OCT 0 7 2015 VIA FEDERAL EXPRESS Robert G. Eastman

Transcription

U.S. Department
of Transportation
Office of Airport Compliance and
Management Analysis
Federal Aviation
Administration
800 Independence Ave., S.W.
Washington, D.C. 20591
OCT 0 7 2015
VIA FEDERAL EXPRESS
Robert G. Eastman
Eastman & Associates, LLC
P.O. Box 180
Charleston, SC 29402
David Y. Bannard, Esq.
Foley and Lardner LLP
111 Huntington Avenue
Boston, MA 02199
Dear Messrs. Eastman and Bannard:
Re: Skydive Myrtle Beach, Inc. v. Horry County Department of Airports, South Carolina, FAA
Docket No. 16-14-05
Enclosed is a copy of the determination of the Federal Aviation Administration (FAA) with respect
to the above-referenced matter finding the Horry County Department of Airports, South Carolina,
not in violation of Grant Assurance 22 Economic Nondiscrimination. However, unless immediate
steps are taken to address skydiving safety at the Grand Strand Airport (CRE), the County will be
considered to be in violation of Grant Assurance 19 Operation and Maintenance. The reasons for
the finding of compliance are set forth in the enclosed Director's Determination.
The Director's Determination does not constitute a Final Agency Decision and order subject to
judicial review. [14 CFR § 16.247(b)(2)] A party adversely affected by the Director's
Determination once issued may appeal the initial determination to the FAA Associate Administrator
for Airports pursuant to 14 CFR § 16.33(c) within 30 days after the service of the Director's
Determination.
Sincerely,
Randall S. Fiertz
Director, Office of Airport Compliance
and Management Analysis
Enclosure
CERTIFICATE OF SERVICE
7
, 2015, I caused to be placed in the United States
I HEREBY CERTIFY that on October
mail (first class mail, postage paid) a true copy of the FAA's Director's Determination for FAA
Docket No. 16-14-05 addressed to addressed to:
For Complainant
Robert G. Eastman
Eastman & Associates, LLC
P.O. Box 180
Charleston, SC 29402
[email protected]
For Respondent
David Y. Bannard, Esq.
Jeffrey R. Blease, Esq.
Jaclyn V. Pilch, Esq.
Foley and Lardner LLP
111 Huntington Avenue
Boston, MA 02199
dbannardAfoley.com
[email protected]
[email protected]
Copy to:
FAA Part 16 Airport Proceedings Docket
FAA Airport Compliance and Management Analysis, ACO-100
Claudia Roberts
Office of Airport Compliance and
Management Analysis
UNITED STATES DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
WASHINGTON, DC
Skydive Myrtle Beach, Inc.,
Complainant,
v.
Horry County Department of Airports, South Carolina
Respondent.
FAA Docket No. 16-14-05
DIRECTOR'S DETERMINATION
I. INTRODUCTION
Skydive Myrtle Beach, Inc. (Complainant/SDMB) brings this complaint pursuant to 14 CFR Part 161 against
Horry County Department of Airports (County/Respondent/HCDA), the owner, and operator of the Grand
Strand Airport (CRE/Airport), South Carolina.2 The complaint makes several allegations, all of which are
addressed by the Director under Grant Assurance 22, Economic Nondiscrimination. In addition, because the
allegations involve the safe operation of the Airport and related actions by the airport sponsor, Grant
Assurance 19, Operation and Maintenance is also considered.3
The Complainant, a skydiving operator, states that the County's actions, including attempts to restrict the
landing area (Drop Zone or DZ) and reporting violations as 'safety concerns,' are unreasonably restrictive
and discriminatory as applied to an FAA-recognized aeronautical activity — skydiving.'
The Complainant characterizes these actions by the County as "spurious enforcement mechanisms that
greatly exceed FAA regulations and guidance," and adds that the County "has utilized all the powers of
government to remove SDMB from CRE in a discriminatory and illegal manner that is contrary to federal
and state law."' SDMB also alleges that several actions by the County are unreasonable and unjustly
discriminatory, and contends that the County's actions constitute "harassment."'
In response, the County denies that its actions are contrary to its federal obligations and argues, instead, that
they are consistent with said obligations.' The County affirms that "SDMB currently uses CRE as a base of
operations for its skydiving business, and...uses a designated [DZ] located on airport property," but after its
use permit "for use of Hangar 7...expired on January 31, 2014, SDMB has...refused to enter into a valid
'Title 14 of the Code of Federal Regulations (14 CFR) are the rules, regulations, and guidelines established by the FAA to govern the operation of aircraft, airways,
airmen, and the safe operation of civil aircraft. 14 CFR Part 16 governs the proceedings involving Federally-assisted airports, such as this case.
2 In the Complaint, SDMB names Robinson Aviation, Inc. (RVA), the provider of ATC services at CRE, as a respondent. However, since RVA is not the airport
sponsor, the Director rejects any claims made against this entity within the scope of this determination. As noted in the FAA's Notice of Docketing, the CRE
Tower (ATCT) was not properly named as a respondent. The FAA docketed the Complaint naming the County as the only respondent. RVA's Web site states that
RVA "is an aviation services company that specializes in air traffic control operations." See http://www.rvainc.net/.
3 See Applicable Law and Policy section.
4 FAA Exhibit 1, Item 1, page 10.
7 FAA Exhibit 1, Item 3, pages 15-25.
Page 1
Skydive Myrtle Beach, Inc. v. Horry County Department of Airports, South Carolina (FAA Docket No. 16-14-05)
Space Use Permit for the use of the hangar."t The County adds that SDMB has also refused to comply with
the standards and procedures to conduct safe skydiving operations. Specifically, the County states that
SDMB "has been unable to ensure that its skydivers consistently land within the designated [DZ]," and has
failed to "contact the [the ATCT, Air Traffic Control Tower] before crossing active runways or taxiways..."
Finally, the County rejects SDMB's claims that the County's actions to ensure safety are "harassment or
discrimination."9
With respect to the allegations presented in this Complaint, under the specific circumstances as discussed
below and based on the evidence of record in this proceeding, the Director fmds that the County's actions are
not in violation of Grant Assurance 22, Economic Nondiscrimination. The Director further finds that the
actions by the County concerning the use of the airport's DZ and related procedures, such as reporting safety
incidents and deviations, are consistent with its safety obligations contained in Grant Assurance 22(h).
However, as discussed and substantiated in the record, the Director has determined that skydiving operations
at CRE are taking place despite unresolved safety deficiencies. The airport sponsor, FAA Flight Standards,
FAA Airports Southern Region, and the CRE ATCT have all voiced and documented serious safety
deficiencies concerning skydiving operations at CRE by SDMB. These operations are not taking place
according to the established safety procedures and requirements in place at the Airport. Therefore, the
Director fmds that, the County must take additional corrective actions to correct those safety deficiencies and
to ensure compliance with Grant Assurance 19.
Because safety has been compromised by SDMB operations at the Airport, and existing safety deficiencies
have not been corrected, the County must take immediate action such as closing the existing parachute DZ and
rescinding related approvals until acceptable risk mitigation measures and revised procedures are considered
and implemented. This temporary closure of the DZ is necessary because its physical characteristics (e.g.,
location, size) as well as related procedures (e.g., Letter of Agreement or LOA) appear to contribute to the
safety deficiencies that require mitigation. This action is necessary to ensure the safe operation of, and to
protect the public and all aeronautical users at CRE. As soon as practicable, the County must take action to
further enhance the safety of skydiving operations at CRE.
The FAA's decision and supporting documentation, submitted by the parties and reviewed by the FAA,
comprises the administrative record and is reflected in the attached FAA Exhibit 1.
Figure 1 - Left, an aerial view of the Grand Strand/North Myrtle Beach Airport (CRE) and the location of SDMB on the airport. Source: South Carolina
Aeronautics Commission. Right, a depiction of the DZ at CRE (in yellow outline). Source; CRE ATCT.
FAA Exhibit 1, Item 5, pages 1-2.
Page 2
Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05)
GRAND STRAND (CRE)
AIRPORT DIAGRAM
NORTH MYRTLE BEACH, SOUTH CAROUNA
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NORTH MYRTLE BEACH, SOUTH CAROLINA
AIRPORT DIAGRAM
GRAND STRAND (CRE)
15064
Page 3
II. PARTIES
A. Airport
Grand Strand Airport (CRE)I° is a county-owned, public-use general aviation airport located in North Myrtle
Beach, in Horry County, South Carolina. " It is located between Highway 17B and the Intracoastal
Waterway (ICW),12 close to the Atlantic Ocean. Horry County Department of Airports (HCDA/County),
South Carolina, operates the Airport.13 The County is also the owner and operator of three other airports
located within its jurisdiction. They are Myrtle Beach International Airport (MYR), Conway Horry County
Airport (HYW), and Twin City Airport (5J9).14
CRE covers an area of 427 acres and has one runway designated 5/23 with an asphalt surface measuring
5,997 by 100 feet. For the 12-month period ending March 11, 2015, the airport reported 46,670 aircraft
operations, predominately local (13,117) and itinerant (31,788) general aviation operations.15 CRE has a
designated parachuting landing zone (aka Drop Zone, or DZ) on airport property, which is adjacent to the
airport's runway and taxiway system (See Figure 1). It also has an operational contract ATCT.16
The development of the Airport was financed, in part, with FAA Airport and Improvement Program (AIP)
funding, authorized by the Airport and Airway Improvement Act of 1982, as amended, 49 U.S.C. §47101, et
seq.° Under the provisions of this Act, the County is obligated to comply with the FAA sponsor grant
assurances and related Federal law, 49 U.S.C. §47107. Since 1982, the County has accepted 19 AIP grants
for CRE totaling over $10.5 million." ATP funds have been used for a myriad of airport projects including
runway and taxiway rehabilitation, lighting improvements, perimeter fencing, apron expansion, obstruction
removal. Three AIP grants (2012-2014), totaling $2.6 million, were used for a ramp rehabilitation project at
the Airport.19
B. Complainant
Complainant, Skydive Myrtle Beach (SDMB), located at CRE, is a commercial skydiving operator that
engages in the air transportation of individuals for the purpose of skydiving, instruction in skydiving, and
rental and sales of skydiving equipment.2° SDMB currently uses CRE (and its DZ) for its skydiving
operations.21
III. PROCEDURAL HISTORY
On February 24, 2014, SDMB filed a 14 CFR Part 16 Complaint with FAA.22 On March 4, 2014, the
County moved to dismiss the Part 16 Complaint without prejudice and on March 7, raised SDMB's failure
to attach supporting documents. On March 18, 2014, the FAA dismissed SDMB's Part 16 as incomplete.23
On July 1, 2014, SDMB re-filed the Complaint and stated that there was "no other option than for SDMB to
refile its complaint for resolution by FAA" and that "without FAA intervention for the reasons enumerated
"Sometimes also referred to as the "North Myrtle Beach Airport."
" FAA Exhibit 1, Item 13B
" FAA Exhibit 1, Item 13C.
13 In this decision, the Director refers to HCDA as the "County."
" FAA Exhibit 1, Item 6, page 3.
15 FAA Exhibit 1, Item 13B.
" FAA Exhibit 1, Item 13B.
"The Airport improvement Program (AIP) provides grants to public agencies — and, in some cases, to private owners and entities — for the planning and
development of public-use airports that are included in the National Plan of Integrated Airport Systems (NPIAS). CRE is in the NPIAS.
" See FAA Exhibit 1, Item 13A, page 3.
"FAA Exhibit 1, Item 13A.
20 Parachuting and skydiving are similar activities. For the purpose of this investigation, the terms are used interchangeably. In the United States today, there are
over 300 active skydiving centers and clubs. Throughout the US, these "drop zones" operate over 500 skydiving aircraft, referred to as jump planes.
22 FAA Exhibit 1, Item 1A.
23 FAA Exhibit 1, Item 1, Item 1B.
Page 4
...there is no reasonable prospect for practical, equitable, and timely resolution."' On July 28, 2014, the
FAA issued a Notice of Docketing.25 This was followed on August 22, 2014 by the County filing its
Respondent's Motion to Dismiss,' and SDMB filing a Complainant's Statement of Material Facts on
September 8, 2014. 27
On October 22, 2014, the County filed its Respondent's Answer and Affirmative Defenses.' On November
3, 2014, SDMB filed its Complainant's Reply, and on November 10, 2014, SDMB filed a Complainants'
Motion to Supplement the Pleadings.29 This was followed on November 13, 2014, by the County filing its
Rebuttal.' On December 30, 2014, SDMB filed a Complainant's Motion to Supplement the Pleadings.
This was followed on January 9, 2015, by the County filing a Letter in Opposition to Motion to Supplement
the Pleadings.' Finally, on January 14, 2015, SDMB filed a Complainant's Letter in Support of Motion to
Supplement the Pleadings.32
On June 6, 2015, the Director issued a Notice of Extension of Time followed by another extension on August
5, 2015.33
IV. CHRONOLOGICAL BACKGROUND
On January 1, 2012, the ATCT and the County entered into a Letter of Agreement (LOA) Concerning the
Control Jurisdiction of Airport Movement Areas at CRE. The LOA defined the responsibility for the control
of aircraft, vehicular, and pedestrian traffic within the airport movement areas at CRE. The LOA' s scope
was limited to "the Movement Area...involving aircraft, vehicle, pedestrian, or object on the ground that
would create a collision hazard and/or loss of separation with an aircraft taking off, landing, or taxiing."34
In April 2012, SDMB negotiated a lease for Hangar 7 at CRE in order to conduct parachute operations for a
period of eight years.35 On May 11, 2012, another LOA was signed by SDMB, the County, and Air Traffic
(including CRE ATCT) for conducting parachute operations at the airport.36 The LOA defined the location
of the Landing Zone (or DrOp Zone), and provided that "parachutist[s] are authorized to land in the defined
[DZ] only and are not authorized to land on any runway, taxiway, or ramp area."37
On May 19, 2012, Grand Strand Aviation, d/b/a Ramp 66, LLC, as the airport operator (operating the airport
on behalf of the County) entered into an agreement with SDMB to conduct skydiving operations at the
Airport. The agreement, with a 2020 expiration date, contained twenty (20) terms/conditions, covering a
myriad of issues, including rates and charges, liability requirements, and compliance with applicable local,
state, and the FARs. One of the terms and conditions in the agreement (No. 20) was that lessor [Grand
Strand Aviation] "shall not directly or indirectly compete with SDMB, and shall not operate any competing
parachute jumping or similar operation anywhere within the County...for...8 years."'
On August 1, 2013, Ramp 66, sold its leasehold interest in operating the airport back to the County and the
County resumed control of the Airport. From that date on, "all tenants were asked to sign a temporary Space
25 FAA Exhibit 1, Item 2.
3° FAA Exhibit 1, Item 8.
" FAA Exhibit 1, Item 10.
33 FAA Exhibit 1, Item 12A and 12B.
34 FAA Exhibit 1, Item 15 and FAA Exhibit 1, Item 17B.
36 IFAA Exhibit 1, Item 1A.
37 FAA Exhibit 1, Item 3, page 8, FAA Exhibit 1, Item 17A.
38 FAA Exhibit 1, Item 5, pages HCDA-00001 and HCDA-000002. The Director notes that term and condition No. 20 is analogous to a granting of an exclusive right,
which is prohibited under Grant Assurance 23 Exclusive Rights. However, because the agreement is now extinguished by the County's takeover of the airport, the
Director will not revisit this issue.
