Combining Mixed-Use Flight Operations Safely at Airports (2016)

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18 At federally obligated airports, an action by an airport operator to deny an on-airport aeronautical activ- ity is subject to FAA review and concurrence. It is well established through administrative and court records that the FAA is the final arbiter of questions related to what constitutes a compromise of safety at an airport, and whether or not the efficiency of airspace is affected. The FAA’s final determination of an aeronautical compatibility concern is related to its effect on the safety of operation and the efficient use of airspace, as described in Order 5190.6B, Airport Compliance Manual (FAA 2009b). The manual also describes an airport owner’s obligations to make reasonable accommodations of aeronautical activities. Airports that are federally obligated, especially GA airports, can have difficulty balancing the obligations of the assurances to accommodate any aeronautical activity with their ability to manage the perceived risks and liability concerns expressed within the community. Legal Research Digest 23 summarizes the situation eloquently (Kirsch 2015, p. 22): FAA safety determinations can be a source of frustration. In many of the cases cited herein, FAA found that an access restriction was unreasonable or unjustly discriminatory because the aeronautical activity could be conducted safely or is not ‘inherently unsafe.’ GA airport operators and local governments, in contrast, typically are not focused on whether it is possible to conduct an aeronautical activity safely. Instead, GA airport opera- tors are concerned about whether the risk of an incident or accident causing injury, death, or property damage is sufficiently high to warrant limiting the activity. In many respects, this represents one of the most significant sources of conflict between FAA (on the federal level) and GA airport operators (on the local level), because FAA and GA airport operators view the problem so differently. Adding to the challenge are the views of aeronautical operators who argue that their particular activity is allowed to operate on an airport and that they generally find the risks of their respective sport to be relatively low. A finding from the current study is that individual aeronautical groups can be pas- sionate about their sport or recreational activity. Their passion translates into efforts to confirm their right to pursue their activity on an airport and in the airspace. A newspaper report from the Herald-News of Morris, Illinois, described an aerobatic box dispute: “‘It’s our privilege and right to use the airspace in a legal manner,’ he said. ‘If they were denying everybody I would understand, but they’re just denying aerobatic pilots and we must fight that’” (Chapman 2011). The passion also can translate into a chal- lenge for an airport operator, as the operator’s efforts to accommodate other aeronautical activities can be difficult or easy, depending upon whether communication and cooperation between the parties are productive. Missing in the debate are adequate data that would substantiate either party’s assertions. A 1990 journal article demonstrates the polarizing views of risk-taking and risk-aversion: “The con- tradictions in American society between the public agenda to reduce the risk of injury and death and the private agenda to increase such risks deserves the attention of sociologists” (Lyng 1990, p. 852). Lyng studied skydivers and their risk-taking culture, but included other perceived high-risk sports as hang gliding, rock climbing, scuba diving, car and motorcycle racing, and occupations such as firefighting and police work. Discussion of the different perspectives and motivations of those involved in the disagree- ment of aeronautical risk can result in better understanding and possible resolution of operational risk. RISK ANALYSIS RESOURCES Efforts have been made within the aviation industry to enhance safety through the implementation of both pilot and airport risk management analyses. Tools such as the FAA’s Flight Risk Assessment Tool (2007c) and Risk Management Handbook (2009a), and the United States Helicopter Safety chapter three SAFETY AND RISK MANAGEMENT

