Barbara E. Lichman

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In a strange twist on the normal relationship between federal regulatory agencies, the National Transportation Safety Board (“NTSB”) has found the Federal Aviation Administration (“FAA”) a primary culprit in the October 31, 2014 disastrous test flight of Virgin Galactic’s SpaceShipTwo, in which one of the two pilots was killed, and debris was spread over a 33 mile area in San Bernardino County, northeast of Los Angeles.  

 
The issue appears to be the grant of a waiver by FAA from the existing rules governing safety of interplanetary vehicles, despite FAA’s own safety consultant’s warning that Virgin Galactic was violating those rules.  The claim is that, while Congress did not delegate to FAA the authority to implement regulations as stringent as those applicable to commercial aircraft, FAA managers specifically ignored the repeated advice of safety engineers that Virgin Galactic had not fully complied with the regulations that do exist.  Specifically, FAA safety personnel claim that FAA managers based their decision to grant the waiver on the remoteness of the Town of Mojave where the aircraft’s launch company, Scaled, is based, and on the surrounding area where the company planned its test flights.  
 
In the end, the NTSB found that, although the co-pilot had erred by prematurely unlocking the rocketship’s movable tail, the FAA and the launch company bear a disproportionate share of the responsibility.  On the one hand, the launch company had failed to ascertain that a single error by an operator could lead to the ship’s destruction.  On the other hand, the FAA, acceding to pressure to approve the permit quickly, had failed to ensure that the company took this lack of redundancy into account.  Exacerbating the issue is the fact that SpaceShipTwo is one of three commercial rockets to crash in the span of eight months.  
 

Continue Reading NTSB Faults FAA in Private Spacecraft Investigation

Apparently impatient with the Federal Aviation Administration’s (“FAA”) slow progress in developing rules governing the commercial operation of unmanned aerial vehicles (“UAV” or “drones”), Senators Cory Booker (D-NJ) and John Hoeven (R-ND) introduced in Congress legislation to expedite implementation of rules governing the commercial operation of drones.  

Supported by a host of interest groups, ranging from the Association for Unmanned Vehicle Systems International to the National Association of Broadcasters and Information Technology and Innovation Foundation, the stated purpose of the “Commercial UAS Modernization Act,” S.1314 (“Act”) is to amend the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95), to create an interim rule providing basic guidelines for commercial use and testing of small UAS during the period within which FAA finalizes rules governing the operation of commercial UAS.  The Bill allows any person to “operate a small unmanned aircraft for commercial purposes without an airworthiness certificate within the United States, subject to the requirements under subsection (b) and the operating restrictions under subsection (c) during the period beginning on the date of the enactment of this Act and ending on the effective date of a final rule based on the Notice of Proposed Rulemaking Operation and Certification of Small Unmanned Aircraft Systems (80 Fed. Reg. 9544, February 23, 2015).” The Bill’s general requirements include: (1) liability insurance; (2) registration/certification under section 3(a) of the Act; and (3) the operator’s passing of an “aeronautical knowledge test,” Act, subsection (b)(3)(A), as prescribed by FAA in its February 2015 notice.  
 
The permission granted under the proposed legislation is not without limits, however.  
 

Continue Reading Congress Seeks to End Run Federal Aviation Administration on Drone Rules

In an unprecedented action aimed at limiting or eliminating noisy helicopters and fixed-wing aircraft from use of the East Hampton Airport, in East Hampton, Long Island, New York (“Airport”), on April 6, 2015, the East Hampton Town Board, operator of the airport, imposed strict noise limits, including a curfew, on the hitherto largely unregulated Airport.  The greatest source of the problem that has generated a flood of local noise complaints appears to be the increasing helicopter traffic that ferries well-to-do city dwellers and LaGuardia and Kennedy passengers who live on Long Island to the beach community.  The noise has apparently increased with the imposition of a new rule by the FAA requiring helicopters to fly off the North Shore of Long Island, and cross Long Island at, and into, East Hampton on the South Shore.  The proposed regulatory protocol is dramatic.  Continue Reading Town of East Hampton Explores Limits of Aircraft Noise Regulation