Page 5
Use Permit with a six-month term, with the intent that long-term leases would thereafter be
negotiated...these Space Use Permits were offered on temporary bases because South Carolina law requires
counties to utilize a formal 'three-reading' process prior to conveying property rights through lease
agreements." SDMB was among several commercial aviation tenants who executed these temporary Space
Use Permits. The others were Executive Helicopters, Inc., and Barnstormers Aerial Advertising, LLC.39
The Space Use Permit agreed to by SDMB stated that the "company shall fully comply with all safety and
security policies/directives as established by the Airport."4° As a result, on August 1, 2013, the County and
SDMB entered into an Operating Permit (expired in January 2014) permitting SDMB to conduct skydiving
operations and requiring SDMB to "observe and comply with...all [County's] directives..., which now exist
or which may be hereinafter be [sic] enacted or adopted."41 The Operating Permit also provides for
termination if the operator violates "any [of the County's] rule, regulation, or requirement related to aircraft
operation or safety...1142
In August 2013, the County informed SDMB that it would have to double its liability policy coverage to
$2,000,000 and pay $1,200 per month for Hangar 7.43 On September 13, 2013, the County and SDMB
entered into a temporary Space Use Permit allowing SDMB to occupy Hangar 7 through January 31, 2014.44
On September 26, 2013, the County announced that "CRE is preparing for a ramp rehabilitation project" and
that "the apron rehab project is important in maintaining safe operations at Grand Stand." The County also
stated that the "project is scheduled to begin during the first week of October 2013, and be completed by the
end of February 2014."45 As part of this effort, many tenants and airport operations had to be temporarily
relocated over the course of ramp repairs,46 funded in part with FAA grant funding to rehabilitate the ramp.'
On October 15, 2013, the ATCT notified SDMB of a situation whereby after landing, "some of [SDMB
skydivers]...walked across taxiway B, and then onto the ramp."48 A few days later, on October 27, 2013, a
skydiver landed on the taxiway adjacent to the DZ. This individual was injured, and was evacuated to the
hospital.49 Also in October 2013, and following an inspection by a North Myrtle Beach fire inspector,
SDMB was informed that several electrical modifications/repairs had to be made at its facility to avoid a fine
or violation. According to SDMB, "due to the County's failure to correct the electrical deficiencies, SDMB
was issued a fine for the violations by the North Myrtle Beach Fire Department and paid a $205 dollar fine. 50
On November 27, 2013, the County wrote to SDMB about an unrestrained dog roaming in the active aircraft
operating areas of the airport and about overnight guests staying in the Hangar. The County asked that such
activities cease and noted that failure to take corrective action would result in the revocation of SDMBs
Operating Permit and Space Use Permit.51
On December 4, 2013, the South Carolina Flight Standards District Office (FSDO-13) notified operators at
CRE that on February 19, 2014, it would be conducting the annual meeting for all operators to discuss
"safety issues concerning banner tow operations, parasail activities, parachute activities..." and other
providers. The FSDO noted that operators "must attend the meeting" and provide "safety plans for [their]
operations."52 On December 10, 2013, the County's Council considered Resolution R-13. This resolution
" FAA Exhibit 1, Item 5, pages 8-9. See Affidavit of Aaron Holly, FAA Exhibit 1, Item 11, Exhibit A, page 1.
" FAA Exhibit 1, Item 5, page HCDA-00001.
42 FAA Exhibit 1, Item 1, Exhibit 2, page 7.
45 FAA Exhibit 1, Item 1, page 4, and Exhibit 1, pages 14-15.
" FAA Exhibit 1, Item 1, Exhibit 3, page 54-57.
" FAA Exhibit 1, Item 1, Exhibit 1, page 86.
5° FAA Exhibit 1, Item 1, page 4, and Exhibit 2, pages 22-24.
Page 6
was to "authorize the renewal of a Space Use Permit for Skydive Myrtle Beach, LLC at Grand Strand
Airport."53
On January 6, 2014, SDMB denied the allegations in the County's November 27, 2013 letter.'
On January 21, 2014, the ATCT notified SDMB that "[often jumpers] land outside of the landing zone," and
that "when the season starts with banner tow and helicopter rides, [it is] going to be unsafe to conduct both
operations at the same time..." The ATCT reiterated that the LOA "...does not speak of landing anywhere
other than the designated landing zone," and that the ATCT is tasked "with the safety of all...users."55
On January 23, 2014, SDMB requested a meeting with the ATCT to address its safety concerns and discuss
operations. In response, the ATCT indicated that the County should also be a party to the discussion. In that
communication, SDMB stated that pursuant to its Operating Permit, it was "permitted to land anywhere
within 5 (five) miles of the airport, if necessary."56 SDMB also requested that at the meeting, legal counsel
be present in order "to come to a mutually beneficial agreement prior to any irreparable financial harm
suffered by [SDMB] based on unregulated safety violation concerns or perceived possibilities of such."'
On January 26, 2014, the ATCT manager notified SDMB that on that day, "people [walked] on the taxiways
and [drove] golf carts on the taxiways without getting permission from the tower first." The ATCT manager
also noted that those actions are "against the rules as we have spoken about this before. In an effort to keep
the operation safe and by the rules can you re-brief your folks not to enter a taxiway or runway without [first
contacting the ATCT]." The ATCT manager added that "the rules for entering the taxiway don't have
exceptions," and that "we may talk with the runway incursion [FAA Runway Safety] folks again [in
reference to] the golf carts and...today."58
On January 31, 2014, SDMB's 2012 Space Use Permit expired.59 On February 3, 2014, SDMB was
contacted by the County about another Vehicle/Pedestrian Deviation (VPD) complaint by the ATCT.6°
On February 1, 2014, an FAA Airport Certification Safety Inspector notified the County that the FAA had
received "another [VPD] incursion report...for CRE," and asked the County to "explain [its] response and
what action has been taken to curtail this activity.
61
On February 4, 2014, and following notification by the ATCT, the FAA requested information from the
County regarding the January 26, 2014 VPD by SDMB (see above). In turn, the County asked SDMB for
details on the incident, to which SDMB admitted that its vehicle had "not contacted" the ATCT but that it
"would request permission prior to entry on taxiway in future."62
On February 7, 2014, SDMB met with the ATCT to discuss the ATCT's complaints to the FAA.63 At the
meeting, the ATCT advised SDMB about the LOA between the County and the ATCT whereby procedures
for vehicular and pedestrian entry into 'active areas' have communication protocols. SDMB agreed to
comply with these provisions, but requested a copy of the LOA so that it could implement internal
procedures to meet the terms of the LOA. Following the meeting, the ATCT provided SDMB with the
reference to 14 CFR § 139.329 which was cited as the basis for the complaints to the FAA and the County.
"FAA Exhibit 1, Item 20.
54 FAA Exhibit 1, Item 1, Exhibit 1, pages 109-110.
" FAA Exhibit, Item 3, page 9.
56 See reference in FAA Exhibit 1, Item 1, Exhibit 1, page 148 (LOA).
5B FAA Exhibit 1, Item 1, Exhibit 1, page 117.
6° FAA Exhibit 1, Item 1, Exhibit 1, page 130.
63
FAA Exhibit 1, Item 1, page 5.
Page 7
Skydive Myrtle Beach, Inc. v. Horry County Department of Airports, South Carolina (FAA Docket No. 16-14-051
Also on February 7, 2014, SDMB requested repairs to its hangar (Hangar 7) for electrical, lighting and street
side door access to mitigate the difficulties in receiving and accepting parcel deliveries.64
On February 10, 2014, the ATCT and SDMB included ground communications as part of a proposed and
revised LOA.65 The draft LOA provided that "parachutists are authorized to land in the defined [DZ] only
and are not authorized to land on any runway, taxiway, or ramp area." The draft LOA reiterated "[ATCT's]
ground communication" protocols, requiring SDMB to "notify [the ATCT] prior to crossing any identified
active taxiway or runway during operational hours of [the ATCT]."66 As part of this process, the FSDO
provided input to the draft LOA.67
On February 14, 2014, and concerning 14 CFR § 139.329 reference provided by FAA, the ATCT stated that
it "[goes] along with the LOA with the airport." SDMB concurred and added that "...in conjunction with the
LOA this makes complete sense...now that we have a copy, we have implemented SOPs here where this
should no longer present itself as an issue henceforth."68 Also on February 14, 2014, [the ATCT] indicated
that it would attend a safety meeting scheduled for March 8, 2014, adding that it planned to do all it can "to
make this work for all of us."69
On February 19, 2014, SDMB sent its proposed LOA to FAA Air Traffic." Also on February 19, 2014, the
County notified SDMB that its Space Use Permit had expired on January 31, 2014. The County provided a
new Space Use Permit for SDMB's review and acceptance. The County's letter communicating this offer
included a list of multiple instances (10) of unsafe jumping practices, as well as vehicle and pedestrian
incursions onto runways and taxiways, some of which necessitated FAA reporting and investigation.' The
County stated that these incidents constituted a violation of SDMB's existing (albeit expired) Space Use
Permit and its Operating Permit.72
Despite this, the County clarified that although it "is unwilling to offer SDMB a leasehold interest in
the...hangar [Hangar 7] facility at this time," as an alternative, it "is willing to enter into a new, short-term
Space Use Permit, with the understanding that a violation of any terms contained in such Space Use Permit
will result in SDMB being required to vacate the premises after 24-hour notice." 73 The Space Use Permit
included the following conditions:
•
•
•
•
•
All jumps in compliance with LOA between the County, Air Traffic, and SDMB;
No unauthorized vehicles will be permitted inside the security fence;
No flammable substances permitted in any space subject to the agreement;
Fees: $1,200/month or 24% of gross revenues, whichever is greater; and
Any breach of the agreement by SDMB will provide grounds for immediate termination and SDMB
will vacate the premises within 24 hours after being provided written notice of such termination."
The February 19, 2014 letter also noted that,
FAA Exhibit 1, Item 1, page 5. On February 17, 2014, SDMB attempted to address its maintenance, mail delivery issues with the County. FAA Exhibit 1, Item 1,
Exhibit 1, page 210.
68 FAA Exhibit 1, Item 1, Exhibit 1, pages 191 192.
" FAA Exhibit 1, Item 1, Exhibit 1, page 214. The reference to FAA Air Traffic is related to the entity with oversight responsibility for the airspace over and around
CRE.
" FAA Exhibit 1, Item 3, pages 12-13.
" FAA Exhibit 1, Item 1, Exhibit 3, pages 54-57.
74 FAA Exhibit 1, Item 1, Exhibit 3, pages 54-57. Other requirement included "no overnight occupancy of any space subject to the agreement is permitted, no
outside vendors unless conditionally approved by the County, and SDMB will provide at least 10 days' notice to the County of any planned events."
64
Page 8
[I]n light of the fact that SDMB is currently occupying County property without authorization, the
new Space Use Permit must be signed and returned to [the County] within 72 hours from the time it
is delivered. If SDMB declines to sign and return this Permit within the time set forth, you will need
to vacate the premises immediately, as [the County] will change the locks and deny access to the
premises as of the close of business on Saturday, February 22.75
The County added that it
certainly [hoped] to be able to maintain an on-going relationship with [SDMB's] skydiving
operation, as we believe that such a properly conforming business is a welcome and beneficial use of
the County's [Airport]. We also understand that based upon recent measures on your part, you have
attempted to address and correct some conditions that have led to certain of these prior incidents at
the airport. The County is appreciative of these efforts, but requires your full commitment in order
to continue to allow SDMB the use of County-owned property.76
On February 21, 2014, SDMB replied to the County letter, denied violating any regulation, asked for a copy
of the County's operating regulations or authorities, and sought to work out the issues between the County
either informally or in a court.77 On February 24, 2014, SDMB filed a Formal Complaint with FAA.78
On February 26, 2014, the County informed SDMB that it did not engage in "good faith" negotiations prior
to filing its 14 CFR Part 16 complaint and requested that it be withdrawn. By letter dated February 28, 2014,
SDMB argued that the Part 16 Complaint was discrete from its state court complaint, indicated its
willingness to resolve the matters, but declined to withdraw its complaint before the FAA.'" On March 4,
2014, the County moved to dismiss the Part 16 Complaint. On March 18, 2014, FAA dismissed the
Complaint for incompleteness."
On March 20, 2014, the County issued a policy letter for tenant mail and parcel delivery for tenants and
instituted driver training,81 while on March 25, March 27, and March 28, 2014, SDMB alleges the County's
driver's training course were scheduled, rescheduled, and eventually cancelled and have not been
rescheduled to date.' The County denies this." SDMB also reported that on April 3, 2014, the County
dumped approximately six (6) yards of peat moss on the SDMB staff parking lot, illustrated by photographs
in the record."
On April 1, 2014, the County notified SDMB that, concerning the on-going construction at the airport, it
would be "acceptable to move the [DZ] back to the location north of the parking ramp...the construction
equipment and all movable obstacles have been removed." In addition, the County re-iterated that SDMB' s
operations "must be conducted in accordance with the LOA...with... date of 5/11/2012.'5
On April 4, 2014, the County presented draft minimum standards to the Administrative Committee of the
Horry County Counci1.86 The minimum standards covered several issues including rules, regulations,
insurance requirements, limitations, and operating requirements. As part of these deliberations, the County
" FAA Exhibit 1, Item 1, Exhibit 3, pages 56-57.
76 FAA Exhibit 1, Item 1, Exhibit 3, pages 57.
" FAA Exhibit 1, Item 1, page 6. Note that the Complainant states that the reply occurred on February 21, 2012. Given the context, the director assumes that this
was unintentional error and that the correct date for this event is February 21, 2014.
ao FAA Exhibit 1, Item 1, Exhibit 3, pages 35-44.
" FAA Exhibit 1, Item 1, Exhibit 3, pages 34.
"FAA Exhibit 1, Item 1, Exhibit 3, pages 28. The apparent failure to follow through with driver training is not per se a violation of the County's federal obligations,
but the Director notes that it will have to be implemented as an integral part of any resolution (risk mitigation) to the skydiving safety issues discussed herein.
83 FAA Exhibit 1, Item 15, page 2. See FAA Exhibit 1, Item 5, page HCDA-000159. See FAA Exhibit 1, Item 5, page HCDA-000179, and 180.
84 FAA Exhibit 1, Item 1, Exhibit 1, page 234-235 (photographs).
Page 9
stated that "there were some recent issues which have already occurred at [CRE], which have now involved
them in litigation...[requiring] some basis or standards set in place as quickly as possible at those GA
airports, especially at [CRE]."87
On April 5, 2014, the pilot of a taxing aircraft reported that he "landed on runway 23 and exited at B
intersection onto B taxiway...within a few seconds, a green canopy was closing in on my position." The
pilot noted that he "applied brakes and reached for the mixture to cut off the motor, in an attempt to not have
[the] prop turning if [the skydiver] hit my aircraft." He reported that "ground control quickly warmed me
about [the skydiver] as he closed on my position within 30 feet.... [the Skydiver pulled left as he was
travelling down taxiway B and landed in the drainage ditch just off the runway...other solo skydivers then
descended along the edge of the ramp approximately 200 feet to my left...ground control again warned me
that they were 'landing everywhere...' the controller was less than pleased."88
On April 7, 2014, the County offered reducing the monthly lease percentage of gross from 24% to 10%.
This same correspondence covered several issues and conditions and included a reference to eviction
proceedings if these were not accepted by SDMB.89
On April 12, 2014, SDMB threatened to file yet another 14 CFR Part 16 complaint with the FAA because
one of its aircraft was held up by the ATCT for a banner towing operation.9° That same day, the ATCT
manager indicated that he would begin to forward his complaints (safety incidents) to the FSDO and the
County.91 On April 18, 2014, SDMB stated that it attempted to negotiate terms for leasing Hangar 7, and
requested a meeting to finalize the LOA.92
On April 28, 2014, the County issued a Notice of Termination to SDMB. The termination was conditioned
on SDMB accepting the terms outlined of the above mentioned April 7, 2014 correspondence.93 The letter
further stated, "SDMB may not base its aircraft or its skydiving operations at CRE," but "as long as SDMB
operates in accordance with all applicable laws, including the [LOA]...SDMB may continue to use the
aeronautical facilities at CRE, including the landing zone as a transient operator." However, the County
added "without a valid Space Use Permit, SDMB must vacate Hangar No. 7 and may not base its aircraft at
CRE. "94
On May 10, 2014, the ATCT notified SDMB it was forwarding to FAA a complaint for an active taxiway
incursion.' That same day, the County wrote to SDMB that the "FAA reached out to us and we're required
to respond with a plan, hopefully together, to avoid what they see as a serious safety concern." In response,
SDMB stated that it operates "within the strict guidelines of all FARs and [advisory] circulars and any other
regulation concerning skydiving operations...we always utilize radio communications with the tower...all
jumpers are briefed on our airport procedures and if one fails to comply with our rules, we send them home."
