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FAA – Federal Pre-emption and Aircraft Certification: You Have to Read This Opinion!!

Today, we turn our attention to the latest chapter in a long saga concerning the scope of federal preemption over product liability claims made against manufacturers of certificated aviation component parts. Back in 2014, the United States District Court for the Middle District of Pennsylvania ruled that design defect claims against certificated product manufacturers  were completely preempted by the Federal Aviation Act.  In 2016, the United States Court of Appeals for the Third Circuit reversed, finding that the certification process does not automatically preempt the entire field of safe design.  The Court of Appeals did, however, leave open the possibility that under the right facts, liability under state tort law might be incompatible with the Federal Aviation Regulations, producing enough of a conflict to preempt state law, and ordered the lower court to take anther look at the issue.

In the District Court’s latest 115-page decision, Judge Brann has found that product liability claims against Lycoming are preempted. In this case, the engine in question was manufactured by Lycoming in 1969 and shipped to a user, who never actually installed it in an aircraft.  Instead, the engine sat in long term storage for 29 years.  In 1998, the engine was installed in a Cessna 172N, which did not even exist when the original engine received its type certificate.  In 2004, after the aircraft was struck by lightning, the carburetor was overhauled by a third party, resulting in what was described as a “Frankenstein’s monster” carburetor comprised of two different after market halves manufactured decades apart, and joined together with a third set of parts from a different after market parts manufacturer.  The plane crashed in 2005, killing the pilot and seriously injuring a passenger.

Suit was subsequently filed by plaintiff against Lycoming and the company that performed the “overhaul” of the carburetor, claiming that the accident resulted when the float bowl came loose from the carburetor’s throttle body, causing a loss of power.  In 2010, the Plaintiff settled with the defendant who performed the overhaul for $2 million, and continued to pursue Lycoming.

The plaintiff alleged that Lycoming was liable based on its design of the original carburetor, on which the after market parts were based. The plaintiffs proposed, in accordance with Pennsylvania tort law, that Lycoming could have changed a number of the features of the design of the gasket and lock washers, which would have made the product safer.  The Court noted, however, that all of those proposed modifications would have been “major changes” under the regulations, and Lycoming could not have made them without FAA approval.  In addition, to the extent that the changes could or should have been made by the third party that did the overhaul, that company had its own authority from the FAA that Lycoming had no influence or control over.

Apart from this significant holding, the opinion is also noteworthy for another reason: the way it is written. For anyone who has struggled to understand how aircraft are certified, how after market parts are certified, the role that designated engineering representatives play, and how the certification system is navigated, this decision is for you.  The Court lays out the law with an admirable amount of detail and clarity.  In addition, the opinion is fun to read because it is spiced with passages that go beyond normal dry legal analysis.  For example, the opinion opens with the following:

A weightless innocence so often attends our daydreams of flight. As the American aviator John Gillespie Magee, Jr., loftily described it, pilots “dance[ ] the skies on laughter-silvered wings,” soaring “high in the sunlit silence.” Sadly, it would seem that Magee’s “high untrespassed sanctity of space” must belong to a universe far away from the dark origins and convoluted history of this case.

Similarly, the Court’s analysis sums up the long path this case has followed over the past 10 years with these words:

At first glance, this case appears to present puzzling questions of conflict preemption and proximate cause in the field of aviation. Yet, I have come to suspect that its complexity, like that of a shimmering oasis in the eyes of a weary wanderer, may be nothing more than a clever mirage flowing from strained interpretations of the law and academic daydreams divorced from fact.

While I am sure most of us can find things to read at the beach that are more exciting, if you want to learn something about federal preemption and aviation law, this is an opinion worth your while.

A copy of the opinion can be found HERE.

 

FAA – Federal Pre-emption and Aircraft Certification: You Have to Read This Opinion!!

HONESTY IS THE BEST POLICY . . . HONESTLY

No pilot wants to put their certificate in jeopardy. As a result, if there is a minor accident or incident, the first, panicked reaction might be to lie about what happened.  As one Wayland, New York man is now finding out, this is the worst thing you can do.

Brian Woodhams had a student pilot’s license in October 2015. As a result, he was only permitted to fly alone or with a flight instructor.  On October 31, 2015, Mr. Woodhams had difficulty landing his Piper Cherokee, and wound up running off the runway and putting the aircraft in a ditch.  After the accident, Mr. Woodhams told FAA Aviation Safety Inspectors that he was the only person in the aircraft.  He also told the inspector that his 15 year old son was at the airport at the time of the incident and, upon seeing the crash, came out to the wreckage, where he slipped and fell as he climbed up the flap, resulting in a bloody nose.