19 Team’s Flight/Ground Risk Assessment Tool (2014) do not specifically include the risks associated with mixed aeronautical use. More information on risk analysis in aviation can be found in ACRP Synthesis 37 (Landry 2012), ACRP Report 131 (Neubauer et al. 2015b), and ACRP Report 51 (Hall et al. 2011). ACRP Report 51 provides a risk-based methodology useful in assessing the risks associated with nonstandard separa- tions at existing constrained airports where the standards cannot be practicably met. The report pro- vides insight into applying statistical risk analysis for aircraft operations conducted close to a runway or taxiway, similar to what may be used in conducting a safety assessment for glider, ultralight, or banner towing activity close to a runway. An example of a safety risk assessment for skydiving operations is presented in chapter fifteen of this report, on the Venice Municipal Airport in Florida. For airport operators, information on risk management is contained in publications related to implementation of an SMS. While not a regulatory requirement as yet, a Notice of Proposed Rule- making (NPRM) exists proposing the implementation of SMS at airports (75 FR 62008 2010). Order 8900.1, Flight Standards Information System, provides guidance for FAA personnel in the surveillance and inspection of various aeronautical activities and operations, including sport parachuting activity (FAA 2015b). INSURANCE Prohibiting an aeronautical activity because of perceived greater liability is not a valid argument for seeking to exclude an aeronautical user from a federally obligated airport, under Docket No. 16-11-06 (FAA 2013c). In that docket on skydiving activity, the FAA views the argument of one aeronautical activity having a greater risk or liability than another aeronautical activity as an argument that could be made for promoting any one aeronautical activity over another. A discussion of the reasonableness of insurance requirements for a skydiving (or any aeronautical) activity can be found in a May 4, 2011, FAD, Docket 16-09-09 (FAA 2011b). In that complaint reso- lution, a city sought in a lease agreement to establish insurance requirements that were unattainable and nonexistent and therefore in violation of Sponsor Assurance 22. However, the determination also addressed a tenant lease provision requiring the skydiving operator to pay the cost of increased insurance coverage to the city. The FAA wrote that it was not a violation of Sponsor Assurance 22 because it is not unjustly discriminatory to treat dissimilar aeronautical activities dissimilarly. The city’s previous insurance policy did not include skydiving activity. Obtaining additional coverage resulted in an increased cost to the airport because the skydiving company could not obtain adequate insurance required of other aeronautical operations on the airport. It was not similarly situated as to the insurance requirements of other aeronautical operators. The added cost was passed on to the skydiving operator. In a Part 16 skydiving complaint filed in Hawaii, the FAA in Docket No. 16-07-06 affirmed that the state of Hawaii (operator of the airport) could exercise its proprietary right to require general liability insurance on aeronautical tenants of the airport, as well as the proprietary right to be named as an additionally insured on such insurance policies (FAA 2008c). However, the FAA director cautioned that minimum insurance requirements must not be unjustly discriminatory and the amounts of coverage should be reasonably consistent with other similarly situated airport tenants. The FAA director also affirmed that the State of Hawaii could exercise its proprietary right to require a skydiving operator to include the state in any or all liability waivers signed by skydiving participants. Skydiving operators conducting operations under the auspices of the United States Parachuting Association (USPA) carry third-party liability insurance through membership with USPA. It is com- mon practice to have the airport named as the insured on the skydiving operator’s insurance policy. The same holds true for aerobatic, model aircraft operators, and soaring associations. The Academy of Model Aeronautics (AMA), International Aerobatic Club (IAC), North American Powered Parachute Federation, and the Soaring Society of America (SSA) all provide group insurance for their members

20 and third-party additional insured provisions. Insurance for balloon, agriculture, banner towing, gyrocopters, and other aeronautical operators is available on the commercial insurance market. Recently, the potential legal issues surrounding the operation of unmanned aircraft systems have prompted several companies to offer insurance services (Bauer and Hawkins 2016). Two airports did not have a requirement to be named insured on a tenant policy unless a special event was taking place at which more people than usual attend, increasing risk exposure. Discussions with airport operators identified a variety of insurance requirements and limits, with no generally conclusive set amount for a particular activity. ACRP Synthesis 30 reports on this and provides a synopsis of insurance practices at various airports (Rakich et al. 2011). That synthesis identifies the variables that affect insurance purchasing for airport operators and the range of risk management practices that exist among U.S. airports. This current study points toward aerial applicators as having the largest personal liability exposure, given the chemicals they manage and the possible public exposure resulting from errors made in application. The airport’s exposure to the same liability is not as great, although the environmental consequences of an on-airport spill or contamination can be significant. An airport’s normal comprehen- sive and environmental liability limits appear to apply in most cases, as noted in several of the airport interviews. Owing to the few samples obtained in the interview for each aeronautical activity, the extent to which special aeronautical activities affect insurance rates was inconclusive. It was found in the literature that insurance policies did generally preclude special events, such as air shows, fly-ins, demonstration flights, and the like. Additional coverage was needed for most special events. Airport general liability insurance carriers may also specifically preclude the act of skydiving or other aero- nautical activity in a policy. ACRP LRD 11 provides a sample analysis of airport insurance requirements (Reimer and Meyers 2011). The authors collected insurance requirements from surveyed airports across the nation for various aeronautical activities. The insurance requirements published in the digest demonstrate the different needs of airports as a result of local ownership, municipal codes, or state statutes.