SDMB added that to this date, the [county and the ATCT] has not discussed with us or given us the LOA
[under] which the two of them operate," and that "we will add this 'harassment' to our federal complaint,
which is ongoing and to our lawsuit against the County."96
On May 14, 2014, the County sent a letter to the FAA's Atlanta Airport District Office (ADO) to report
concerns over two safety incidents (landings outside the DZ) which occurred at CRE on April 24 and May
" FAA Exhibit 1, Item 9, page 6-7.
9° FAA Exhibit 1, Item 1, Exhibit 1, page 240. The Director notes that the ATCT manager provided an adequate explanation for this incident and thus this issue is
not revisited or further discussed in this Complaint.
94 FAA Exhibit 1, Item 1, page 7-8.
% FAA Exhibit 1, Item 1, Exhibit 1, page 251.
Page 10
10, 2014. The County also further outlined its plans to temporarily move the DZ (also discussed on April 1)
to accommodate airport construction but expected that the "errant jumps would cease."'
On May 19, 2014, the County requested information from SDMB in order to respond to an FAA Letter of
Investigation (LOI) regarding the unauthorized runway crossing of May 10.98 The County took the position
that it was "reaching the end of what we can do to curtail this issue," and that [SDBM] had "to show tangible
evidence that we're working towards a solution."99 In response, SDMB stated that it "always utilize[d] radio
communications with the tower," to which the County repeated that the "FAA reached out to us and we're
required to respond with a plan, hopefully together, to avoid what they see as a serious safety concern."l oo
The next day, May 20, 2014, the Horry County Council enacted minimum standards for CRE, Conway Horry
County Airport (HYW), and Twin City Airport (5J9).”101 The minimum standards, included requirements
applicable to all aeronautical operations at CRE, including commercial skydiving operations.'
On May 22, 2014, SDMB gave a counter offer to the above mentioned County's Notice of Termination
involving Hangar No. 7 and again requested a meeting to finalize the LOA.' That same day, some of
SDMB's skydivers landed on or near the beach, instead of in the designated landing zone at CRE, as expected.
As a result, the ATCT requested SDMB to inform the ATCT in advance if its skydivers were going to land
somewhere other than the DZ, so that it would be able to advise other aeronautical users.' Two days later,
on May 24, 2014, the ATCT wrote yet again to SDMB noting skydivers had crossed the runway without
coordinating with the ATCT.1°5
On May 28, 2014, the County rejected SDMBs counter offer and demanded SDMB to vacate Hangar No.7
and remove its aircraft from CRE.106 On May 29, 2014, SDMB offered mediation with the County in an
attempt to resolve the issues. The following day, May 30, 2014, the County conditionally accepted SDMBs
offer to mediate.1"
On June 5, 2014, the County conditionally accepted SDMBs offer to mediate with several modifications but
also filed an Application for Eviction in Myrtle Beach Magistrate's Court.1°8
On June 7, 2014 FAA FSDO inspectors conducted a spot inspection of SDMB's facilities. SDMB states that
"during the inspection, the FAA inspectors stated that their [office mailboxes] were 'full from complaints
about violations from County and Aircraft Control Tower emails.' No discrepancies or violations were
discovered after inspecting all skydiving equipment and the aircraft for approximately two hours. During the
inspection, SDMB business was suspended."'
On June 10, 2014, SDMB was provided with a revised draft of the LOA which incorporated input from FAA
Air Traffic and Flight Standards. SDMB objected to some of the provisions, including penalty and reporting
provisions. SDMB also objected to the LOA' s provision documenting safety hazards which states "within 24
hours of any parachute jumper landing outside of the [DZ] or other deviations by the parachute operation...
[ATCT] shall notify [the County], in writing, of each incident...the incident reporting form shall be furnished
by [the County].',110
98 FAA Exhibit 1, Item 5, page HCDA-000158-159.
102 FM Exhibit 1, Item 15, page 2.
105 FAA Exhibit 1, Item 1, Exhibit 1, pages 257 and 268
1
1
109 FAA Exhibit 1, Item 1, Affidavit of Aaron Holly.
Page 11
The next day, June 11, 2014, the ATCT manager at MYR, and within the context of a communication with
SDMB on the subject of the draft LOA, stated "I want to go on record and let you know that the safety of
parachute operations is a major concern in the National Airspace System. More specifically, it is currently
one of the top 3 safety concerns."111
On June 24, 2014, the County, the ATCT, and SDMB met again to discuss the LOA. At this meeting, it was
agreed that operations would continue under the terms of the existing LOA until the matter could be finalized.
Incident reporting was discussed, and the County noted that the ATCT was reporting all skydiver taxiway
crossings to the County as the County had requested.112 On June 25, 2014, the parties met yet again to discuss
the draft LOA.113
On June 27, 2014, SDMB requested information about the regulatory authority under which the ATCT
reported skydivers on active areas to the FAA. SDMB also requested a discussion concerning 14 CFR Part
105. In response, the ATCT referred SDMB to the FAA.114 That same day, the County notified SDMB that
"incidents involving skydivers that missed the [DZ] ...can pose a serious safety threat to the users of CRE,"
and expressed its desire to "work together to improve the safety at [CRE]. It115 The County added that the goal
"is to provide a safe, operationally efficient airport..." and that "as a first step to improving safety and
efficiency at CRE, [the County has] implemented an incident reporting system for all events that create an
unsafe operating condition at the airport."116
On July 1, 2014, Complainant filed a second 14 CFR Part 16 Complaint with the FAA. SDMB stated that
there was "no other option than for SDMB to refile its complaint for resolution by FAA" and that "without
FAA intervention for the reasons enumerated below, there is no reasonable prospect for practical, equitable,
and timely resolution of the dispute."' On July 11, 2014, the County wrote to SDMB to raise its concern
over the "continued occupation of Hangar 7." The County noted that the Space Use Permit had expired and
that SDMB "has refused to sign a second Space Use Permit" and instead "file suit in South Carolina state
court as well as filed two separate Part 16 complaints with the [FAA].,,iis
On July 28, 2014, the FAA accepted the Complaint and issued a Notice of Docketing.119
On October 30, 2014, the County held a public meeting to discuss the minimum standards.,in On November
3, 2014, SDMB voiced objections to the minimum standards for CRE and explained that the "entire skydiving
operation section is written to discourage skydiving operations and could be written more efficiently for safety
purposes." SDMB objected to several other aspects of the minimum standards including the use of a space
use permit instead of a lease, insurance requirements, use of vehicles at the airport, planned events,
restrictions on alcohol use, and the requirement for a safety and efficiency study.121
In November 2014, SDMB received a state court Order concerning its proceeding against the County and its
employees. The Order dismissed the state court claims against individual defendants.122 SDMB filed an
appeal to this Order. SDMB then filed a motion to supplement the record with the FAA pursuant to 14 CFR §
16.23(j).123
111 FAA
Exhibit 1, Item 1, Exhibit 1, page 311.
1" FAA Exhibit 1, Item 3, page 14.
"'FAA Exhibit 1, Item 1, Exhibit 1, page 10.
117 FAA Exhibit 1, Item 1, pages 3.
118 FAA Exhibit 1, Item 4, Exhibit 4.
1" FAA Exhibit 1, Item 2.
120 FAA Exhibit 1, Item 6, page 7, note 14.
121 FAA Exhibit 1, Item 6, Exhibit A, page 106.
322 Order signed by the Honorable Judge Larry B. Hyman, Jr. in the Court of Common Pleas action styled, Skydive Myrtle Beach, Inc., (f/k/a Skydive Myrtle Beach,
LI,C) v. Horn/ County. Barry County Deoartmentof Airports, H. Randolph Heidi, Pat Apone. Tim Jackson. and Jack Teal, Case No. 2014-CP-26-1193, dated October
112
13, 2014, and filed October 17, 2014.
Page 12
On December 31, 2014, SDMB filed a Motion to Supplement the Pleadings objecting to the County's
adoption and enforcing of regulations, as well as state law, County legislative, judicial, and executive
"irregularities.9,124
On January 9, 2015, the County filed a Letter in Opposition to Motion to Supplement the Pleadings. The
County arguments included an assertion that SDMB "has not met the standards for showing good cause for
filing the additional materials...and the motion should be denied."125
On January 14, 2015, SDMB filed its response to the County's January 9, 2015 objection. SDMB posited,
amongst other arguments, that good cause existed for filing additional materials, and that the County
mishandled the manner in which it made the minimum standards known to SDMB .126 On January 20, 2015,
the County Council approved the minimum standards under Ordinance Number 115-14.127
Aware of the ongoing safety issues concerning skydiving operations at CRE, on April 7, 2015, the FAA's
Southern Region Airports Division sent a letter to the County raising concerns over skydiving operations at
CRE. The FAA letter sought "to identify what actions [the] County is taking to address what [FAA] now
consider[s] a significant safety trend and accident precursors that must be mitigated" and to "determine if
[CRE] is safely operating in accordance with the County's federal airport obligations. 128
The letter referenced eight separate safety events, which had occurred at CRE between November 10, 2013
and March 28, 2015. The FAA letter referenced the federal obligation requiring "the County to ensure that
the airport and all facilities necessary to serve the aeronautical users of the airport are operated at all times in a
safe and serviceable condition" and including that "the County may not cause or permit any activity or action
on the airport which would interfere with its use for airport purposes."129 The FAA asked the County to
respond within 15 days and address (1) rules and regulations to mitigate the safety of ground operations in the
airport movement area (and their update and enforcement), (2) training for the ground users with access to the
movement area, (3) details concerning a risk-based safety plan.13°
On April 27, 2015, the County responded to FAA's letter. The County stated that it "shares [FAA's] concern
regarding the number of VPDs" and that "each and every VPD is related to... [SDMB]."131 In its letter to the
FAA, the County asserted:
•
Although it has undertaken a series of actions, the only real reduction in the number of VPDs and other
incidents involving skydivers occurred when SDMB was operating sporadically due to their turnover in
aircraft and maintenance issues (October 2014-February 2015), but after SDMB resumed full operations,
numerous VPDs are once again being reported. 132
•
Each and every one of the VPDs involves one or more skydivers, and in each case, the skydiver in
question failed to land within the designated [DZ] and that more than 90% of the safety incident reports
involving one or more skydivers associated with SDMB.133
•
The County has sought to enter into a new LOA, but SDMB objected to certain provisions, notably, the
provision imposing penalties for failure to comply with existing policies, including VPDs.134
"6 FAA Exhibit 1, Item 14.
"° FAA Exhibit 1, Item 14.
133 The County also states that "since the very first VPD, [County] staff has repeatedly offered training, warnings, and provided SDMB with copies of the policy
applicable at CRE that prohibits crossing an active runway or taxiway without permission from the control tower during tower operating hours. In the spring of
2014, and as the direct result of multiple VPDs and other incidents involving errant landings of skydivers at CRE, [the County] began collecting data regarding
safety incidents at CRE to better identify potential causes of such incidents." FAA Exhibit 1, Item 15, page 1.
124
125
Page 13
•
Because of the ongoing Part 16 process and because skydiving is an aeronautical activity, SDMB has
been allowed to continue operating during the pending these legal actions, but communication attempts
with SDMB about SDMB's violations and unsafe operations are cited by SDMB as evidence of
discrimination by the County. 135
•
SDMB denies that any incursions have occurred, asserting that skydivers are not pedestrians, even when
they are walking on the ground, and therefore there can be no VPDs involving skydivers crossing an
active runway or taxiway. 136
•
Based upon the regular and frequent failure of SDMB skydivers to land within the DZ, the County
believes that additional safety measures, including restrictions on SDMB's operations, must be imposed
to prevent further serious incidents.137 The County would like to meet with FAA to propose a range of
potential safety restrictions on skydiving, including the following (1) closing the DZ and possibly
relocating it to a location where interference with aircraft traffic can be minimized or eliminated
(County's preferred option); (2) not permitting SDMB to operate if it continues to violate rules and
regulations; (3) permitting operations only in low wind conditions; and (4) requiring a USPA license
demonstrating a certain minimum level of skill, or skydive only as tandem jumps.138
The County responded to each of the questions posed in FAA's letter as follows:
1. CRE has rules and regulations regarding the management of ground operations in the airport
movement area. The Minimum Standards incorporate those rules and regulations by reference, and
contain numerous requirements that have been violated by SDMB, and regulate operations, vehicular
operation on the airside, and skydiving specifically. They also provide for sanctions from monetary
penalties to suspension, escalating as the frequency of violations increases.139
2.
One of the purposes of adopting the Minimum Standards was to clearly state the requirements for safe
operations at CRE, including skydiving. SDMB has been provided with the Minimum Standards and
SDMB has commented upon them. 14°
3. The County conducts regular driver training sessions. Members of the SDMB staff have participated
in such training. Starting in 2015 the training session is conducted at a minimum of twice a year, or
upon request by a tenant or operator....the County offered 3 classes in April, 2015. 141
4.
Partly in response to the VPDs, [the County] adopted the Minimum Standards and provided copies of
the existing rules and regulations regarding crossing active movement areas...and instructed SDMB to
inform its customers of these requirements. 142
Finally, in its letter to FAA, the County states that it shares "the FAA's concern regarding the VPDs resulting
from the errant skydivers operating at CRE. We suggest that [the County] and FAA working together can
develop additional means to ensure that all aeronautical operations at CRE can be undertaken in a safe
manner, and we look forward to meeting with you and your colleagues to explore additional measures that we
can take together." The County is also seeks "other suggestions that FAA may have to address the continuing
safety issues raised by the inability of SDMB's skydivers to land within the [DZ]."143
"El FAA Exhibit 1, Item 15, pages 2-3.
"'FAA Exhibit 1, Item 15, page 3.
143
Page 14
On May 6, 2015, the FSDO sent a letter to Complainant raising safety concerns about skydiving operations at
CRE. The FSDO characterized the skydiving incidents at CRE as constituting "in their number and on the
basis of their repetitive nature, an egregious and callous disregard for the safety of not only the jumpers, but
the safety and security of persons and property on the ground." The FSDO added that the "evident disregard
for the well-being of persons and property represents an intolerable hazard and these events must be
diminished or eradicated without delay in the interest of operational and public safety./1144
On May 31, 2015, SDMB put 11 jumpers out over the airport, and three of them made it to the airport, and
eight of them landed on the beach. This was done without the FSDO providing the required authorization.
The FSDO has sent letters of investigation to SDMB, one regular and one certified return request. However,
SDMB has not responded to either letter. The FSDO reports (July 2015) that it is proceeding with this as an
enforcement case.145
On July 29, 2015, FAA Safety Inspectors from FSDO-13 visited SDMB and met with Mr. Arron Holly, the
owner. The FSDO stated that the visit did not produce any satisfactory results. The following excerpts are
from the memorandum compiled by the FSDO following the meeting:
"...Mr. Holly said that he is in full compliance with [14] CFR part 105, and does not believe that any
parachutist that lands in other than an authorized [DZ] does anything wrong. [The FSDO] showed him the
(5) Mandatory OCcurrence Reports (MOR) for the weekend...as well as the Pedestrian/Vehicle Deviation,
and he believes they are all fabrications made up by [the ATCT]. He doesn't think that the tower should
be at this airport because there is little traffic...
...[Mr.] Holly said that because there is nothing in writing, there is also no [DZ] at the airport that they are
required to land in, and that jumpers can, and do, land anywhere on the airport. Mr. Holly believes that
there is nothing wrong with landing on the taxiway, as long as the jumper gets right off. He also believes
that a jumper can land anywhere on the controlled airport, because there is no current written agreement
saying where they have to land...
...[FSDO personnel] told him that the reason [they were] there was to attempt to reduce the amount of
parachutists who land outside of the [DZ], and to reduce the possibility of people getting hurt. He says
that that is not going to happen. He said that no one has been hurt in the three years they have been there,
and there would not be any reduction in the jumpers landing out of the [DZ], because the airport is where
they can land, and not the drop zone as we know it...
