
has greatly complicated efforts to achieve global consensus on an appropriate
approach to solutions. In such situations, although the nation whose airliner is
attacked and others unsympathetic to the attackers’ particular cause may view
the attackers as terrorists or common criminals, others sympathetic to their
cause may view them as heroic freedom fighters or even religious martyrs.
Given the level of factionalism and hatred in the world, it sometimes seems
amazing that any agreements can be reached over such emotional and
politically charged issues, but under ICAO’s leadership, about 100 nations
have signed treaties agreeing to promptly return hijacked aircraft to their
countries of origin, permit hijacked passengers to continue their journey as
soon as possible, and hold suspected hijackers for investigation and either
prosecute them under their own law or extradite them to the country whose
aircraft was hijacked for prosecution under its law. While the threat has by no
means been eliminated (because a significant number of nations have not
signed the treaty and some continue to offer safe haven to hijackers and
terrorists whose political agendas they support), significant progress has been
made on the diplomatic front.
Meanwhile, as efforts continue to achieve world peace and improve
international civil aviation safety and security, it appears certain that the role
of ICAO will continue to increase in importance.
International Air Transport Association (IATA) (www.iata.org)
When the Chicago Conference failed to reach agreement on its second goal of
regulating international civil aviation’s routes, fares, frequency, and capacity,
the international airlines formed their own trade association, the International
Air Transport Association, to address these issues. IATA is also
headquartered in Montreal and represents the interests of some 230 airlines
that carry 93 percent of global passenger traffic. Initially operating primarily
as a cartel to divide up markets and fix prices on international air routes,
IATA soon came into conflict with U.S. antitrust laws. As a result, the
association discontinued that function.
Today, one of IATA’s most important functions is its clearinghouse in
London, which rapidly settles accounts amounting to over $30 billion
annually for interline transactions among member airlines, airline-associated
companies (such as companies providing ground handling), and associated
travel agents. Airlines for America (A4A), formerly known as the Air
Transport Association (ATA), performs a similar clearinghouse function for
U.S. airlines in domestic operations. Without these clearinghouses, arranging
travel requiring a change of airline would be an unbelievably complicated
nightmare, particularly in the international arena where currency differences
and fluctuating exchange rates add to the intricacy of the task.
IATA also works closely with ICAO on technical issues involving airline
operations, safety, and security and has formed an alliance with the Flight
Safety Foundation (FSF) to exchange information and promote the best
airline safety practices.
The association has strongly urged the ICAO Assembly to:
Agree on a roadmap for development of a single global market-based
measure (MBM) for aviation emissions to be adopted in 2016 and
implemented in 2020.
Agree that the goal is for aviation to be carbon-neutral by 2020, that
aviation emissions should be counted only once, and that the global
MBM should take account of the different operating circumstances of
operators around the world.
Develop milestones for the MBM, including an ICAO standard for
monitoring, reporting, and verifying aviation emissions, and a
mechanism to define the quality of verified offset types that could be
used.
IATA’s Aviation Training and Development Institute offers a wide variety
of courses in airline and airport management, aviation law, aviation security,
airline safety, pilot selection, crew resource management, airport planning,
and air navigation services. These courses are taught in 66 locations around
the world, as well as through distance learning.
The association also publishes about 300 reference and training
publications vital to the industry on topics such as safety, security, ground
handling, transporting dangerous goods, and airport development.
International Registry of Mobile Assets (IRMA)
(www.internationalregistry.aero/ir-web/)
In 2001, the Cape Town Convention on International Interests in Mobile
Equipment (an international treaty) created the International Registry of
Mobile Assets, which became effective in 2006. Intended to facilitate
financing and reduce costs for international transactions in aircraft, railroad
rolling stock, and spacecraft, the registry provides a global single-source to
identify legal interests in certain specified aircraft, regardless of their nation
of registry. Although physically located in Dublin, Ireland, the registry
operates entirely via secured transactions online. Details of the registry and
requirements of the treaty are covered in Chapter 11 on Buying and Selling
Aircraft.