The inspectors continued their investigation, and came across a witness who claimed to have seen Mr. Woohdams’ son in the aircraft. Mr. Woodhams denied the allegation, reaffirmed that  he was the only person on board, and stated that his son only arrived at the crash scene later.  Mr. Woodhams also submitted a Pilot Accident Report to the NTSB, claiming that he was the sole occupant of the aircraft.

Two months later, Mr. Woodhams got a visit from a Special Agent of the DOT Inspector General. During the interview Mr. Woodhams was asked to explain additional evidence that had surfaced showing his son was on the plane.  Mr. Woodhams persisted in his denials.

Needless to say, Mr. Woodhams’ lies continued to unravel until he was forced to admit the truth. He now faces much more than just the loss of his pilot’s license.  Pursuant to 18 U.S. Code § 1001, any person who “falsifies, conceals, or covers up by any trick, scheme, or device a material fact” or who “makes any materially false, fictitious, or fraudulent statement or representation” involving “any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States” commits a felony punishable by up to 5 years in prison and a $250,000 fine.  Note that there is no requirement that the false statement be made under oath.

While this is not a crime that is routinely pursued every time someone lies in the course of an investigation, it is a powerful tool that the government can use to punish in appropriate circumstances. In the case of Mr. Woodhams, he has now been forced to plead guilty to a violation of this statute, and will be sentenced on November 3.

So remember, when it comes to accident reports, honesty really is the best policy.

HONESTY IS THE BEST POLICY . . . HONESTLY

Aviation Symposium Webinar Series: FAA Reauthorization Act of 2017…Everything you want to know

We would like to offer our thanks for the huge turnout we had for our free webinar on FAA Reauthorization Act of 2017.  For those of you who could not make it, we are providing a link to the full presentation so that you can listen at your leisure.

Aviation Symposium Webinar Series: FAA Reauthorization Act of 2017…Everything you want to know

NTSB: BOARD ISSUES FINAL RULES

For the first time in 20 years, the regulations governing how the NTSB conducts its investigations have been changed. The new rules are the culmination of a process started by the Board over five years ago.  The new rules make official much of the guidance and informal processes that have developed over that time.  The following is a summary of the more important changes.

831.4   Recommendations and Cost-Benefit Analysis: The NTSB rejected a proposal to include a cost-benefit analysis when making its recommendations.   The Board felt that they did not have the staff or the necessary expertise to conduct this type of analysis.  In addition, the NTSB noted that when the appropriate agency, such as the FAA, conducts a rulemaking to implement the Board’s recommendations, additional facts on the costs and benefits often comes to light, calling into question the merits of the NTSB performing its own analysis outside of the rulemaking process.

831.5   Priority of NTSB Investigations: The original draft regulation was based on the provisions of 49 U.S.C. § 1131(a)(2)(A), which gives the NTSB investigation priority over investigations conducted by other public entities.  It required other agencies to consult with the NTSB Investigator in Charge prior to gathering evidence or questioning witnesses, to give the  NTSB any evidence they collect, and inform the NTSB on any corrective or mitigating measures they are taking while the investigation is ongoing.  The Department of Transportation objected to these changes, claiming that the NTSB cannot require advance approval of actions by other agencies and the draft regulation would potentially interfere with its work.  While the NTSB softened some of the language in crafting the final rule, it did not back down on the core principal that the NTSB has priority over other agencies, and affirmed that the NTSB “has first right to access wreckage, information, and resources, and to interview witnesses . . . .”  The regulation also affirms in several places that no other agency may participate in the probable cause finding.

831.6   Confidential Business Information:  The proposed revision to the rule drew comments from Boeing and Textron that in recent years, the NTSB had not been protecting confidential business information to the same extent that it would under the Freedom of Information Act, and that if this trend continued, it could “inhibit the free flow of information” in an investigation.  The final rule confirms the NTSB’s authority to release a trade secret without consent when it is necessary to support a key finding or safety recommendation.  It does, however, provides a procedure for notifying the owner prior to release and for implementation of a process to negotiate with the owner of the trade secret and limit the disclosure to the minimum necessary to accomplish the NTSB’s goals.  In addition, the NTSB reaffirmed that its decisions on what information should be released in the public docket will follow the guidance in the Freedom of Information Act for withholding confidential information.

831.7   Witness representation:  The final rule makes clear that a witness has the right to be accompanied by a single representative, who may be an attorney.  The rule also makes clear that a representative may be thrown out of an interview if he or she disrupts the interview process.  Some commenters argued that a pilot should have the right to more than one representative, specifically one from the employer and one from the union, because each has a different interest.  The NTSB rejected this concern, noting that the sole interest of a witness’s representative should be supporting and advocating for the witness, and not any third-party.