...Mr. Holly never mentioned that there were any risks involved or not. [He] believes his company is
doing everything correctly. No amount of discussion [the FSDO] had with him changed anything."146
On August 4, 2015, an ATO Memorandum to the Director, Air Traffic Operations, Eastern Service Area,
South, AJT-ES, concerning an Audit of Parachute Operations in the Myrtle Beach, South Carolina discussed
the skydiving safety issues at CRE. Some of the statements in the memorandum are as follows:
"Skydive Myrtle Beach is not in compliance with the LOA by consistently violating the landing zone
parameters. This violation is a disregard for the well-being of persons and property that represents an
intolerable hazard and these events must be diminished or eradicated without delay in the interest of
operational and public safety...
...The jumpers that have landed outside of the agreed upon [DZ] are clearly a breach of the LOA.
Moreover, they appear to constitute in their number and on the basis of their repetitive nature, an
144
FAA Exhibit 1, Item 22A.
FAA Exhibit 1, Item 22B.
145
Page 15
egregious and insensitive disregard for the safety of not only the jumpers but the safety and security of
persons and property on the ground. Specifically, we have documented thirty-nine operations through
Mandatory Occurrence Reports (MOR's) since March 15, 2015 where the jumpers landed outside of the
Landing Zone as depicted in the LOA. There were also eight (8) Pedestrian Deviation Reports filed
during the same timeframe. The breakdown of these thirty-nine operations is as follows:
•
•
•
•
Total number of jumpers outside of the Landing Zone — 54
Total number of jumpers landed on the movement area at CRE — 8
Total number of jump landings that impacted other traffic at CRE —4
Total number of operations that landed off the Grand Strand Airport property — 9
...Additionally, on July 25, 2015, there were nine (9) jumpers that missed the Landing Zone and two (2)
of these landed on the movement area. Jumpers have actually walked on the active movement area
crossing taxiways and runways...
...Mr. Glen Ray, CRE Air Traffic Manager (ATM) advised that there have been a number of meetings
and phone conversations with Skydive Myrtle Beach to discuss the Landing Zone concerns...Mr. Ray
further advised that Skydive Myrtle Beach has always participated [with] a confrontational posture with
minimal results when trying to resolve this situation...
...Safety is compromised with every non-compliant landing outside the Landing Zone. Other impacts to
the National Airspace System (NAS) as the ATM advised arc possible delays to other airport users
arriving or departing to ensure a safe operation and protect the jumpers....
...Horry County Director of Airports and Assistant Director or Airports have advised that there have
been numerous complaints from other CRE users and the City of Myrtle Beach. The complaints ranged
from delays both into and out of CRE, conflicts with jumpers landing on the movement areas, and
landing off the airport without permission...
...Flight Standards District Office (FSDO) in Columbia, SC tried to make an effort to reach out to
provide some safety training to the Skydive Myrtle Beach personnel. This training was to provide
educational programs focusing on basic safety requirements and methods, creating safe operation habits,
crew briefings and landing zones. This offer was never accepted...
...ESC [FAA ATO Eastern Service Center] QCG [FAA ATO Quality Control Group] recommends that
the LOA be terminated immediately until all parties can meet to mitigate the unsafe operation."147
On August 12, 2015, and as a result of SDMB's failure to respond to multiple FSDO requests for information,
FSDO personnel visited SDMB once again.148 Upon arrival, the FSDO inspectors were denied access to the
aircraft, records, certificated parachute riggers, and entrance into the hangar. The FAA inspectors notified
SDMB of the applicable FARs that require the FAA to be allowed access to the aircraft and records.149
Because of SDMB's refusal to accommodate the FSDO' s requests, an administrative subpoena was issued to
SDMB at that time. The FSDO report on the visit noted that:
"...this entire event was [recorded] ...outside on the ramp...something is going to have to get done ...to
somehow settle this...and either get the [DZ] redone at the airport, or move the [DZ] off of the airport.
Otherwise, we will continue to have people landing on taxiways, runways, and may eventually have
someone hurt, or worse... We have attached a video, and still pictures of a parachutist landing on the
i"
FAA Exhibit 1, Item 30.
"B FAA Exhibit 1, Item 22B.
149 The FSDO report on this matter (FAA Exhibit 1, Item 22B) stated" Mr. Holly (owner of SDMB)... told us to contact the owner of the aircraft, and we advised him
that he is he operator. He also said the pilot does not work for him, but works for the owner of the aircraft. Following the denial, we presented Arron Holly with
the Administrative Subpoena requesting information about eight parachutists landing on the beach on May 31, 2015. We also issue a Pilots Bill of Rights to him."
Page 16
ramp/taxiway area
of the airport. These photographs and video show the parachutist land in front of an
aircraft, the aircraft stopping, and the parachutist pulling his parachute out of the way of the aircraft..."15°
On September 1, 2015, the FAA's Director of Airport Safety and Standards (AAS-1) wrote to the County.
The letter discussed the safety concerns regarding skydiving operations at CRE. The letter stated that the
FAA "between March 2013 and August 2015, the FAA Air Traffic Control Tower (ATCT) and the Horry
County Department of Airports (HCDA), in South Carolina have reported approximately 91 safety
incidents involving skydiving operations at the Airport.151 These incidents involving Vehicle Pedestrian
Deviations, Major Occurrence Reports, and Unusual Incident Reports bring into question Horry County's
current compliance with its obligation to operate CRE in a safe manner, which includes the Drop Zone
(DZ) on airport property."152
The FAA letter also urged the County "to consider whether immediate steps should be taken to mitigate
unsafe skydiving practices at CRE and the risks imposed upon other airport users, within the context of
overall airfield safety." The letter added that "these safety incidents may be indicative of serious systemic
safety issues involving skydiving operations (e.g., landings outside of the Drop Zone) at CRE" and that the
County should "use its authority to ensure safe on-airport skydiving landings, to include the DZ." 153
On September 17, 2015, the County responded to FAA's letter. In the letter, the County refers to the situation
at CRE as representing "serious safety concerns" and adds that it has "been working diligently and
continuously with various FAA departments to ensure all avenues available to the airport to mitigate any
safety risks have been enacted." 154 The County also states that "by virtue of the more than 90 incidents you
reference, it has become abundantly clear that far too many skydivers are landing outside of the established
landing zone (LZ) specified under the LOA." 155
The County refers to the August 4, 2015 Memorandum from ESC, QCG, AJV-E1, 2015156 issued as a result
of an audit on Parachute Operation at CRE. The County cites the memorandum and stated that "the same
conclusions were reached, noting specifically the 'numerous meetings and efforts of engagement' with this
skydiving group, and their consistently confrontational behavior, and concluding with the statement that, ESC,
QCG recommends that the LOA be terminated immediately until all parties can meet to mitigate the unsafe
operation."'
In its letter to FAA, the County also notes that it "has been collecting data concerning these various incidents
to identify possible risk mitigation measures" and that "analysis of this data does not indicate that wind or
weather play any significant factor in the inability of skydivers to safely land in the LZ." Additionally, the
County adds that it "engaged an engineering firm to evaluate the current LZ using generally accepted and
recommended aeronautical standards" and that "based on their review, it was the determination of the
engineering firm that not only could the LZ not be expanded, but in order to improve safety at CRE, the
current LZ should actually be reduced in size to provide appropriate clearances from aeronautical operations
and structures."
Finally, the County states that despite having "repeatedly attempted to work with SDMB to prevent the
recurrence of safety incidents" but "each attempt has been met with refusal to address any of the safety
issues," it hereby formally requests FAA approval to immediately discontinue skydiving operations at CRE,
close the [DZ], and withdraw from the existing LOA." The County "recognizes that FAA is the sole arbiter of
FAA Exhibit 1, Item 22B.
number has been update since this letter was sent out to the County. See Table 1.
152
155
156 Included in the exhibit.
250
151 This
Page 17
what restrictions may be imposed due to safety concerns" and states that "in light of the skydiving operator's
steadfast refusal to comply with the terms of the existing LOA, [the County] earnestly believes that it is only a
matter of time before a catastrophic incident results." As such, the County "implores the FAA to provide their
concurrence to this request within seven (7) days of the date of this letter, in order to immediately remedy
what FSDO described as "an egregious and callous disregard" for the safety of CRE users and operators."'"
On September 30, 2015, the County again wrote to the FAA. In its letter, the County stated that "it is a
paramount concern for the [County] to maintain safe operations for all aeronautical users and operators at
[Airport]," and that it seeks to "immediately discontinue skydiving operations at CRE, close the LZ, and
withdraw from the existing LOA." The County added that "in one incident, an errant skydiver touched down
outside the landing zone on September 19, 2015, landing between the Air Traffic Control Tower and
Taxiway Alpha." The County also noted that "on September 27, 2015, a wayward parachutist landed on
Taxiway Alpha, just northeast of Taxiways Tango and Charlie." Finally, the County states that "while it is
fortunate that no injuries or property damage were reported as the result of either incident, [the County] fears
that it will only be a matter of time before we are writing to inform you of a catastrophic result" and thus
"reiterates its request for FAA concurrence to immediately discontinue skydiving operations at CRE, close
the LZ, and withdraw from the existing LOA."'"
V. ISSUES
Upon review of the allegations and the relevant airport-specific circumstances summarized above, the FAA
has determined that the following issues require analysis to provide a complete review of the Airport's
compliance with applicable Federal law and policy:
Issue 1 - Whether the actions taken by County with respect to Complainant's skydiving
operations at CRE are in violation of Grant Assurance 22, Economic
Nondiscrimination;
Issue 2 - Whether the actions taken by County with respect to Complainant's skydiving
operations at CRE are in violation of Grant Assurance 19, Operation, and
Maintenance;
VI. APPLICABLE FEDERAL LAW AND POLICY
The Federal role in civil aviation has been augmented by various legislative actions that authorize
programs for providing Federal funds and other assistance to local communities for the development of
airport facilities. In each such program, the airport sponsor assumes certain obligations, either by contract
or by restrictive covenants in property deeds and conveyance instruments, to maintain and operate its
airport facilities safely and efficiently and in accordance with specified conditions. Commitments assumed
by airport sponsors in property conveyance or grant agreements are important factors in maintaining a high
degree of safety and efficiency in airport design, construction, operation and maintenance, as well as
ensuring the public fair and reasonable access to the airport.
A. The Airport Improvement Program (AIP)
Title 49 U.S.C., § 47101, et seq., provides for Federal airport financial assistance for the development of
public-use airports under AIP established by the Airport and Airway Improvement Act of 1982, (AAIA) as
amended. Title 49 U.S.C., § 47107, et seq., sets forth assurances to which an airport sponsor agrees as a
condition of receiving Federal fmancial assistance. Upon acceptance of an ATP grant, the assurances become
a binding contractual obligation between the airport sponsor and the Federal Government. The assurances
15, FAA Exhibit 1, item 30.
Page 18
made by airport sponsors in AIP grant agreements are important factors in maintaining a viable national
airport system.
B. Airport Sponsor Assurances
As a condition precedent to providing airport development assistance under AIP, 49 U.S.C. § 47107, et seq.,
the Secretary of Transportation and, by extension, the FAA must receive certain assurances from the airport
sponsor. Title 49 U.S.C. § 47107(a) sets forth the sponsorship requirements to which an airport sponsor
receiving Federal financial assistance must agree. The FAA has a statutory mandate to ensure that airport
owners comply with these sponsor assurances:6° FAA Order 5190.6B, FAA Airport Compliance Manual
(Order), issued on September 30, 2009, provides the policies and procedures to be followed by the FAA in
carrying out its legislatively mandated functions related to compliance with Federal obligations of airport
sponsors.161 The FAA grant assurances that apply to the circumstances set forth in this Complaint are Grant
Assurance 19 Operation and Maintenance and Grant Assurances 22, Economic Nondiscrimination.
1. Grant Assurance 19, Operation and Maintenance
Grant Assurance 19, Operation and Maintenance, of the prescribed sponsor assurances, implements the
requirements of Title 49 United States Code U.S.C. § 47107(a)(7) and (a)(8). Assurance 19 provides, in
pertinent part, that the sponsor of a federally obligated airport will operate the airport and all facilities
necessary to serve the aeronautical users in a safe and serviceable condition at all times, and in accordance
with the minimum standards as required or prescribed by applicable Federal, state and local agencies for
maintenance and operation.
FAA Order 5190.6B describes the responsibilities under Assurance 19 "a fundamental obligation on the
sponsor is to keep the airport open for public use" and "Grant Assurance 19, Operation and Maintenance,
requires the sponsor to protect the public using the airport by adopting and enforcing rules, regulations, and
ordinances as necessary to ensure safe and efficient flight operations. Accordingly, the sponsor is more than
a passive landlord because the assurance federally obligates it to maintain and operate the aeronautical
facilities and common-use areas for the benefit of the public." It also explains that this responsibility
includes the following:
"Warnings. If any part of the airport is closed or if the use of any part of the airport is hazardous,
the sponsor must provide warnings to users, such as...Notice to Airmen (NOTAM).162
Safe Operations. The sponsor should adopt and enforce adequate rules, regulations, or ordinances
as necessary to ensure safety163...of aircraft operations and to protect the public using the airport.
Local Rules and Procedures. One of the most important functions of local regulations is to control
the use of the airport in a manner that will eliminate hazards to aircraft and people and structures
on the ground.3,164
FAA's Flight Standards office should be involved in all matters related to decisions dealing with, or relying
upon, a safety assessment.165 As in the operation of any public service facility, there should be adequate
rules covering vehicular traffic, sanitation, security, crowd control, access to certain areas, and fire
protection...." and that "sometimes, measures are needed to reduce the likelihood of a runway incursion.
See, e.g., the Federal Aviation Act of 1958, as amended and re-codified, Title 49 USC, §§ 40101, 40113, 40114, 46101, 46104, 46105, 46106, 46110; and the
Airport and Airway Improvement Act of 1982, as amended and re-codified, Title 49 USC, 4§ 47105(d), 47106(d), 47107(k), 47107(1), 47111(d), 47122.
161 The FAA considers it inappropriate to provide Federal assistance for improvements to airports where the benefits of such improvements will not be fully
160
realized due to restrictions on aeronautical activities.
The NOTAM is a notice or advisory distributed by means of telecommunication containing information concerning the establishment, conditions or change in
any aeronautical facility, service, procedure, or hazard, the timely knowledge of which is essential to personnel and systems concerned with flight operations.
See AC 150/5200-28 Notices To Airmen (NOTAMs) For Airport Operators, Date: 1/28/08.
163 Safety —The state in which the risk of harm to persons or property damage is acceptable. See FAA Order 8040.4A, page A-1.
164 FAA Order 5190.6B, pages 7-7, 7-8, and 7-9.
163
FAA Order 5190.6B, pages 22-6.
163
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FAA Order 5190.6B also stipulates that "FAA compliance personnel should carefully analyze accumulated
data in evaluating a sponsor's compliance performance and identifying appropriate actions to correct any
deficiencies noted."166 It also states that "consistent with the FAA mission, the most important objective in
FAA's oversight of the compliance program is to ensure and preserve safety at all federally obligated
airports."167 For example, if a safety problem is identified at an airport, FAA compliance personnel should
coordinate corrective action not only with the airport, but also with other FAA lines of businesses, including
Flight Standards and/or Air Traffic. When possible, action should also be coordinated with the FAA Runway
Safety Action Team (RSAT). The FAA has a number of initiatives underway to prevent runway incursions.
In addition, several FAA documents can help reduce the potential for runway incursions, and discuss runway
incursion prevention measures airport operators may consider implementing.168
Finally, FAA Order 5190.6B states that "when it becomes unsafe for aeronautical purposes, the airport
sponsor may have to discontinue an aviation use."169 In addition, as part of an investigation, FAA's Associate
Administrator for Airports, working in conjunction with Flight Standards and/or the Air Traffic Organization,
carefully analyzes supporting data and documentation, and make the fmal decision on whether a particular
activity can be conducted safely and efficiently at an airport.'
2. Grant Assurance 22, Economic Nondiscrimination
Grant Assurance 22 of the sponsor assurances requires, in part, that the sponsor of a federally obligated airport
assure:
a. It will make the airport available as an airport for public use on reasonable terms and without unjust
discrimination to all types, kinds, and classes of aeronautical activities, including commercial
aeronautical activities offering services to the public at the airport.
h. The sponsor may establish such reasonable, and not unjustly discriminatory, conditions to be met by all
users of the airport as may be necessary for the safe and efficient operation of the airport...
i. The sponsor may prohibit or limit any given type, kind or class of aeronautical use of the airport if such
action is necessary for the safe operation of the airport or necessary to serve the civil aviation needs of
the public."