2
FAA Enforcement
As we saw in the previous chapter, the Federal Aviation Regulations have
always been the “law.” The FAA employs thousands of aviation safety
inspectors and hundreds of attorneys to enforce this body of law. Aviation
professionals and general aviation operators are probably now more likely to
encounter an FAA inspector than any other law enforcement officer.
The FAA issues certificates to a wide variety of specialized personnel
(such as pilots, flight engineers and navigators, maintenance personnel,
maintenance inspectors, air traffic controllers, aircraft dispatchers, ground
and flight instructors, and parachute riggers); businesses (such as aircraft and
component manufacturers, aircraft and component repair stations,
commercial air carriers, air taxi and commercial charter operators, helicopter
external load operators, and flight and aviation maintenance schools);
operators of airports serving air carriers (most of which are regional or local
governmental entities); and even products (such as individual aircraft, each of
which receives an airworthiness certificate). The FAA also has the power to
deny, suspend or revoke any and all of these certificates.
Because FAA actions to enforce the FARs are characterized as
administrative law rather than criminal law, FAA inspectors are generally not
required to advise suspects of their legal rights. In an effort to appear to be
good cooperative citizens, aviators, maintenance personnel, aviation
managers and others often make voluntary statements to FAA inspectors and
air traffic controllers that are subsequently used by the agency to suspend or
revoke their certificates or to punish them by imposing substantial fines.
The purpose of this chapter is to furnish a practical working knowledge of
your legal rights in FAA investigation and enforcement situations. A separate
course of study can and should be devoted to the organization and
requirements of the FARs. Although the majority of the examples used in this
chapter involve pilots, the same principles apply to actions against all
individuals, businesses, and even public entities (such as airports serving air
carriers) that may be charged with FAR violations.
A RANGE OF POSSIBLE CONSEQUENCES
When the FAA has reason to suspect that an individual or company has
violated one or more of the Federal Aviation Regulations, the FAA can
choose from a variety of penalties to punish the violator:
1. Administrative Dispositions.
When the FAA considers the violation to be minor, of little consequence but
too serious to ignore altogether, it may dispose of the case administratively
through the issuance of a warning notice or letter of correction.
A. Warning Notice. Being issued a Warning Notice by the FAA is very
much like receiving a warning from a police officer in a traffic case.
The notice outlines the facts about the incident and indicates that it
may have been a violation of the FARs but that the FAA has decided
not to file formal charges.
B. Letter of Correction. When a minor violation involves a condition that
has since been corrected (for example, if the FAA inspector found an
aircraft’s ELT battery out-of-date and the owner immediately rectified
the discrepancy), the FAA may issue a Letter of Correction outlining
the facts of the incident or condition, stating that it may have been a
violation of the FARs, but noting that in light of the corrective action
taken, no enforcement action will be pursued.
The Letter of Correction is also used to provide for remedial
training for some FAR violations, instead of punishment. This allows
an individual suspected of a violation to submit to a course of
remedial training (instead of having to face a certificate suspension
or fine) if:
i. The violation did not occur in connection with an operation for
compensation or hire in air transportation, and
ii. The FAA is satisfied that you have a constructive attitude so that
remedial training will probably lead you to a life of future FAR
compliance, and
iii. Your violation was not one that would indicate an underlying
basic lack of qualification to hold your certificate, and
iv. You don’t already have a record of noncompliance with the
FARs, and
v. Your violation was not deliberate, grossly negligent, or a criminal
offense.
Unlike reexamination (discussed later in this chapter), remedial training
does not include a testing component; so as long as you take the agreed
training with an instructor of your choice during a time period that you and
the FAA agree to, you will be off the hook with a Letter of Correction.
In my experience, most FAR violations are unintentional errors made by
people who are really trying to comply with the regulations but make a
human error. A little refresher training with an instructor never hurt anybody,
and every client I have been able to help get into this program has come away
feeling like a better pilot for the experience. And most importantly, remedial
training doesn’t result in an FAR violation going on your record. Presented
with the option between remedial training and an enforcement action, I’d
snap up the opportunity for remedial training every time.
If a Warning Notice or Letter of Correction is issued, this becomes a part of
your airman record at the FAA Aeronautical Center in Oklahoma City.