California legislators are taking advantage of the continuing absence of federal regulation of unmanned aircraft systems (“UAS” or “drones”), and the provisions of the FAA Modernization and Reform Act of 2012, Pub.L. 112-95 (“FMRA”), allowing state and local governments to regulate drone operation in the absence of federal regulation.  Between the start of the new California legislative session, through February 27, 2015, the last day for Bills to be submitted, legislators introduced five Bills.  The most comprehensive of these is AB37, introduced by Assemblymember Campos, and referred to the Assembly Committee of Public Safety, Civil Procedure and Privacy.Continue Reading California State Lawmakers Move to Regulate Drones

In a landmark decision for film and production companies, the Midwest of the United States, and the unmanned aircraft systems industry, Buchalter Nemer’s Aviation and Aerospace Practice Group made history last week when it secured a Grant of Exemption issued by the Federal Aviation Administration authorizing film and production company Picture Factory, Inc. to operate…

On February 15, 2015, the Federal Aviation Administration published its highly anticipated Notice of Proposed Rulemaking (NPRM) on the Operation and Certification of Small Unmanned Aircraft Systems (applicable to UAS weighing 55 lbs. and less).  The proposed rules would add a new Part 107 to Title 14 Code of Federal Regulations to allow for routine civil operation of small UAS in the National Airspace System (NAS).  Although a lengthy comment and revision period is expected to delay finalization of the regulations for another 18-24 months, Section 333 of the FAA Modernization and Reform Act of 2012 will continue to provide a procedure for expedited authorization of commercial small UAS operations in the interim.  The final Part 107 will serve as the foundation for a multi-billion dollar UAS industry in the United States. Continue Reading FAA Releases Proposed Rules for Commercial Drones; White House Launches Drone Privacy Policy

Usually regarded as a local ski area for ski buffs in Northern and Southern California, to which it is readily accessible by car, Mammoth Mountain Ski Area (“MMSA”) is preparing to come into the 21st Century with a new lodge, updated lifts, and, perhaps most important to proponents of the development, an expanded airport.  The expected transformation will be accomplished by the December 12, 2014 passage of the National Defense Authorization Act to which was attached an amendment specifically targeted at the MMSA.  The amendment provides for a land trade of over 1,500 acres of public and private property in proximate counties, for approximately 21 acres of United States Forest Service (“USFS”) land surrounding Mammoth Mountain Inn, which is currently leasing that property as the center of ski operations of the MMSA.  In addition, the Bill allows for a “cash equalization option” to facilitate the exchange, by which MMSA can make up any deficiency in the value of the property conveyed to the USFS with a cash equivalent.  
 
Most important in MMSA’s view is the expansion of the airport.  

Continue Reading Land Trade and Airport Expansion Expected to Put Mammoth Mountain on “Must Ski” Map

An article of December 23, 2014 in a local East Hampton, New York newspaper, now circulated to a wider audience throughout the nation, gives the impression that, upon expiration of its contractual relationship on January 1, 2015, “East Hampton Town will be free of Federal Aviation Administration oversight and able to set access restrictions at the East Hampton Airport, essentially opening the door for relief from often loud, and sometimes rattling, aircraft noise.”  The article apparently misapprehends, and consequently, vastly overstates the impact of the expiration of the town’s contractual commitments to FAA, in return for funding of airport improvements.  The fact is that, with or without the constraints of such contractual commitments or “grant assurances,” the application of noise and access restrictions will depend entirely upon FAA’s determination concerning the applicability of a parallel set of constraints set forth in the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq. (“ANCA”), which, in turn, will depend on the noise levels of the specific types of aircraft the airport wishes to control or eliminate.  

The newspaper article errs in at least two ways.
 

Continue Reading East Hampton Airport Still Subject to FAA Oversight of Noise Restrictions Despite Absence of FAA Funding Constraints