Subsection (h) qualifies subsection (a) and subsection (i) represents an exception to subsection (a) to permit
the sponsor to exercise control of the airport sufficient to preclude unsafe and inefficient conditions that would
be detrimental to the civil aviation needs of the public. Grant Assurance 22, Economic Nondiscrimination,
deals with both the reasonableness of airport access and the prohibition of adopting unjustly discriminatory
conditions as a potential for limiting access. In all cases involving restrictions on airport use imposed by
airport owners for safety and efficiency reasons, the FAA will make the final determination on the
reasonableness of such restrictions when they appear to deny or limit access to, or use of, the airport.
C. The FAA Airport Compliance Program
The FAA discharges its responsibilities for ensuring airport owners' compliance with their Federal
obligations through its Airport Compliance Program. The FAA's airport compliance efforts are based on the
contractual obligations an airport owner accepts when receiving Federal grant funds or the transfer of Federal
FAA Order 5190.6B, at 2-6.
FAA Order 5190.6B, at 2-5.
1" FAA Order 5190.6B, pages 7-7, 7-8, and 7-9.
169 FAA Order 5190.6B, pages 22-6.
17° FAA Order 5190.6B, pages 14-2, 14-4, and 14-5. As the United States Supreme Court has stated, the FAA "requires a delicate balance between safety and
efficiency ... and the protection of persons on the ground.... The interdependence of these factors requires a uniform and exclusive system of federal
regulation [FAA determines safety] if the congressional objectives underlying the Federal Aviation Act are to be fulfilled." Jeff Bodin and Garlic City Skydiving v
County of Santa Clara, California, FAA Docket No. 16-11-06, (December 19, 2011) (Director's Determination) at 30 (quoting City of Burbank v. Lockheed Air
166
167
Terminal, 411 U.S. 624, 638-639 (1973)).
Page 20
property for airport purposes. These obligations are incorporated in grant agreements and instruments of
conveyance in order to protect the public's interest in civil aviation and to ensure compliance with Federal
laws.171 The goal is to ensure the availability of a national system of safe and properly maintained public-use
airports operated in a manner consistent with the airport owners' Federal obligations and the public's
investment in civil aviation."' FAA Order 5190.6B sets forth policies and procedures for the FAA Airport
Compliance Program."' The Order establishes the policies and procedures to be followed by FAA personnel
in carrying out the FAA's responsibilities for ensuring airport compliance."'
FAA Order 5190.6B also analyzes the various obligations set forth in the standard airport sponsor assurances,
addresses the nature of those assurances, addresses the application of those assurances in the operation of
public-use airports, and facilitates interpretation of the assurances by FAA personnel."' Therefore, in
addressing allegations of noncompliance, the FAA will make a determination as to whether an airport
sponsor is currently in compliance with the applicable Federal obligations. Consequently, the FAA will
consider the successful action by the airport to cure any alleged or potential past violation of applicable
Federal obligation to be grounds for dismissal of such allegations.
D. FAA Enforcement Responsibilities
The Federal Aviation Act of 1958, as amended, 49 U.S.C. § 40101, et seq., assigns the FAA Administrator
broad responsibilities for the regulation of air commerce in the interests of safety, security, and development
of civil aeronautics. The Federal role in civil aviation has been augmented by various legislative actions,
which authorize programs for providing funds and other assistance to local communities for the development
of airport facilities. In each such program, the airport owner or sponsor assumes certain obligations, either by
contract or by restrictive covenants in property deeds and conveyance instruments, to maintain and operate its
airport facilities safely, efficiently, and in accordance with specified conditions.
Commitments assumed by airport owners or sponsors in property conveyance or grant agreements are
important factors in maintaining a high degree of safety and efficiency in airport design, construction,
operation and maintenance, as well as ensuring the public reasonable access to the airport. Pursuant to 49
U.S.C. § 47122, the FAA has a statutory mandate to ensure that airport owners comply with their Federal
grant assurances. Pursuant to 49 U.S.0 § 40113(a) FAA is authorized to issue orders to carry out Part A of
Subtitle VII of 49 U.S.C. That section provides explicit authority for the Administrator of the FAA to "take
action the ... Administrator ... considers necessary to carry out this part, including the author' for" issuing
orders." Pursuant to 49 U.S.0 § 47122 the FAA may issue orders to the FAA has a statutory mandate to
ensure that airport owners comply with their Federal grant assurances.176 This subchapter includes the grant
assurances requiring reasonable access and prohibiting unjust discrimination to aeronautical users.
E. The Complaint Process
Pursuant to 14 CFR § 16.23, a person directly and substantially affected by any alleged noncompliance may
file a complaint with the FAA. The complainant shall provide a concise but complete statement of the facts
171 The Airport Compliance Program Is administered by FAA's ACO-100 Airport Compliance and Management Analysis. The Airport Compliance Division oversees
the Airport Compliance Program. The division holds primary responsibility for interpreting, recommending, and developing policies and resolving matters that
involve the Federal obligations of airport sponsors. It also adjudicates formal complaints and FAA-initiated investigations under 14 CFR Part 16.
"'The Airport Compliance Program does not control or direct the operation of airports. Rather, it monitors the administration of the valuable rights pledged by
airport sponsors to the people of the United States in exchange for monetary grants and donations of Federal property to ensure that the public interest is being
served.
73 See http://www.faa.gov/airports/resources/publications/orders/compliance_5190_6/.
174 It provides basic guidance for FAA personnel in interpreting and administering the various continuing commitments made to the United States by airport
owners as a condition of receiving a grant of Federal funds or the conveyance of Federal property for airport purposes.
"S The FAA Compliance Program is designed to achieve voluntary compliance with Federal obligations accepted by owners and/or operators of public-use
airports developed with FAA-administered assistance.
176 See, e.g., 49 U.S.C. § 40101, 40103(e), 40113, 40114, 46101, 46104, 46105, 46106, 46110, 47104, 47105(d), 47106(d), 47106(e), 47107, 47108, 47111(d),
47122. Moreover, the FAA Administrator prescribes air traffic regulations on the flight of aircraft for navigating, protecting, and identifying aircraft; protecting
individuals and property on the ground; using the navigable airspace efficiently; and preventing collision between aircraft, between aircraft and land or water
vehicles, and between aircraft and airborne objects. 49 U.S. C. § 40103(b) (2).
Page 21
relied upon to substantiate each allegation. The complaint shall also describe how the complainant was
directly and substantially affected by the things done or omitted by the respondents.' If, based on the
pleadings, there appears to be a reasonable basis for further investigation, the FAA will investigate the subject
matter of the complaint. In rendering its initial determination, the FAA may rely entirely on the complaint and
the responsive pleadings provided. Each party shall file documents it considers sufficient to present all relevant
facts and arguments necessary for the FAA to determine whether the sponsor is in compliance.' The
proponent of a motion, request, or order has the burden of proof. A party who has asserted an affirmative
defense has the burden of proving the affirmative defense. The complainant must submit all documents then
available to support his or her complaint.179 Title 14 CFR § 16.31(b-d) provides, in part, that "the Director's
determination will set forth a concise explanation of the factual and legal basis...on each claim made by the
complainant."
In accordance with 14 CFR § 16.33(b) and (e), upon issuance of a Director's determination, "a party
adversely affected by the Director's determination may file an appeal with the Associate Administrator
within 30 days after the date of service of the initial determination;" however, "if no appeal is filed within the
time period specified in paragraph (b) of this section, the Director's Determination becomes the final decision
and order of the FAA without further action." A Director's Determination that becomes final because there is
no administrative appeal is not judicially reviewable. Title 14 CFR § 16.247(a) provides for judicial review
of the Associate Administrator's final decision and order, as provided in 49 U.S.C. § 46110 or section
519(b)(4), 49 USC, § 47106(d) and 47111(d).
F. Minimum Standards
Advisory Circular AC 150/5190-7, Minimum Standards for Commercial Aeronautical Activities (August 28,
2006) provides basic information pertaining to the FAA's recommendations on commercial minimum
standards and related policies. Although minimum standards are optional, the FAA highly recommends their
use and implementation as a means to minimize the potential for violations of Federal obligations at federally
obligated airports. In accordance with U.S.C. § 47101, et seq., and the AIP Sponsor Assurances, the owner or
operator of any airport (airport sponsor) that has been developed or improved with Federal grant assistance or
conveyances of Federal property assistance is required to operate the airport for the use and benefit of the
public and to make it available for all types, kinds, and classes of aeronautical activity.
These Federal obligations involve several distinct requirements. Most important is that the airport and its
facilities must be available for public use as an airport.18° The FAA suggests that airport sponsors establish
reasonable minimum standards that are relevant to the proposed aeronautical activity with the goal of protecting
the level and quality of services offered to the public. Once the airport sponsor has established minimum
standards, it should apply them objectively and uniformly to all similarly situated on-airport aeronautical
service providers.181
The FAA objective in recommending the development of minimum standards serves to promote safety in all
airport activities, protect airport users from unlicensed and unauthorized products and services, maintain and
enhance the availability of adequate services for all airport users, promote the orderly development of airport
land, and ensure efficiency of operations. Therefore, airport sponsors should strive to develop minimum
standards that are fair and reasonable to all on-airport aeronautical service providers and relevant to the
aeronautical activity to which it is applied.182
177 14
CFR § 16.23(b) (3, 4).
CFR § 16.29.
778 14 CFR §§ 16.23, 16.29.
"The terms Imposed on those who use the airport and its services must be reasonable and applied without unjust discrimination, whether by the airport
sponsor or by a contractor or licensee who has been granted a right by the airport sponsor to offer services or commodities normally required to serve
aeronautical users of the airport.
181 The failure to do so may result In a violation of the prohibition against exclusive rights and/or a finding of unjust economic discrimination for imposing
unreasonable terms and conditions for airport use.
1" Advisory Circular AC 150/5190-7, Exclusive Rights and Minimum Standards for Commercial Aeronautical Activities (August 28, 2006).
178 14
Page 22
In past decisions, the FAA has found that it is not a violation of grant assurances for airport sponsors to
increase minimum standards. The FAA recognizes that frequent changes in an airport's minimum standards
may lead to the appearance of manipulating the standards to protect the interest of one or a few businesses at
the expense of others.' It is through the sponsor's objective and uniform application of its minimum
standards that allows it to meet the standard of compliance. The FAA expects airport sponsors to apply their
minimum standards consistently through their interactions with aeronautical users and service providers.
With that said, the standard of compliance does not require that airport sponsors enforce minimum standards
so rigidly as to require identical tone and posture toward all airport users that have different records and
history with the sponsor.184
G. FAA Order 5190.6E Airport Compliance Manual (Safety and Skydiving)
FAA Order 5190.6B contains relevant guidance to the issues under discussion in this case. The Order explains
that an airport sponsor can deny an individual or prospective aeronautical service provider the right to engage
in an on-airport aeronautical activity for reasons of safety and efficiency if the kind of activity (e.g., skydiving)
would adversely impact the safety and efficiency of another aeronautical activity at the airport, typically fixedwing operations.'85
Any safety concerns with an operator's activities must be brought to the attention of the FAA. However, the
airport sponsor may fmd that an aeronautical activity as a whole is inconsistent with the safety and efficiency of
the airport and may, therefore, not permit that activity at all, subject to concurrence by the FAA. The airport
sponsor may also prohibit access by an individual or individual service provider that has not complied with the
airport's minimum standards or operations rules for safe use of airport property. Any denial based on safety
must be based on reasonable evidence demonstrating that airport safety will be compromised if the operator or
individual is allowed to engage in the aeronautical activity. 186
FAA Order 5190.6B also states that the FAA is the fmal authority in determining what, in fact, constitutes a
compromise of safety. As such, an airport sponsor that is contemplating the denial of a proposed on-airport
aeronautical activity or access is encouraged to contact the local Airport District Office (ADO) or regional
airports division. Those offices will then seek assistance from FAA Flight Standards and Air Traffic to assess
the reasonableness of the proposed action because of safety and efficiency, and to determine whether unjust
discrimination or an exclusive rights violation results from the proposed restrictions.187 FAA Order 5190.6B
also states that any restriction, limitation, or ban on skydiving on the airport must be based on the grant
assurance that provides that the airport sponsor may prohibit or limit aeronautical use for the safe operation of
the airport (subject to FAA approval). The following questions present some of the reasonable factors the
sponsor can contemplate when developing minimum standards that apply to skydiving:
•
Will this activity present or create a safety hazard to the normal operations at the airport?'
•
Can skydiving operations be safely accommodated at the airport?
•
Can a drop zone be safely established using FAA AC-90-66A, 14 CFR Part 105, and USPA BSRs?
•
What experience requirements are needed for an on airport drop zone?
•
Has the relevant air traffic control facility been advised of the proposed parachute operation?
183 See Royal Air. inc. v. City of Shreveport through the Shreveport Airport Authority, FAA Docket No. 16-02-06, January 9, 2004, pages 28.
1"See Rick Aylati_on. Inc. v. Peninsula Airport Commission, FAA Docket No. 16-05-18, May 8, 2007, page 16, Rick Aviation Inc. v. Peninsula Airport CornmIssion 4
FAA Docket No. 16-05-18, November 6, 2007, page 9, and Springfield Night Academy v. City of Springfield., FAA Docket No. 16-10-03, August 25, 2011, page 15.
1" FAA Order 5190.6B, page 8-8.
1"FAA Order 5190.6B, page 8-8.
187 FAA Order 5190.68, pages ill, and 7-8.
188 The guidance also states that "If so, has the local airports district office (ADO) or the regional airports division been contacted and have those FAA offices
sought the assistance from FAA Flight Standards (AFS) and Air Traffic (ATO) to assess allegations that safe airport operations would be jeopardized?" FAA Order
5190.66, Appendix C, pages 39-40.
Page 23
•
Will an FAA airspace study be necessary?189
FAA Order 5190.6B discusses skydiving-related restrictions, including:
•
Limiting skydiving...to certain times...to avoid the times of highest operation by fixed-wing aircraft.
•
Banning skydiving...when the volume of fixed-wing traffic would create significant delays.
•
Limiting skydiving...operations to certain areas of the airfield and certain traffic patterns to avoid conflict
with fixed-wing patterns.190
H. 14 CFR Part 105
Parachute Operations
The FAA's primary responsibility with respect to skydiving is the protection of air traffic (aircraft) and persons
and property on the ground. This is principally accomplished through 14 CFR Part 105, promulgated under 49
U.S.C. 106(g), 40113-40114, 44701-44702, 44721.191
Part 105 was designed to protect the general public and other users of the national airspace from sport
parachuting activities. In addition, parachute operators and jump pilots must comply with all applicable
sections of Part 91 General Operating and Flight Rules.192 The following are relevant sections of 14 CFR Part
105:
§ 105.3 Definitions. Drop Zone means any pre-determined area upon which parachutists or objects
land after making an intentional parachute jump or drop. Other relevant definitions include (1)
parachute operation, parachutist, and tandem parachute operation.
§ 105.5 General. No person may conduct a parachute operation, and no pilot in command (PIC) of an
aircraft may allow a parachute operation to be conducted from an aircraft, if that operation creates a
hazard to air traffic or to persons or property on the surface.
§ 105.13 Radio Equipment and Use Requirements. No person may conduct a parachute operation,
and no PIC may allow a parachute operation to be conducted from that aircraft, in or into controlled
airspace unless the appropriate radio equipment and procedures are adhered to.
§ 105.21 Parachute Operations Over or Into a Congested Area or an Open Air Assembly of Persons.
No person may conduct a parachute operation, and no PIC may allow a parachute operation to be
conducted from that aircraft, over or into a congested area of a city, town, or settlement, or an openair assembly unless a Certificate of Authorization (COA) for that parachute operation has been
issued.193
§ 105.23 Parachute Operations Over or Onto Airports. No person may conduct a parachute
operation, and no PIC may allow a parachute operation to be conducted from that aircraft, over or
onto any airport unless—
• For airports with an operating control tower: (1) approval has been obtained from the
management of the airport to conduct parachute operations over or on that airport, (2)
approval from the ATCT to conduct parachute operations over or onto that airport, (3) radio
communications are maintained.