As a final note, a number of commentators asked that the NTSB include a formal procedure governing the removal of a party from an investigation, including permitting review of the decision by a court. The NTSB rejected this proposal, saying that removal from an investigation is not a deprivation of a significant property interest that requires any type of formal hearing.  The NTSB affirmed that it would only use the process as a last resort, but declined to further define the circumstances under which removal would be appropriate.

For those of you who want to take a closer look at the regulations and the explanatory material, it can be found at this LINK.   If you would like additional information, do not hesitate to contact us.

NTSB: BOARD ISSUES FINAL RULES

HERE WE GO AGAIN: CONGRESS BEGINS ACTION ON THE FAA REAUTHORIZATION ACT

“HERE WE GO AGAIN”

CONGRESS BEGINS ACTION ON THE FAA REAUTHORIZATION ACT

JOIN US FOR OUR FREE WEBINAR THURSDAY, JUNE 27, 2017 AT 1:00 PM

It’s that time of year again. As the clock runs out on last year’s FAA reauthorization, both the House and Senate are scrambling to stake out their priorities.  Join us this Thursday, June 27, 2017 at 1:00 PM for our free webinar providing an in-depth look at the legislation, who the winners and losers are, and the timeline for action.  Click this LINK to register.

Here is a sneak peek at some of the Congressional initiatives that may shape the future of aviation:

The Drone Federalism Act:  This law, jointly proposed by Democrats Diane Feinstein (CA) and Richard Blumenthal (CT), and Republicans Mike Lee (UT) and Tom Cotton (AR), proposes to carve out a large swath of the lower levels of the national airspace and give state and local governments broader powers to regulate aviation activity in these areas.  If enacted, it would represent the first major roll-back of the FAA’s near total control over aviation and could have broad implications for the ability to the FAA to fully integrate UAS into the airspace system.

21st Century AIRR Act:  This is the House of Representatives’ version of the FAA Reauthorization Act.  At 334 pages, the current draft of the bill covers an enormous range of topics, including:

  • Privatization of the air traffic control system: The bill calls for the creation of an independent, not-for-profit air traffic control service in the United States.
  • Streamlining and reforming of the FAA certification process: Creates a Safety Oversight and Certification Advisory Committee to coordinate between FAA and industry, improves training for FAA inspectors, and gives manufacturers greater authority under their delegated certification authorities. 
  •  Strengthens ASAP: The Aviation Safety Action Program is designed to encourage voluntary safety reporting without fear of repercussions.
  • Requires FAA Policy Updates: The bill instructs the FAA to address pilot rest and duty rules for Part 135 operators, the transportation of lithium ion batteries, and cyber security.
  • UAS Policy Changes: Includes the creation of UAS air carrier certificates and the preparation of a DOT privacy study, and encourages development of sense and avoid technology.

 Senate FAA Reauthorization Bill:  Although it does not have a snappy name like the House version, the Senate’s version of the Act is still an impressive 314 pages, covering: 

  •  No ATC privatization: The differences between the House and Senate on this issue are lining up the same as last year, when the proposal was defeated. This year, however, President Trump has already come out in favor of the idea. Will it be enough to tip the balance? 
  • UAS Policy Changes: Criminalizes “reckless” drone activity near manned aircraft and airports and gives the FAA new authority to create a drone registration system.
  • Streamlining and reforming of the FAA certification process: Similar to the House version, the Senate is also seeking to further reform the FAA’s certification process
  • Increases in funding: Provides an additional $400 million for the Airports Improvement Program
  • Passenger Rights: Stops carriers from denying passenger boarding after a gate attendant has approved it, unless there is a legitimate safety or security reason.

Join us on Thursday for the complete run-down of all the pending legislation. In addition, we will keep you informed as the bills work their way through the Congress.

HERE WE GO AGAIN: CONGRESS BEGINS ACTION ON THE FAA REAUTHORIZATION ACT

SYMPOSIUM WEBINAR SERIES: FAA REAUTHORIZATION ACT OF 2017 . . . EVERYTHING YOU WANT TO KNOW

It’s that time of year again. The Congress is about to unveil comprehensive legislation that has the potential to transform the aviation industry.

A little over a year ago, the House of Representatives began consideration of a long term comprehensive FAA reauthorization act, ambitiously entitled the Aviation Innovation, Reform, and Reauthorization Act of 2016 (AIRR). What ultimately passed, however, was a pared down version that only funded the FAA through the summer of 2017.  As a result, the pressure is on the Congress to finally pass a more ambitious, long term solution.

