Is it Legal?

By Gregory S. Winton, Esq.

Can we lease our aircraft with pilot to another company so that they can use their sensor and/or operator to perform an aerial survey mission? Below is a review of the FAA legal interpretations concerning aerial work operations.

As an aviation attorney, I am often asked by clients to provide a legal opinion or interpretation of the Federal Aviation Regulations (FARs) concerning whether a particular aircraft operation is in compliance. In almost every case, my initial determination is … “it depends.” Since each aircraft operation involves a unique set of circumstances, a full analysis of the operational factors, as well as a review of the regulations, relevant case law, and FAA chief counsel interpretations is necessary. Accordingly, the views expressed in this article may not be applicable to every particular situation and, therefore, should be used as a general guideline only. Each individual operator should consult with a qualified aviation attorney if a legal question arises concerning regulatory compliance.

During this past summer conference in Snowmass, Colorado (July 2012), I was asked by members of the Management Association for Private Photogrammetric Surveyors (MAPPS) to provide a presentation concerning the most recent FAA legal interpretation of FAR § 119.1(e), regarding aerial work operations. This article discusses the FAA’s interpretation of the FARs, as well as the practical effects of failing to comply with the regulations.

Commercial Aircraft Operations

Before explaining the FAA’s interpretation of FAR Part 119, it is necessary to review the applicable regulations concerning commercial aircraft operations. According to the FAA, when a flight involves the carriage of persons or property for compensation or hire, the operator is required, by 14 C.F.R. Part 119, to hold an air carrier or commercial operator certificate and operate such flights in accordance with the appropriate rules found in Parts 121 or 135.

The Aerial Survey Exception

However, Section 119.1(e) provides an exception for several categories of operations such as “aerial work operations,” including “aerial photography or survey” [the “aerial survey exception,” see 14 C.F.R. § 119.1(e)(4) (iii)]. Therefore, persons conducting operations described in § 119.1(e) do not need to hold a Part 119 operating certificate and may conduct these operations under Part 91, General Operating and Flight Rules. However, the FAA has specifically stated that when aerial work operations have a “dual purpose,” meaning, for example, that an operation is conducted for both aerial survey and transporting passengers for compensation or hire, then the Section 119.1(e) aerial survey exception would not apply to that operation.

Further legal research concerning application of the aerial survey exception revealed a letter dated September 7, 2011, issued by the FAA Office of the Chief Counsel to attorney Ray Bonilla, Esq. (the “Bonilla” interpretation). The Bonilla interpretation describes a scenario in which “ABC Company” is asked by a client to transport survey equipment with the purpose of conducting infrared videography along the length of a pipeline extending several hundred miles across multiple states. Under the proposed scenario, a person not employed by ABC Company would be carried aboard the aircraft to operate the survey equipment. The distance covered by the survey would require that the aircraft land periodically so that it may be refueled. The distance also would require that the crew make overnight stops for meals and rest.

The FAA’s Legal Interpretation

In response to ABC Company’s request for legal interpretation regarding aerial work operations, the FAA reviewed its legal interpretation issued nine months earlier on January 12, 2011. Previously, the FAA had reached the conclusion that an aerial photography operation, with a passenger for hire on board the aircraft, would not be operating in accordance with the aerial work exception of § 119.1(e) if it stopped to refuel at a location other than from where it took off. Nevertheless, the FAA abandoned its prior position acknowledging that the agency has now determined interim stops are allowed for the limited purpose of meeting aircraft or human needs. As a result, the FAA withdrew its January 2011 interpretation and issued the Bonilla interpretation instead.

The Bonilla interpretation describes a scenario in which “ABC Company” is asked by a client to transport survey equipment to conduct infrared videography along a pipeline across multiple states; a person not employed by ABC Company would be carried aboard to operate the survey equipment, the aircraft would have to land to refuel, and the crew would have to make overnight stops.

The Bonilla interpretation answers several questions concerning the above scenario. For purposes of this article, only the following two questions are applicable and will be discussed:

I. Question: May a helicopter operator conducting operations under § 119.1(e)(2) or (e)(4) make a landing to address aircraft of human needs?