"'FAA Order 5190.6B, Appendix C, pages 39-40.
'90 FAA Order 5190.6B, pages 14-3, and Appendix C.
191 66 FR 23553, May 9, 2001, unless otherwise noted.
192 See 14 CFR § 91.307 Parachutes and parachuting...(b) Except in an emergency, no pilot in command may allow, and no person may conduct, a parachute
operation from an aircraft within the United States except in accordance with Part 105 of this chapter.
1" However, a parachutist may drift over a congested area or an open-air assembly of persons with a fully deployed and properly functioning parachute if that
parachutist is at a sufficient altitude to avoid creating a hazard to persons or property on the surface.
Page 24
•
For airports without an operating control tower, prior approval has been obtained from the
management of the airport to conduct parachute operations over or on that airport. It also
provides that a parachutist may drift over that airport...if the parachutist is at least 2,000 feet
above that airport's traffic pattern, and avoids creating a hazard to air traffic or to persons and
property on the ground.
§ 105.25 Parachute Operations in Designated Airspace. No person may conduct a parachute
operation, and no pilot in command of an aircraft may allow a parachute operation to be
conducted...within or into a Class A, B, C, D airspace area without...an air traffic control
authorization...within or into Class E or G airspace area unless the air traffic control facility having
jurisdiction over the airspace...is notified of the parachute operation no earlier than 24 hours before or
no later than 1 hour before the parachute operation begins.194
I. Advisory Circular 105-2 Sport Parachuting
Advisory Circular AC 105-2E Sport Parachuting provides parachuting safety suggestions and disseminates
information to assist in compliance with 14 CFR Part 105. It contains information on equipment, on-airport
parachuting operations, training, and other related procedures for FAA authorizations. The document covers
several aspects of skydiving on airports.
Parachute Landing Areas. The FAA recommends that parachute landing areas remain unobstructed, with
sufficient minimum radial distances to the nearest hazard.195
Stipulations for Landing at or Flying Over an Airport. Most parachute operations take place on airports.
Section 105.23 requires approval from airport management prior to skydiving onto any airport, but allows
a parachutist to drift over an airport without airport management approval as long as the he or she remains
at least 2,000 feet above that airport's traffic pattern.'"
Additional Aviation Activities. A large number of airports that accommodate parachute operations also
have different kinds of aviation activities taking place simultaneously, including flight training, helicopter
operations, transient traffic over or in the immediate vicinity of the airport during skydiving operations.'
Parachute Landings on Airports. Airports may designate suitable parachute landing areas. While
skydivers, at times there may be inadvertent landings in other grass or hard-surfaced areas, areas such as
runways, taxiways, clearways, and obstacle-free zones should not be designated as a primary landing area
and should be vacated as soon as practical. Flying a parachute over runways at low altitudes should be
avoided where possible....airport management works with parachute operators to develop standard
operating procedures for activities conducted by parachutists.'"
J. Advisory Circular AC 90-66A Recommended Standard Traffic Patterns and Practices For
Aeronautical Operations at Airports Without Operating Control Towers
Advisory Circular AC 90-66A provides additional guidance related to skydiving operations at an airport. It
states, in part that "all activities are normally conducted under a NOTAM noting the location, altitudes, and
"4 See
14 CFR Part 105.
AC 105-2, page 4.
196
AC 150-2, page 5.
197 AC 150-2, page 5. The FAA recommends that shared-facility airports have operating procedures so that each activity can operate safely by knowing the
procedures for each of the other activities. Representatives of each type of airport user group should develop procedures specific to their activity and share
these procedures with other user groups. It is the airport management's responsibility to ensure that airport policies and procedures are kept current. This can
be accomplished via regularly scheduled meetings with all airport user groups.
1" AC 150-2, page 5-6.
1"
Page 25
time or duration of jump operations. The Airport/Facility Directory (A/FD) lists airports where permanent drop
zones are located."199
Advisory Circular AC 90-66A also states that "when a drop zone has been established on an airport,
parachutists are expected to land within the drop zone. At airports that have not established drop zones,
parachutists should avoid landing on runways, taxiways, aprons, and their associated safety areas."200 Pilots
and parachutists should also be aware of the flight performance limitations of parachutes, and avoid any
potential conflicts between aircraft and skydivers 201
K. Development of Criteria for Parachute Landing Areas on Airports (DOT/FAA/AR-11/30)
This advisory document discusses the placement of parachute landing areas (PLA) (aka landing Area, DZ)202 at
airports and discusses related variables in developing a DZ. It also correlates the size of a PLA/DZ and
experience level. The document includes recommendations for operational procedures and practices.'
Skydiving landing hazards include telephone and power lines, towers, buildings, paved surfaces (ramps/aprons,
runways, and taxiways), aircraft, aircraft tie-down areas, NAVAIDs, airfield lighting, signage, open bodies of
water, highways, automobiles, and clusters of trees covering more than 3,000 square meters.204 The USPA
categorizes three minimum radial distances from hazards based on the parachutist's experience and type of
activity. These radial distances were used to calculate the minimum square footage for an on-airport PLA."
Airports should develop an LOA with the skydiving operator that describes specific operating requirements and
boundaries of the PLAs. This could include movements required by the skydiver operator on the airfield as
well as instructions and/or restrictions for crossing runways, operating vehicles on the airfield, radio
communications, and emergency procedures. The LOA should also address the procedures if a parachutist
lands outside the designated PLA or in a protected area of the runway. 206
When applicable, an additional LOA should be established between the skydiver operator and the nearest FAA
Air Traffic facility. The LOA should define the skydiving procedures and boundary of the jump zone airspace
as well as aircraft operating procedures. All on-airport PLAs must be marked to distinguish the PLA from the
surrounding area."'
L. FAA Order J07110.65V Air Traffic Control, Chapter 9, Section 7 Parachute Operations
FAA Air Traffic Organization (ATO) has guidance related to skydiving operations. FAA Order J07110.65
prescribes procedures and phraseology in providing air traffic control services. This order applies to all ATO
personnel and anyone using ATO directives.208 Section 7 of the Order specifically covers parachute
operations. It includes the following guidance directed at air traffic controllers (a) coordinate any pertinent
information prior to and at the end of each parachute jump or series of jumps; (b) authorize parachute
operations only within airspace designated for the jumping activity; (c) separate other aircraft from the
airspace authorized for the jumping activity; (d) impose, as necessary, any conditions and restrictions to
support the safety of the operation; (e) handle requests to conduct jump operations in or into Class D airspace
in which there is a functioning control tower as follows; and (f) handle notifications for operations in other
Class E airspace.209
1"
AC 90-66A, page 4.
AC 90-66A, page 4
201
AC 90-66A, page 4.
707 In some instances the FAA has used the term "Parachute Landing Area," but the FAA notes that the more widely used term for landing areas Is "parachute
drop zones," or 'drop zones' or simply 'PDZs' or "DZ." Accordingly, those terms will be used in this notice interchangeably, "DZ" predominantly.
2°3 Development of Criteria for Parachute Landing Areas on Airports (DOT/FAA/AR-11/30), page 6.
204 Development of Criteria for Parachute Landing Areas on Airports (DOT/FAA/AR-11/30), page 6 and 9.
205 Development of Criteria for Parachute Landing Areas on Airports (DOT/FAA/AR-11/30), pages 23.
2°6 Development of Criteria for Parachute Landing Areas on Airports (DOT/FAA/AR-11/30), pages 26.
207 Development of Criteria for Parachute Landing Areas on Airports, DOT/FAA/AR-11/30, page 26.
2°8 Section 1-1-1, FAA Order 7110.65V. It Includes contract towers.
209 FAA Order J07110.65V Air Traffic Control, Section 7 Parachute Operations, AprIl 3, 2014.
200
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M. FAA Order J07210.3, Chapter 4, Section 3 Letters of Agreement (LOA) and Chapter 18,
Section 4 Parachute Jump Operations
Section 4 of FAA Order J07210.3 Parachute Jump Operations also covers LOAs and parachute jump
operations. When operational/procedural needs require or when warranted by high-density air traffic or
constrained airspace, the Order discusses negotiating letters of agreement (LOAs) that designate areas of
ongoing jump activity as permanent jump sites. In discussing LOAs, FAA Order J07210.3 addresses many
aspects of safe skydiving operations including (a) the description and the location of the jump zones and the
conditions of use; (b) schedules; (c) jump altitudes; (d) communications; (e) notification procedures; (f)
control of vehicular traffic on airport movement areas, and (g) any other items pertinent to the needs of the
ATC system and the users.210 FAA Order J07210.3 also states that where ongoing jump sites are
established, NOTAM (Notice to Airmen) information must be submitted for publication in the A/FD. The
Order also requires ATC to keep the record of the jump operations in the facility files for 15 days.211
N. 14 CFR Part 139 Certification of Airports
The FAA has the statutory authority under 49 U.S.C. § 44706 to issue Airport Operating Certificates to airports
serving passenger-carrying operations of certain air carriers and establish minimum safety standards for the
operation of those airports. The FAA uses this authority to issue requirements for the certification and
operation of certain land airports through 14 CFR Part 139. Although 14 Part 139 is not a regulatory
requirement for general aviation airports, it provides reasonable safety guidance in many areas, which are
relevant to or assist with achieving and maintaining safe operations at any airport. For example, Part 139
includes guidance concerning self-inspections, paved areas, safety areas, traffic and wind direction indicators,
pedestrians and ground vehicles,' obstructions, public protection, protection of NAVAIDs, and airport
condition reporting.213
0. Airport Movement Safety and Vehicle or Pedestrian Deviations (VPD) Guidance
The FAA has responsibilities for identifying, analyzing, and tracking hazards which contribute to runway
incursion and excursion risk. ATO policy governing the identification of hazards and the analysis and
mitigation of risk in the National Airspace System (NAS)214 is documented in FAA Order 1000.37 ATO Safety
Management System. It includes the processes used to evaluate and ensure safety of the NAS, including
valuations, data tracking, and analysis. Runway Incursions are considered "safety events" that must be
analyzed in order to identify new hazards or risks and to assess existing safety controls. An ATCT facility
reports surface events as occurrence reports in CEDAR..215
Runway Safety classifies every event and makes sure appropriate data is captured for the official agency
runway incursion database. The responsibilities for investigation and analysis include: (a) Potential
Operational Incidents; (b) Potential Pilot Deviations (PD); (c) Potential Vehicle or Pedestrian Deviations
(VPD); 216 and (d) Runway Safety Group.217
210 FAA Order JO 7210.3Y Facility Operation and Administration, paragraph 4-3-1, and 18-4-1.
211 FAA Order JO 7210.3Y Facility Operation and Administration, and 18-4-1.
212 Pedestrians and Ground Vehicles (§ 139.329). This section covers, amongst others, limiting access to movement areas and safety areas, establish and
implement procedures for the safe and orderly access to and operation in movement areas and safety areas by pedestrians and ground vehicles, including
provisions identifying the consequences of noncompliance with the procedures by all persons, control of pedestrian and vehicles when an air traffic control tower
is and is not in operation, and track and keep records of any accidents or incidents in the movement areas and safety areas involving aircraft, a ground vehicle or
a pedestrian.
213 For example, 14 CFR § 139.227, 14 CFR § 139.329, and 14 CFR § 139.335.
214 The common network of U.S. airspace; air navigation facilities, equipment, and services; airports or landing areas; aeronautical charts, information, and
services; rules, regulations, and procedures; technical information; and manpower and material. Included are system components shared jointly with the
military. [FAA Order 7110.10].
Comprehensive Electronic Data Analysis and Reporting (CEDAR).
216 The FAA Office of Airports investigates surface events that are potential vehicle or pedestrian deviations, or in the case of events with mechanics taxiing
aircraft, by Flight Standards. Based on the results of the investigation, the Office of Airports may assign corrective actions to the airport involved. If risks or
215
Page 27
P. FAA Order 7050.1B Runway Safety Program
Runway safety is one of the FAA's highest safety priorities. FAA Order 7050.1B Runway Safety Program
prescribes the FAA Runway Safety Program (RSP) and establishes policy, assigns responsibility, and assigns
authority for ensuring compliance with this order within each organization of the FAA.218 The RSP is intended
to improve runway safety by decreasing the number and severity of runway incursions, runway excursions, and
other surface incidents.219
Q. Safety Management Systems (SMS) Guidance
FAA Order VS8000.369 Safety Management System Guidance provides guidance for implementation of a
common Safety Management System (SMS) within the FAA. This order furthers the practice of managing
safety by moving to a more process-oriented system safety approach with an emphasis on managing systems
that ensure risk management and safety assurance. This order applies to the FAA's Aviation Safety
Organization (AVS), Air Traffic Organization (ATO), and Office of Airports (ARP).22°
FAA Order 8040.4A Safety Risk Management Policy supports FAA Order 8000.369, and establishes
requirements for how to conduct Safety Risk Management (SRM) in the FAA. It formalizes the use and
communication of SRM across the FAA and describes the specific steps when performing SRM. The
objective of SRM is to provide supporting information for decision-makers by identifying hazards, analyzing
safety risk, assessing safety risk, and developing controls to reduce risk to an acceptable level. SRM
facilitates communication and coordination across FAA organizations for enhanced safety risk decision
making. It also establishes common terms and processes used to analyze, assess, and accept safety risk. The
design of this policy is to prescribe common SRM language and communication standards to be applied
throughout the FAA.221
FAA Order 5200.11 FAA Airports (ARP) Safety Management System provides a SMS framework as a
consistent means of assessing safety risks at airports. FAA Order 5200.11 is consistent with FAA Order
8000.369, and its principles are based on the ability to identify and address safety issues before they become
hazards and thus increase system safety. 222 A hazard is any existing or potential condition that can lead to
injury, illness, or death; damage to or loss of a system, equipment, or property; or damage to the environment
(environmental issues are not within the scope of the SMS). A hazard is a condition that might cause (is a
prerequisite to) an accident or incident.223
FAA SMS is used to assess, verify, and control risks, and safety risk management is integrated into applicable
processes. Appropriate risk controls or other risk management responses are developed and employed
operationally. Safety risk management provides for initial and continuing identification of hazards and the
analysis and assessment of risk. The FAA provides risk controls through activities such as the promulgation of
regulations, standards, orders, directives, advisory circulars (AC), and policies. The safety risk management
process (1) describes the system of interest, (2) identifies the hazards, (3) analyzes the risk, (4) assesses the risk,
and (5) controls the risk.224
hazards are identified that are under the control of the ATCT, the Office of Airports notifies the ATCT manager. If the airport investigator identifies a potential
system-wide safety concern, they must forward that information to the Office of Airport Safety and Standards and ATO through appropriate channels.
217 See AC 705016, Appendix C. Note: Runway Safety examines every surface event for potential hazards at both Service Area and national levels. This includes
examining surface event based on initial reports and the results of investigations conducted by the responsible agency organization, follow up actions if necessary
to mitigate hazards, and issue recommendations
FAA Order 7050.1B, cover page.
219 FAA Order 7050.16, cover page.
220 See FAA Order VS8000.369 Safety Management System Guidance (September 30, 2008), page 3. Also, on June 28, 1998, the FAA Administrator issued Order
8040.4 to establish FAA safety risk management policy. This policy requires all the Lines of Business (LOB) of the FAA to establish and implement a formal risk
21B
management program consistent with the LOB's role in the FAA.
221 FAA Order 8040.4A Safety Risk Management Policy, cover page and pages 3 and 5.
222 See FAA Order 5211 Airports (ARP) Safety Management System (August 30, 2010), pages 4-2 and 4-3.
223
See AC 150/5200-37 Introduction to Safety Management Systems (SMS) for Airport Operators, page 1.