The bill is currently picking up speed, with Chairman Bill Shuster of the House Transportation and Infrastructure Committee and President Donald Trump jointly making an announcement at the White House on June 5th to set forth the President’s FAA and air traffic control reform initiative. This will be followed by U.S. Secretary of Transportation Elaine Chao’ testimony on Thursday, June 8, 2017, at 9:30 a.m., in 2167 Rayburn House Office Building on the administration’s priorities.

While Chairman Shuster’s long-standing priority to privatize the air traffic control system along the lines of the Canadian system will likely take center stage, the bill is expected to affect all aspects of aviation, including unmanned traffic management, Next Gen implementation, airport funding, unmanned aircraft cargo delivery, and anti-drone technology.

Join us at 1:30 on June 29, 2017 for our free 90-minute webinar to receive a rundown of what the bill contains, what did not make it in, and the winners and losers in the Congressional sweepstakes. Please note, we have scheduled this webinar based on our best guess as to when the House will complete mark-up of the bill.  If the process is delayed, the webinar will be rescheduled for a later date.

SYMPOSIUM WEBINAR SERIES: FAA REAUTHORIZATION ACT OF 2017 . . . EVERYTHING YOU WANT TO KNOW

UAS INSIDER BRIEFING . . . . FOLLOWUP

We would like to thank everyone who attended our 2017 UAS Insiders briefing, held in Washington D.C. on July 1st. For those of you who could not attend, below you can find links to the PowerPoint presentations for each of the panels that presented at the briefing.

What the H… is going on at the FAA…?

An overview of the FAA regulatory landscape now and moving forward. Also:  The Taylor decision and what it means for FAA regulations.

Insider Views on Congressional Activities

Will include a briefing on the FAA appropriations fight and how you can position your company to take advantage of what is coming.

How to Get Approval For What You Can’t Do Under Part 107

Beyond visual line of sight operations and package delivery:  opportunities presented by the new administration.

Drones as a Service

The nuts and bolts of buying and selling UAS services, and other contractual and commercial issues.

EASA Regulatory Structure for Drones: A Quick Update

            What is going on in Europe and efforts to harmonize European drone rules.

Anti-Drone

How is the government acting to remove the numerous legal and regulatory obstacles to deploying these new systems?

UAS INSIDER BRIEFING . . . . FOLLOWUP

DC Circuit Overturns Model Aircraft Registration, Tells FAA “Statutory Interpretation Does not get Much Simpler”

Those of you who are regular readers of this blog are aware that there has been a federal lawsuit pending before the DC Circuit challenging the validity of the FAA’s registration system for model aircraft. After oral argument in March, we predicted that the regulation appeared to be in serious trouble, and the FAA should start considering its “Plan B.”  Well, if the FAA has a Plan B, now is the time to dust it off, because the D.C. Circuit just issued a 10 page opinion striking down the registration requirement.

In a unanimous decision, the three judge panel held that the registration regulation was barred by the Special Rule for Model Aircraft, which is contained in Section 336 of the FAA Modernization and Reform Act of 2012. Section 336 provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft.”  The Court noted that the FAA’s new registration rule used the exact same definition for “model aircraft” as was contained in Section 336, and as a result, it was inescapable that the rulemaking was improper:

In short, the 2012 FAA Modernization and Reform Act provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft,” yet the FAA’s 2015 Registration Rule is a “rule or regulation regarding a model aircraft.” Statutory interpretation does not get much simpler. The Registration Rule is unlawful as applied to model aircraft.

The Panel rejected the FAA’s argument that the registration rule was permissible because it was related to the preexisting statutory requirement that all aircraft be registered. The Court held that the FAA had gone far beyond just enforcing the aircraft registration statute by creating a completely new system for compliance, a new fee structure, and a new system of penalties.

The FAA also argued that the regulation was proper based on the provision of the FAA Modernization and Reform Act that required the FAA to act to “improve aviation safety.” The Court disagreed, holding that this general directive could not overcome the specific limitations of Section 336.

The panel declined to consider Plaintiff’s appeal of Advisory Circular 91-57A on the grounds that it was untimely. Appeals of final FAA decisions must be brought within 60 days of issuance, and the Plaintiff’s notice of appeals was filed almost a year after the advisory circular was issued.

The FAA’s decision leaves open several questions. What should the FAA do with all of the registration data it collected?  Should the FAA refund the money that was improperly collected?  Is there a way for the FAA to apply the general aircraft registration statute to model aircraft operators by using the existing paper registration system?  The one thing the Court was clear on, however, was that the FAA’s arguments in favor of registration should be addressed to Congress:

Congress is of course always free to repeal or amend its 2012 prohibition on FAA rules regarding model aircraft. Perhaps Congress should do so.  Perhaps not.  In any event, we must follow the statute as written.