Warning Notices and Letters of Correction are automatically removed from
your airman record two years after issuance. Meanwhile, this record is always
consulted by FAA inspectors investigating alleged violations, and if it
appears that the person or the company under investigation has a previous
administrative disposition of record, a harsher penalty will be sought in the
subsequent case, on the theory that “last time we were nice guys and gave
him a break, and he obviously didn’t learn his lesson from that, so this time
we have to hit him harder to get his attention.” Under current FAA policy,
administrative dispositions are frequently used to provide remedial training to
rusty individual certificate holders and under self-reporting programs for air
carriers and manufacturers (discussed later in this chapter), but legal
enforcement action in the nature of a certificate action or civil penalty is still
taken quite frequently.
2. Certificate Action.
Where the violation is one of an operational nature (rather than, for example,
a mere delinquency in recordkeeping), the FAA prefers to suspend or revoke
the FAA certificate(s) held by the violator. The election between revocation
or suspension—and, if suspension is elected, the duration of the suspension
imposed—is determined by the FAA attorney handling the case, with the
advice of the inspector who conducted the investigation and by reference to a
table of sanction guidelines issued by the FAA’s Washington, D.C.,
headquarters. Factors considered by the attorney in reaching this decision
include:
A. Precedent. Penalties previously imposed by the FAA and upheld by
the NTSB on appeal in similar cases serve as a guideline for future
penalties.
B. Current FAA Enforcement Priorities. In the course of its safetyregulating duties, the FAA looks for patterns appearing in its
investigations of accidents, incidents, and violations, and as a matter
of policy focuses on certain types of misbehavior that may appear to
be “getting out of hand” or causing particular concern. These receive
increased emphasis in inspections and related enforcement actions.
When an alleged violation falls within an area designated by FAA
management for such special emphasis, penalties harsher than those
previously applied for such a violation may be sought on the theory
that precedent punishment has proven insufficient to deter such
violations.
C. Individual Considerations. In selecting the sanction to impose on an
individual violator, the FAA attorneys are also instructed to consider
the following factors:
i. The degree of hazard to the safety of other aircraft and
persons or property in the aircraft or on the ground created
by the alleged violation;
ii. The nature of the violation (whether inadvertent or
deliberate);
iii. The violator’s previous record (the FAA expects everyone
to obey the law and have a violation-free record, so a
previous violation is considered an aggravating
iv.
v.
vi.
vii.
viii.
circumstance that will lead to a harsher penalty in a later
case, but a clean record is not considered a mitigating
factor to reduce the penalty);
The alleged violator’s level of experience (moreexperienced pilots are expected to make fewer mistakes);
The attitude of the alleged violator (a positive attitude
toward FAR compliance may soften the penalty, while a
bad attitude may lead to harsher treatment);
The nature of the activity involved (private, public, or
commercial, the latter calling for a harsher penalty);
Any ability of the alleged violator to absorb the sanction
without any real impact (such as by taking an earned
vacation during the period of suspension or an employer’s
offer to pay any fine imposed); and
Whether the violation indicates an underlying lack of
qualifications on the part of the violator to hold a
certificate (either as the result of lack of skills or
knowledge or an attitude of disrespect toward the FARs).
D. The Horror Factor. The FAA attorney’s subjective “gut” feeling
about the seriousness of the violation also plays a role in the selection
of a penalty. Few FAA attorneys are pilots or have any other practical
background in aviation, so this evaluation is often affected by views
expressed by the investigating inspector and any sensational publicity
that may have appeared in the news media.
3. Civil Penalties (fines).
The FAA attorney has the option of imposing a fine instead of taking
certificate action in some cases. (Constitutional prohibitions against double
jeopardy have generally been construed to allow the FAA to either impose a
fine or to take certificate action, but not to do both for the same violation.)
For operational violations, FAA enforcement policy generally encourages the
use of certificate action against individuals and civil penalties against
companies. However, if the FAA feels that the management of a certificateholding company (such as an air carrier or repair station) is not making a
serious effort to obey the FARs, it will not hesitate to suspend or revoke that
company’s operating certificate. A civil penalty may be the only punishment
available against an FAR violator who is not required to hold an FAA
certificate, such as the pilot of a single-seat ultralight, an operator of a small
unmanned aircraft (“drone” or model aircraft), or a skydiver. However, if that
individual does hold an FAA airman certificate (but was not exercising the
privileges of that certificate at the time), the FAA may still be able to take
action to suspend or revoke that certificate for careless or reckless operation
(unmanned and model aircraft are still aircraft within the definitions
appearing in the Federal Aviation Act and FARs) or for demonstrating
judgment that calls the person’s qualifications into question.
