Federal law establishes the applicable standards of care in the field of air safety,and the Federal Aviation Administration (FAA) has sole discretion to regulate air safety. The administrator of the FAA is authorized by Congress to exercise sole discretion in regulating air safety by vesting the administrator with broad regulatory authority. To effectuate this authority, the administrator has implemented a comprehensive system of rules and regulations to promote flight safety. Based on the comprehensive regulatory system, federal law so thoroughly occupies the legislative field of aviation safety that federal law impliedly preempts state regulation in that area[i].
The administrator may promote safe flight of civil aircraft in air commerce by prescribing[ii]:
- minimum standards required in the interest of safety for appliances and for the design, material, construction, quality of work, and performance of aircraft, aircraft engines, and propellers;
- regulations and minimum standards for inspecting, servicing, and overhauling of aircraft, aircraft engines, propellers, and appliances;
- the time, manner, and the qualified private person who shall examine and report on the inspecting, servicing, and overhauling of aircraft, aircraft engines, propellers, and appliances;
- regulations required in the interest of safety for the reserve supply of aircraft, aircraft engines, propellers, appliances, and aircraft fuel and oil, including the reserve supply of fuel and oil carried in flight;
- regulations in the interest of safety for the maximum hours or periods of service of airmen and other employees of air carriers; and
- regulations and minimum standards for other practices, methods, and procedure that the administrator finds necessary for safety in air commerce and national security.
In addition, the administrator may prescribe minimum safety standards for[iii]:
- an air carrier to whom an air carrier operating certificate is issued; and
- operating an airport serving any passenger operation of air carrier aircraft designed for at least 31 passenger seats.
Usually, an air carrier operating certificate is issued only after the administrator finds, after investigation that the person is properly and adequately equipped and is capable to operate the air carrier in accordance with the safety standards prescribed under the statute[iv]. An air carrier operating certificate shall:
- contain terms necessary to ensure safety in air transportation; and
- specify the places to and from which, and the airways of the U.S. over which, a person may operate as an air carrier.
Apart from the air carrier operating certificate, the administrator may issue airman certificates, type certificates, production certificates, airworthiness certificates, airport operating certificates, air agency certificates, and air navigation facility certificates[v]. Accordingly, a person may not[vi]:
- operate a civil aircraft in air commerce without an airworthiness certificate in effect or in violation of a term of the certificate;
- serve in any capacity as an airman with respect to a civil aircraft, aircraft engine, propeller, or appliance used or intended for use in air commerce without an airman certificate authorizing the airman to serve in the capacity for which the certificate was issued; or
- operate as an air carrier without an air carrier operating certificate or in violation of a term of the certificate; and
- operate an airport without an airport operating certificate or in violation of a term of the certificate.
The administrator can issue orders suspending, revoking, amending, or modifying aviation certificates if s/he determines that safety in air commerce or air transportation and the public interest requires such action. The administrator has discretionary authority to revoke a certificate immediately if s/he determines that an emergency exists and safety in air commerce or air transportation requires the immediate effectiveness of his/her order[vii].
The administrator shall also prescribe[viii]:
- standards for the composition, chemical or physical properties of an aircraft fuel or fuel additive; and
- regulations providing for carrying out and enforcing those standards; and
- standards to measure and regulations to control aircraft noise and sonic boom[ix].
Pursuant to 49 USCS § 44719, the Secretary of Transportation shall prescribe regulations or standards for installing navigational aids, including airport control towers. For each type of facility, the regulations shall consider at a minimum traffic density, terrain and other obstacles to navigation, weather characteristics, passengers served, and potential aircraft operating efficiencies.
Likewise, as a safety measure, each air carrier engaged in covered operations shall continue to use pilot training and qualification programs approved by the FAA, with specific emphasis on initial and recurrent training and qualification of pilots who have attained 60 years of age, to ensure continued acceptable levels of pilot skill and judgment.
In Prof’l Pilots Fed’n v. Faa, 118 F.3d 758 (D.C. Cir. 1997), the court observed that “as long as the Federal Aviation Administration (FAA) cannot identify good candidates for an experiment concerning the safety of allowing commercial pilots to fly past the age of 60, the court can hardly conclude that its refusal to run the experiment is arbitrary and capricious. On the contrary, it would be unreasonable for the court to require that the FAA periodically suspend its safety regulations in order to determine anew, upon the basis of (potentially disastrous) experience, whether they are still needed particularly where such experimentation with the safety of passengers is not required by the Federal Aviation Act. Indeed, the congress arguably forbade it by requiring the FAA to consider the duty of an air carrier to provide service with the highest possible degree of safety in the public interest.”
[i] Elassaad v. Independence Air, Inc., 613 F.3d 121 (3d Cir. 2010).
[ii] 49 USCS § 44701(a).
[iii] 49 USCS § 44701(b).
[iv] 49 USCS § 44705.
[v] 49 USCS § 44702.
[vi] 49 USCS § 44711(a).
[vii] Go Leasing v. National Transp. Safety Bd., 800 F.2d 1514 (9th Cir. 1986).
[viii] 49 USCS § 44714.
[ix] 49 USCS § 44715.