With the new FAA reauthorization working its way through Congress this summer, we may not have to wait long for an answer.

DC Circuit Overturns Model Aircraft Registration, Tells FAA “Statutory Interpretation Does not get Much Simpler”

NTSB – Congratulations Vice-Chairman Sumwalt!!

With the election of President Trump, there was a great deal of speculation over how vacancies on the National Transportation Safety Board would be handled.  Would the new Administration want to shake things up at the NTSB as they have at other agencies or would there be continuity between the new nominees and the existing board?  The answer to that question is, at least for now, “steady as she goes.”

Earlier this morning, the Trump Administration announced that Robert L. Sumwalt III would be re-nominated as a Board member for another 5 year term.  In addition, Mr. Sumwalt is also designated as Vice-Chairman of the NTSB for the next two years.  Mr. Sumwalt has been a member of the NTSB since 2006, and previously served as NTSB vice chairman from 2006 to 2008. Prior to his time at the NTSB, Mr. Sumwalt was a pilot for 32 years, including 24 years with U.S. Airways.

The President’s action is clearly a vote of confidence in the way the NTSB has been handling its duties.  Congratulations Mr. Sumwalt, and here’s hoping your confirmation hearing is less contentious than all of the other ones held by the Senate this year.

NTSB – Congratulations Vice-Chairman Sumwalt!!

FAA/UAS – Judge to FAA “You’re just making things up.”

The federal lawsuit seeking to overturn the FAA’s model aircraft registration regulation passed a very important milestone last week.  A three judge panel of the United States Court of Appeals for the District of Columbia Circuit heard oral argument from the Plaintiff, John Taylor and the Federal Aviation Administration.

The main questions raised by Mr. Taylor in his suit is whether a model aircraft is an aircraft subject to FAA regulation and, if it is an aircraft, whether the model aircraft registration regulations are barred by Section 336 of the FAA Modernization and Reform Act of 2012, which states:

the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft . . . .

While the Court’s questions seemed to indicate an openness to Mr. Taylor’s argument regarding Section 336, there seemed to be deep skepticism over his claim that model aircraft are not a civil aircraft subject to regulation.  Under questioning, Mr. Taylor fell back on the argument that the FAA’s broad definition of unmanned aircraft is invalid because it would include paper airplanes and Frisbees.  The panel, however, pointed out that the registration regulation did not apply to Frisbees and paper airplanes, and Mr. Taylor admitted that the Court did not need to reach this argument to decide the appeal.

The FAA began its part of the argument by focusing on the purposes of the registration regulation, which are accountability and education.  The Court almost immediately interrupted and asked the FAA why Congress passed Section 336.  The FAA admitted that the statute was intended to bar the FAA from imposing new regulations on model aircraft, but argued that the statutory requirement that all aircraft be registered under Part 47 were preexisting requirements and not new regulations, and that the model aircraft regulation was simply building on this preexisting legal authority.  The panel was clearly troubled by this argument, with one judge calling the agency’s reading of the statute “bizarre.”  The FAA also argued that Congress made clear that it wants the FAA to enforce safety regarding unmanned aircraft, and that registration was a key part of that effort because it was the only way to identify violators.  The Court responded that these were good policy arguments, but that those were arguments that should be made to Congress.  As one judge noted, “the fact that the thing you are doing has a good effect does not mean that the thing is lawful.”

Finally, the Court questioned how the preexisting statutory requirement that all aircraft be registered could possibly justify a new regulation since Section 336 begins by stating “[n]otwithstanding any other provision of law . . . .” The FAA’s response to this queston was interrupted by one of the judges asking, “[w]here are you getting these words from, you’re just making things up.”  The judge then went on to say:

You know, I like my colleague to my right who says it’s a very perplexing statute but, you know, it is what it is, and judges get themselves in trouble when we start fooling around.  There are some judges that I can point to nationally who will say, well, this is not what Congress said.

This is what Congress said, and you have five, as Judge Wilkerson said, you have a frame, if the model that is within these five [requirements] you are done.  That’s that.  That is what Congress said.

Any appellate litigator will tell you that you can’t draw too many conclusions about who is going to win an appeal based on the questioning at oral argument.  However, it is also clear that the FAA had a bad day in Court, and those who thought that the regulations would be easily upheld should take some time to think about what “Plan B” might be for the unmanned aircraft registration system.

For those of you who want to listen to the full 30 minute argument, it can be found HERE.

FAA/UAS – Judge to FAA “You’re just making things up.”