224 See FAA Order 5200.11 FAA Airports (ARP) Safety Management System (August 30, 2010).
Page 28
FAA Advisory Circular (AC) No. 150/5200-37 Introduction to Safety Management Systems (SMS) for Airport
Operators (Feb. 28, 2007) introduces the concept of a safety management system for airport operators. The use
of SMS at airports contributes to safety by increasing the likelihood that airport operators will detect and
correct safety problems before those problems result in an aircraft accident or incident.225
FAA Systems Safety Handbook (SSH) was developed to support the application of system safety policies and
procedures. As the Federal agency with primary responsibility for civil aviation safety, the FAA develops and
applies safety techniques and procedures in a wide range of activities. Chapter 15 of the SSH Operational Risk
Management (ORM) is a decision-making tool to systematically help identify operational risks and benefits
and determine the best courses of action for any given situation. Risk management, as discussed in the
handbook is pre-emptive, rather than reactive. The approach is based on the philosophy that it is
irresponsible and wasteful to wait for an accident to happen, then figuring out how to prevent it from
happening again.226
ATO Safety Management System (SMS) Manual (v.4), in effect since on September 1, 2014 is a formalized
and proactive approach to system safety. It directly supports the mission of the FAA to provide the safest,
most efficient aerospace system in the world. ATO's SMS is an integrated collection of principles, policies,
processes, procedures, and programs used to identify, analyze, assess, manage, and monitor safety risk in the
provision of air traffic management and communication, navigation, and surveillance services.'
R. Other Relevant Guidance
FAA Order 8900.1 Flight Standards Information Management System contains surveillance procedures
conducted for FAA Flight Standards FAA inspectors when observing parachute operations. Sport parachute
surveillance usually involves aircraft, pilots, parachute riggers, owners, operators, aircraft mechanics, and
parachutists. This surveillance and reporting of sport parachute operations help determine compliance with the
current CFRs that are applicable to sport parachute operations.228 To aid in this function, FAA has developed
draft guidance to supplement the current language in Chapter 3, Section 5 FAA Order 8900.1 Risk Assessments
for Various Airport Operations. It addresses several activities including parachuting operation risk
assessments.' FAA Order 8900.1 also covers demonstrations or exhibition jumps over or into a congested
area. It considers satisfactory evidence of the experience, knowledge, and skill equivalent to that required by
the USPA. This guidance relates to 14 CFR Part 105, which was intended to protect the general public and
other users of the national airspace from sport parachuting activities. The competence of parachutists is
extremely important when evaluating the suitability of a landing site — type of landing area v. experience.230
FAASTeam is a FAA Flight Standards program designed to assist in improving the accident rate by
conveying safety principles and practices. It is one of the educational outreach arm of the FAA. Each of
the eight FAA Flight Standards regions now has a Regional FAASTeam Office dedicated to this unique
safety program and managed by the Regional FAASTeam Manager (RFM). Based on the makeup of the
aviation community in each region, the RFM has selected a group of FAASTeam Program Managers
(FPM) with specific aviation specialties and assigned them to geographic areas of responsibility within the
region. The FAAS Team uses system safety techniques to shift the safety culture. New risk management
225
FAA Advisory Circular (AC) No. 150/5200-37 Introduction to Safety Management Systems (SMS) for Airport Operators (Feb. 28, 2007), page i.
See FAA Systems Safety Handbook (SSH), December 30, 2000, Chapter 15, page 15-2.
27 ATO Safety Management System (SMS) Manual (v.4), page 1.
228 See FAA Order 8900.1, Chapter 3, Section 5 - Surveillance of Sport Parachute Activities.
228 The 'purpose of the assessment is to determine the risk level for a particular aviation activity at an airport. Airport sponsors should be reminded that, in all
cases, the FAA will make the final determination on the reasonableness of the sponsor's proposed restrictions. Therefore, the results of the risk assessment
conducted by the FAA team will be used to help the Regional Airports Division determine whether an activity can be safely accommodated at the airport. For
additional details, including details on the status of this guidance, contact AFS-830.
230 FAA Order 8900.1, Volume 3, Chapter 6, Section 1, Paragraph 3-150 Parachute Demonstrations. or D license (or equivalent), a minimum of 200 jumps, of
which 50 jumps were within the last 12 months to include 5 jumps within the previous 60 days on the same make and model canopy to be used for the
demonstration. Level II and stadium landing areas require a class D license with a PRO rating (or equivalent), and 50 jumps in the last 12 months, including 5
jumps In the previous 60 days.
228
Page 29
tools will be created for individual airmen. In addition, a product to deliver safety management system
tools to air groups is in the development process.'
VII. ANALYSIS
A. Preliminary Issues
1. Compliance with 14 CFR § 16.21(c)
Pursuant to 14 CFR § 16.21(c), SDMB certifies that it has made substantial and reasonable good faith efforts
to resolve the issues with the County and that "there is no reasonable prospect for practical, equitable, and
timely resolution of the dispute."' A review of the record substantiates this assertion. Therefore, the
Director finds that SDMB has met the requirements of 14 CFR § 16.21(c).
2. Respondent's Motion to Dismiss
In response to SDMB's Complaint, and pursuant to 14 CFR § 16.25(b)(i) and (ii), the County requests that
the FAA dismiss the Complaint,' because the "Complaint does not identify any specific federal law,
regulation, or obligation that [the County] has violated" and "therefore, at the most basic level, SDMB's
Complaint is subject to dismissal because it appears on its face to be outside the jurisdiction of the [FAA]."
The County adds that "SDMB's Complaint should be dismissed because on its face it does not state a claim
that warrants an investigation or further action by the FAA."234
The County argues that "Complaint SDMB presents a disjointed array of allegations, primarily on issues that
are governed exclusively by South Carolina law" and that "these allegations, which predominantly relate to
SDMB's occupancy of a hangar...and its use of other...facilities, are already being litigated in South
Carolina state courts and, more importantly, are beyond the FAA's Part 16 jurisdiction.""
Title 14 CFR § 16.25(b) states that a motion to dismiss shall be accompanied by a concise statement of the
reasons for seeking dismissal and that a respondent must show that the complaint should be dismissed, with
prejudice, if (i) it appears on its face to be outside the jurisdiction of the Administrator under the Acts listed
in § 16.1, or (ii) on its face it does not state a claim that warrants an investigation or further action.'
In describing how they were directly and substantially affected by alleged actions of the Respondent,
Complainant clearly alleges facts and makes legal arguments that fall under the FAA's 14 CFR Par 16
jurisdiction. Most of the disputed issues in this Complaint, including negative economic impact of the
county's actions,237 lease provisions, operational requirements, minimum commercial standards," and the
safety issues that are within the FAA's purview.. Finally, a review of the pleadings supports a structured
argument concerning the alleged grant assurance violations, which are clearly articulated and referenced.
The Director fmds that the Complainant has adequately stated claims under the grant assurances and 14 CFR
Part 16. Therefore, the Motion to Dismiss is denied.
3. General Limitations and Scope of the Part 16 Process and State Law Issues
In reviewing matters pertaining to a sponsor's compliance with its federal grant assurance agreements, the
Director does not replace or act on behalf of local law enforcement, civil courts, or other legal forums outside
https://www.faasafety.gov/about/mission.aspx. Also see Skydiving and Parachute Operations, P-8740-57 (1997), FAA Exhibit 1, Item 19.
233
235
FAA Exhibit 1, Item 3, page 1-2.
236 See 14 CFR Part 16.26 (b) (1) (i) and (ii).
237
FAA Exhibit 1, Item 1, Exhibit 1, page 112.
231
232
Page 30
the scope of the FAA's 14 CFR Part 16 purview.239 In dealing with airport compliance matters, negotiation is
important, because both the proponent of an aeronautical business and the airport sponsor have rights and
responsibilities to negotiate good business arrangements. The Part 16 process is not a substitute for
negotiation.24°
A proponent of a business at an airport has a responsibility to engage in negotiations regarding terms such as
location, standards, qualifications, and business issues, including rents and terms. Airport sponsors have the
proprietary right to demand that aeronautical business proposals include appropriate details, including
reasonable protection from risk. Similarly, airport sponsors may negotiate to protect themselves from
liability and litigation.241
As part of its Complaint, both parties make state law claims. For example, SDMB argues that the County
actions are "discriminatory and illegal manner that is contrary to...state law."242 In addition, SDMB's offer to
mediate in June 2014 was made in order to meet "ethical requirements relating to South Carolina state
law."243 Finally, SDMB takes the position that the County refused "to mediate within the bounds of South
Carolina Rules of Professional Conduct (SCRPC)...99244
The County also raises issues under state law. For example, the County argues that SDMB's claims "are
outside the FAA's jurisdiction"245 and that "negotiation or commercial litigation" resides "under applicable
state and local laws."' The County also argues "following these principles, the FAA typically does not
consider interpretation of lease terms to be within its Part 16 jurisdiction."247 The County adds, for example,
that "the issue of whether an eviction action is wrongful is a matter to be resolved under State Law,"248 that
the FAA does not "opine on matters related to an eviction proceeding as such action is outside the scope of
14 CFR Part 16," and that the "allegations in SDMB's Complaint relating to its state law claims are outside
the FAA's Part 16 jurisdiction and should be dismissed with prejudice."249 Finally, as part of its pleadings, the
County notes that "though SDMB attempted to enjoin the enforcement of the minimum standards at a recent
hearing in a South Carolina state court action, their arguments were rejected by the [state] Court."'
The Director does not opine on issues of state law nor is the FAA bound by state court opinions on issues
covered by the grant assurances or other federal obligations.251 While in some cases facts may be relevant,
(and some aspects are discussed below as appropriate), claims under state law are outside the FAA's
"'Skydive Sacramento v. City of Lincoln. California. Director's Determination, 19, FAA Docket No. 16-09-09 (March 4, 2011).
240 In PenotIscot Air Service v. Knox County Director's Determination, 24, FAA Docket No. 16-97-04 (September 25, 1997) the Director stated: "The purpose of the
grant assurances Is to protect the public interest in the operation of federally obligated airports. The purpose is not to provide alternative or supplemental rights
to those normally available to commercial tenants in disputes with their landlords, I.e. negotiation or commercial litigation under applicable state and local
laws...."
As stated In Jet Away v. Montrose, CO, FAA Docket No. 16-08-01,Director's Determination, 17 (July 2, 2009) p. 17, "One example of where an airport sponsor
may exercise its proprietary rights is to protect itself as a going concern in the face of litigation." See also, Kent J. Ashton, Jacqueline R. Ashton y. City of Concord .
NC FAA Docket No. 16-02-01, 27,Director's Determination (August 22, 2003) .
241
244 FAA Exhibit 1, Item 1, page3.
245 FAA Exhibit 1, Item 3, page 15(citing 14 CFR § 16.26).
246 FAA Exhibit 1, Item 3, page 16 (citing Penobscot Air Service, v_ Knox City,, FAA Docket No. 16-97-04, 24 (Sept. 25, 1997) (Director's Determination), affd,
242
248
Penobscot Air Serv. v. FAA, 164 F.3d 713 (1st Cir. 1999)).
FAA Exhibit 1, Item 3, page 16 (citing Roadhouse Aviation, LLC v. City of Tulsa & the Tulsa Airports Improvement Trus . FAA Docket No. 16-05-08, 20 (June 26,
2007) (Final Decision and Order); Long island Jet Center East. inc. v. County of Suffolk. New York. FAA Docket No. 16-04-05, 2005 (Jan. 21, 2005) (Director's
247
Determination)).
FAA Exhibit 1, Item 3, page 16 (citing Long Island Jet Center East, Inc., 2005 FAA Docket No. 16-04-05 (Jan. 21, 2005) (Director's
Determination) and Springfield Flight Acad. v. City of Springfield, FAA Docket No. 16-10-03, 29 (Aug. 25, 2011) (Director's Determination)).
748 FAA Exhibit 1, Item 3, page 16. The County also states that "SDMB's Complaint also includes many allegations related to matters governed by South Carolina
law, which appear in FP 3-5, 8-10, 16,19-20, 23, 26, 31, 33-34, 36-37, 40, 42, and 46. For the most part, these allegations relate to lease and Space Use Permit
negotiations and other issues related to SDMB's occupancy of a hangar at CRE...SDMB and [the County] have both filed state law actions addressing these
issues...As discussed infra § II, these allegations relate to claims wholly outside the FAA's jurisdiction and should be dismissed." FAA Exhibit 1, Item 3, page 7.
248
251 In Arapahoe County Public Airport Authority v. FAA, 242 F.3d 1213 (10th Cir. 2001), and American Airlines v. City of Dallas, 202 F.3d 788 (5th Cir. 2000), the
courts of appeals held that the pending or prior state court litigation did not bar the Federal agency from conducting its own proceeding and determining
whether an airport was complying with its obligations under Federal law. See FAA v. Naples Airport Authority, Florida Director's Determination, 26, FAA Docket
No. 16-01-05 (March 10, 2003).
Page 31
jurisdiction and are not used in support of a claim against the County for an alleged violation of any of its
federal obligations.
Although issues such as an eviction or actions leading to evictions (failure to adhere to a contract or
agreement), are typical contractual matters to be resolved under State Law, it does not supplant FAA's ability
to review the matter, which may include consideration of lease terms and provisions, and safety allegations,
within the scope of the applicable grant assurances. 252 Similarly, the argument by the County that its
minimum standards were somehow validated because they were accepted by a South Carolina state court
action, is also rejected since the FAA, not the state, ascertains compliance with the federal obligations.
Finally, the Director rejects arguments made by Complainant and the County discussing or alleging state law
irregularities, state law requirements (e.g., requirements of the South Carolina Administrative Procedure Act),
allegations of the County's legislative and judicial irregularities, and claims before the Horry County Court of
Common Pleas,' because those are outside FAA's jurisdiction.
4. Operator Minimum Standards for Skydiving Operators
Relevant to this case are the County's skydiving minimum standards, considered in late 2014 and enacted on
January 29, 2015. The following are key excerpts from the document:
...A commercial skydiving operator engages in the transportation of persons for skydiving, instruction in
skydiving, and rental and sales of skydiving equipment. Commercial skydiving is not permitted at the
airport except in a DZ254 approved by the FAA and the Director, and in strict compliance with these
Minimum Standards and laws, including without limitation 14 CFR Part 105 and a [LOA] among the
Operator, the County, and the applicable ATCT. The FAA and the County must determine that skydiving
will not present, or create, a safety hazard to the normal operations of aircraft arriving or departing the
airport before a DZ will be approved. Any operator engaged in a skydiving operation shall meet, amongst
others, the following standards:
•
Assigned area solely to store and maintain aircraft, skydiving equipment, offices, etc..;
•
Meet or exceed 14 CFR Part 105 and related FAA Advisory Circulars, as amended;
•
No operations permitted if they create a hazard to air traffic, persons, or property;
•
Operator shall enter into a LOA with the ATCT and the County;
•
If necessary or desirable by FAA or the County, the County may undertake a safety and efficiency
study to determine whether the Airport can safely accommodate skydiving operations without
adversely affecting the efficient operation of the Airport;
•
The County shall seek input from the FAA, and request its own analysis, before making any decision
on establishment of a new skydiving operation;
•
Operators operating shall monitor wind and other weather conditions as well as air traffic conditions
and ensure that, given the level of skill or licensure of the persons seeking to skydive, all skydivers
will be able to land safely within the designated DZ;
•
Operators shall maintain radio contact with the ATCT during its operating hours at all times;
252
See Platinum AviatiOn and Platinum Jet Center BMI v. Bloomington-Normal Airport Authority, Final Agency Decision, 18, FAA Docket No.16-06-09 (November
28, 2007).