If the FAA attorney elects to proceed with a civil penalty (fine), the agency
may seek to collect a maximum of $1,000 per violation in most cases against
individuals and some businesses, $10,000 per violation by air carriers and
airport operators, or $250,000 for falsification of documents.
Most incidents give rise to more than one regulatory violation, if only
because whenever an FAR is violated, the FAA almost always adds a residual
charge of a violation of 14 CFR §91.13 (careless or reckless operation) on the
theory that it is careless or reckless to violate any FAR. For continuing
operations, the FAA may count them on a per-flight or per-day basis. For
example, if an airplane made a dozen flights after an airworthiness directive
(AD) was due but had not been performed, the operator could be fined $1,000
per flight for the overdue AD plus $1,000 per flight for a careless or reckless
operation. In the alternative, if this situation was allowed to exist while the
aircraft was operated over a period of thirty days, each day could count as a
violation of each of these regulations. In either event the potential fine could
quickly build to an astronomical number. If the violator is an air carrier or
airport operator, multiply that result by ten.
4. Summary Seizure of Aircraft.
If the FAA charges you or your company with a violation and is concerned
about your ability to pay such a fine, the agency also has the power to seize
the aircraft involved and hold it until the fine is paid or bond is posted to
cover the fine.
5. Reexamination.
If an accident, incident, or report of an FAR violation causes the FAA to be
concerned about your competency, the FAA may require you to submit to
reexamination in the area of concern. This may include a repetition of
written, oral, flight, or other practical tests required for the certificate
involved. The FAA must have some reasonable basis for requesting such
reexamination, but if it does you have no right of appeal and must submit to
reexamination, at your own expense.
If you do not submit to reexamination within a reasonable period of time,
that in itself is an FAR violation for which the FAA may suspend or revoke
your certificates. For example, if during IFR operations ATC observed you
having some difficulty executing a published instrument approach procedure,
wandering all over the sky, they might then require you to submit to another
instrument flight test with concentration on instrument approach procedures
as a condition of keeping your instrument rating. Before any reexamination, it
is wise to spend some time with an instructor polishing your skills and
updating your knowledge in the area in question.
Where an FAR violation caused the concern about your qualifications, the
FAA can both require you to submit to reexamination and punish you for the
violation by certificate action or fine. This is generally not considered to
violate the constitutional prohibition against double jeopardy since the
reexamination is not considered punishment. The proposed Pilot’s Bill of
Rights 2, if enacted, would limit the Administrator’s power to require an
airman to submit to reexamination, only allowing it based on acts or
omissions that occurred while the airman was exercising the privileges of the
certificate, or if the Administrator has reasonable grounds to believe the
airman obtained the certificate by fraud.
INVESTIGATIONS
The FAA is required by Congress to investigate all reports of FAR violations,
regardless of how far-fetched the initial report may sound. Most reports of
FAR violations are investigated by FAA inspectors, usually those assigned to
a Flight Standards District Office (FSDO).
The majority of FAR violations come to the attention of these FAA
inspectors during the regular conduct of their duties, including aircraft
accident investigations; routine checks (such as base inspections of aviation
businesses); and airport surveillance (including ramp checks of aircraft
operators and the hated “weekend duty” when the inspector on call for
accident investigations may meanwhile roam around local general aviation
airports, looking for problems like a cop on the beat).
The FAA’s air traffic controllers are the second major source of reports of
FAR violations. For example, if a flight operating under instrument flight
rules (IFR) deviates from an altitude assigned by the ATC, a report may be
forwarded to the inspectors for investigation and prosecution as an FAR
violation. In fact, the ATC computer program has a feature, officially named
the Quality Assurance Program and generally called “the Snitch Patch,” that
automatically calls many deviations from clearances to the attention of FAA
enforcement personnel.
ATC has caught and reported thousands of airspace…
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