254 See FAA Exhibit 1, Item 26, page 44.
Page 32
•
Skydivers shall not enter or cross any runway, taxiway or enter an active portion of the movement area
without approval of the ATCT, and the operator shall ensure that all skydivers, customers and staff, are
adequately instructed...;
•
The County [may impose] additional reasonable restrictions or conditions on commercial skydiving
operations...to ensure the safe...operation of the Airport and protection of persons from harm...[and]
operators shall comply fully and promptly with all such restrictions and conditions;
•
Operator shall provide currently FAA certificated commercial pilot with ratings adequate to fly the
aircraft owned or leased by the operator and a sufficient number of personnel to adequately and safely
carry out commercial skydiving services. It includes the requirement for the "operator shall provide,
aircraft properly configured and certificated for skydiving activities" and for the "operator shall
provide copies of all appropriate FAA certifications and approvals required to operate a commercial
skydiving activity;
•
Operator shall have on duty an adequately qualified safety officer at all times while skydiving
operations are taking place; and
•
Operator shall maintain insurance coverage and minimum limits as set forth in Attachment C, unless
such limits or coverage are superseded by order of the Director."255
While the FAA strongly encourages airport sponsors to develop and apply minimum standards, they are not
required to do so by law or the grant assurances. Furthermore, Advisory Circulars are guidance, and they are
not binding upon airport sponsors. In this Director's Determination, allegations of any failure to develop or
apply minimum standards will only be considered within the context of enforcing Grant Assurance 22,
Economic Nondiscrimination.256
B. Issue 1 - Whether the actions taken by County with respect to Complainant's skydiving
operations at CRE are in violation of Grant Assurance 22, Economic Nondiscrimination;
Grant Assurance 22, Economic Nondiscrimination states in part that the sponsor must "...make the airport
available as an airport for public use on reasonable terms and without unjust discrimination to all types,
kinds, and classes of aeronautical activities, including commercial aeronautical activities offering services to
the public..." In reviewing the allegations made by Complainant, the Director organized the claims under
Grant Assurance 22 as follows: (1) General Harassment Claims, (2) Unreasonableness or Unjust
Discrimination (General Claims), and (3) Unreasonableness or Unjust Discrimination (Safety).
1. General Harassment Claims
In its Complaint, SDMB claims that the County's actions constitute "harassment."257 SDMB claims that it
has "been continually harassed" by the County cannot be adjudicated as a single issue. Each claim must be
considered on its own. Evidence must be accompanied by an actual unreasonable denial of access for an
aeronautical activity or unjust discrimination."258
SDMB argues that the "harassment" by the County is manifested by (a) the inability to receive mail and
parcels at its business address during normal business hours, (b) having its secure hangar broken into by
County personnel, (c) having been cited to meet fire code compliance, (d) the County taking photos of its
facility and temporarily blocking (locating a pile of peat moss) three parking spaces used by SDMB,259 and
255
FAA Exhibit 1, Item 1, Item 8, pages 44-46. Also see FAA Exhibit 1, Item 26.
See Northern Air, Inc. v. County of Kent. Michigan Director's Determination, 17, FAA Docket 16-11-10 (March 28, 2013).
255 BMI Salvage Coro & Blueside Services v. Miami-Dade County Director's Determination , 16, FAA Docket No. 16-05-16 (July 25, 2006).
259 FAA Exhibit 1, Item 1, page 1. Also see FAA Exhibit 1, Item 3, pages 18-19
255
Page 33
(e) the County not providing temporary hangar space during airport/ramp rehabilitation.260 Each of these
allegations is discussed below.
a. Inability to Receive Mail
According to SDMB, at certain times, it has been unable to receive mail and parcels at its business address
during normal business hours.' This issue appears to have been caused by a delay between receipt of
County's correspondence and the role of the FBO accepting SDMB's mail requiring signature.262 This issue
does not rise to a level of compliance concerning the County's federal obligations. The record does not
demonstrate unjust discrimination or unreasonableness on the part of the County. Rather, it shows that on
March 20, 2014, the County issued a policy letter for tenant mail and parcel delivery for tenants at CRE.
This reasonably addressed the issue,263 and the Director rejects this claim.
b. SDMB's Hangar Broken Into
SDMB alleges is that its hangar was broken into by County personnel, without SDMB's knowledge or
permission. 264 SDMB states that the County "routinely entered Hangar 7 without SDMB permission for no
legitimate purpose forcing SDMB to completely re-inspect all of its parachutes and aircraft."265 However,
the record does not contain details on this alleged wrong-doing nor does it expand upon any compliance
implications. These allegations do not implicate the County's federal obligations and they are
unsubstantiated.
The Director notes that the Space Use Permit's Right of Entry section provides that the "County shall have
the right to enter the Space at any time for any reasonable purpose.13266 No "unreasonable" or discriminatory
purposes have been documented in the record. Based on the above, the Director fmds no violation based on
the Complainant's allegations of breaking in and entering.
c. Fire Code Violation
In October 2013, a local fire inspector informed SDMB that it needed to make certain electrical
repairs/modifications to its facilities to avoid a violation and fine. SDMB requested the County to correct the
electrical deficiencies, but eventually, SDMB had the repairs made. SDMB stated that due to the County's
failure to correct the electrical deficiencies, SDMB was issued a fine for the violations of $205.267 The
record does not substantiate the allegation that the local fire regulations were unreasonably applied to SDMB
or that they were applied in an unjustly discriminatory manner. As a result, the Director finds no violation of
Grant Assurance 22 related to the fire code violations described in the pleadings.
d. County Taking Photos of SDMB's Facilities and Interfering with SDMB's Parking Spaces
SDMB contends that the County took photographs of its facilities and located a pile of peat moss on three
parking spaces used by SDMB.268 SDMB implies that taking photographs was an action on the part of the
County taken without SDMB's knowledge or permission or/and somehow constitutes a wrong. Similarly,
locating a pile of peat moss in three of SDMB's parking area, possibly as part of airport construction, was
also described as a confrontational action, and yet no relevant details are provided other than alleged malice
by the County.
26° FAA Exhibit 1, Item 6, page 3-4.
262 See FAA Exhibit 1, Item 1, Exhibit 1, pages 109-110.
263 FAA Exhibit 1, Item 1, Exhibit 3, pages 34, and FAA Exhibit 1, item 5, page HCDA-000178.
266 FAA Exhibit 1, Item 5, attachment page HCDA-00005.
267
FAA Exhibit 1, Item 1, page 4, and Exhibit 2, pages 22-24.
268 FAA Exhibit 1, Item 1, pages 7, 9. Also see FAA Exhibit 1, Item 3, pages 18-19
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Neither action constitutes a compliance violation since the record does not substantiate unjust discrimination
or unreasonableness on the part of the County. Therefore, the Director finds no violations of Grant
Assurance 22.
e. Temoorary Hangar Space (Use of Hangar 1)
As part of its Complaint, SDMB argues that the County did not provide SDMB temporary hangar space
during airport/ramp rehabilitation at CRE in the summer and fall of 2013. 269 SDMB alleges "while all
other...tenants [were] accommodated with temporary hangar space, however, although suitable hangar space
[was] available for SDMB's aircraft, [the County] refused to allow SDMB to hangar its aircraft during
rehabilitation." SDMB adds that this "caused SDMB to lose its aircraft because the contract for the plane
required hangar storage when not flying."27° SDMB also adds that "on one hand [the County] has argued
that SDMB's continued occupancy of Hangar 7 will disrupt a planned ramp rehabilitation project but, on the
other hand, it refuses to consent to SDMB's assumption of the Hangar 1271 lease," because it would "disrupt
the ramp project or SDMB's parachute operations."272
In response, the County states "in the summer and fall of 2013, many tenants and airport operations had to be
temporarily relocated over the course of the ramp repairs...During Phase 1 of the project, which occurred in
the summer and fall of 2013, these temporary relocations occurred without incident. There is no reason why
such relocations now constitute discrimination or harassment simply because [the County] is advancing into
Phase 2 of the project [in 2014] ."273 The County explains that it "has never received a formal request to
sublease Hangar 1," and that in any event, "Hangar 1 [was] not an available alternative to Hangar 7."274 The
County provides a reasonable and plausible explanation concerning Hangar l's suitability,275 and this is well
within its authority to manage assets, services, agreements, and leases during construction.' It appears that
the County did not act unreasonably when it declined to grant a lease for Hangar 1 as a replacement for
Hangar 7.277
The Director notes that although the record contains e-mail communications on the temporary hangar space
between the County and SDMB, those same communications bring the on-going eviction proceedings into
the discussion. SDMB's Space Use Permit expired in January 2014, 278 and SDMB was not operating with a
valid agreement with the County.279 SDMB's claim - that the County must accommodate SDMB's requests,
is not persuasive, especially when SDMB's inability to obtain hangar space is not a violation of the County's
obligation to provide airport access. Grant Assurance 22 does not require the County to provide specific
hangars or hangar types.'
Finally, the alleged failure to accommodate took place a year ago. In addressing allegations of
noncompliance, the FAA will make a determination as to whether an airport sponsor is currently in
271 See Figure 2 for the location of Hangar 1.
2" See FAA Exhibit 1, Item 5, Exhibit A, pages HCDA-000130, and FAA Exhibit 1, Item 5, pages 14-15. Also see diagram in Exhibit B, page HCDA-000135.
276 See Thermco Aviation. Inc. v. County of Los Angeles, Los Angeles Board of Airport Commissioners, and Los Angeles World Airpor, Director's Determination,
19 and 22, FAA Docket No. 16-06-07 (June 21, 2007).
277 See FAA Exhibit 1, Item 6, page 11.
2" FAA Exhibit 1, Item 1, Exhibit 3, pages 56-57.
240 See Thermco Aviation Inc. and A-26 Company v. County of Los Angeles, LolAngales Board of Airport Commissioners, and Los Angeles World Airpqrts,
Director's Determination, 23,FAA Docket No. 16-06-07 (June 21, 2007). Also, in Thermco Aviation, Inc. and A-26 Company v. County of Los Angeles. Los Angeles
Board of Airport Commissioners. and Los Angeles World Airports, Final Agency Decision, 19, FAA Docket No. 16-06-07 (Dec. 17, 2007), the FAA stated that "the
grant assurances and federal obligations do not require that an airport sponsor recognize past occupancy as a preference for future occupancy. Nor do the
federal obligations require sponsors to adhere to the location preferences of current tenants and subtenants when planning for the future development of the
airport." (citing [See Santa Monica Airport Association, Krueger Aviation, Inc. and Santa Monica Air Center v. City of Santa Monica Final Agency Decision, FAA
Docket No. 16-99-21 (February 4, 2003).
260
270
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compliance with the applicable Federal obligations. The Director rejects SDMB's claim that the County's
actions concerning the temporary use of Hangar 1 violate Grant Assurance 22.
f. Other Issues
In addition to the issues discussed above, SDMB objects to other County's requirements, including the use of
vehicles at the airport, parking restrictions, and the restrictions on grilling and alcohol use.281 On the issue of
managing the use of vehicles at the airport and procedures or requirements for holding special events,282 the
Director finds that the County, as the airport sponsor has the discretion to implement rules for their
management, and the obligation to ensure those activities do not create safety hazards. The record does not
indicate that the County's requirements on the use of vehicles at the airport and requirements for planned
events were only applied to SDMB. On the issue of alcohol, there is no justification for SDMB to argue that
not permitting alcohol is contrary to the federal obligations since it is not an aeronautical activity, is an issue
of local control, and in addition, in connection with skydiving operations, its use is prohibited on safety
grounds.283
2. Unreasonableness or Unjust Discrimination (General Claims)
In its Complaint, SDMB alleges that several of the County's actions are unreasonable and unjustly
discriminatory. SDMB summarizes its position, stating that the County has organized "a well-orchestrated
continuous plan [including minimum standards] to remove a federally recognized aeronautical activity and
preclude it from legally operating." SDMB also argues that the County has cancelled a long-term lease,
denied SDMB's request to assume another hangar lease, only presented a lease no rational business could
agree to, and finally evicted SDMB, and that these are actions contrary to the County's federal obligations.284
The County rejects SDMB's allegations, and asserts that "SDMB has not met its burden of showing that it
requested similar terms and conditions as other similarly situated airport users and was denied for unjust
reasons," did not identify "any other similarly situated tenants at the airport, i.e., tenants who are making the
same or similar uses of the airport facilities" or identify "any other tenants have been offered different lease
terms or rates than SDMB."285 The County rejects "claims of unjust discrimination" and takes the position
that SDMB refuses "to abide by a few simple rules grounded in safety and efficiency, and the airport's
proprietary power, and applicable to all aeronautical users at the airport."' Finally, the County states that
"SDMB continues to occupy the hangar unlawfully following expiration of that permit" and the County
"has filed an ejectment action in South Carolina state court against SDMB and the magistrate judge has
ordered eviction. SDMB has appealed this order."'
The Director organized SDMB's allegations as follows:
(a) Inability to renegotiate a long-term lease, and eviction;
(b) Unreasonable conditions;
(c) Differing treatment of SDMB compared with other commercial tenants,288 and;
(d) Minimum standards.289
281 FAA Exhibit 1, Item 6, page 5-7. For example, see paragraphs No. 12, 16, 17, and 18. The Director notes that SDMB raises other instances where it claims
unjust discrimination or other possible violation of the County's federal obligations. Unless specifically discussed, the Director finds the following issues as not
rising to a level of compliance with the County's federal obligations in that the record concerning these issues demonstrates no unjust discrimination or
unreasonableness on the part of the County. The issues include: grilling, tenants walking v. driving to their aircraft, restricting FBO parking, etc.
282
See FAA Exhibit 1, Item 11, Exhibit A.
zee See, e.g., 14 CFR §105.7, 14 CFR §91.17.
285 FAA Exhibit 1, Item 3, pages 17-18. (citing Springfield Flight A cad. v. City_of Springfield, Director's Determination, 18, FAA Docket No. 16-10-03 (Aug. 25,
2011); Skydive Monroe. Inc. v. City of Monroe. Georgia, Director's Determination, 35 FAA Docket No. 16-06-02 Mar. 30, 2007); and Nat'I Airlift Support Coro, v.
Fremont City. Bd of Commis. Final ARencv Decision. 15, FAA Docket No. 16-98-18, (Sept. 20, 1999) )
Page 36
a. Inability to Reneaotiate a Lona-Term Lease, and Eviction
In its Complaint, SDMB claims that the County's actions have resulted in SDMB being unable to renegotiate
a written long-term lease.2" SDMB adds that the County cancelled its long-term lease [with the previous
airport operator], denied SDMB the ability to assume another hangar lease, and was only presented a lease
which no "rational business could agree to." SDMB also states that it was evicted.•"291
The County rejects SDMB's claims stating that "reasonable access under Grant Assurance 22 means for the
use of aeronautical facilities on the airport, not necessarily the ability to lease particular space [hangar] on the
airport."' The County adds that "where an airport continues to permit access by [the skydiving operator] to
its aeronautical facilities, including the runway, taxiways, and drop zone, [it] has not created an effective
prohibition of skydiving operations that would constitute a violation of [Grant Assurance 22]."293 Finally, the
County notes that SDMB refusal to enter into the offered Space Use Permit for Hangar 7 (after it expired)
caused SDMB to violate its Operating Permit, but even when the County sent SDMB a notice of termination,
it stated that "SDMB may continue to use the aeronautical facilities at CRE, including the [DZ] as a transient
operator."294
SDMB's arguments are not persuasive. As mentioned in the Background section, in August 2013, after the
County resumed control of the Airport, "all tenants were asked to sign a temporary Space Use Permit with a
six-month term, with the intent that long-term leases would thereafter be negotiated."2" That is not an
unreasonable action since the County's assumption of the airport from the previous airport operator
terminated all existing agreements.296
SDMB was among several commercial aviation tenants who executed these temporary permits in 2013.297
While on-airport operators may need ancillary space to conduct operations, however such services must not
necessarily be accommodated through a lease, on an aircraft hangar, or a specific hangar.298 The grant
assurances require reasonable accommodation.
The record shows that there was reasonable accommodation under the circumstances. On January 31, 2014,
the Space Use Permit under which SDMB had been operating expired, yet SDMB continues to occupy
the hangar.299 On April 7, 2014, months after the expiration, the County notified SDMB that eviction
proceedings would be initiated if SDMB did not accept the County's offer of a new Space Use Permit.30°
SDMB rejected the County's offer because SDMB disagreed with many of the terms. By this time, as the
record establishes, a series of safety incidents related SDMB's skydiving operations had already taken place.
As part of the offer for a new Space Use Permit, the County identified multiple instances of unsafe practices
and incidents by SDMB,301 all of which constituted violations of SDMB's existing (albeit expired) Space Use
Permit and its Operating Permit.302 Indeed, the Space Use Permit required SDMB to "fully [comply] with
292 FAA Exhibit 1, Item 3, page 17 (citing Skydive Monroe. Inc. v. City of Monroe, Georgia Director's Determination, 20, FAA Docket No. 16-06-02, (Mar. 30,
2007)).
FAA Exhibit 1, Item 3, page 17 (citing Skydive Monroe, Inc. v. City of Monroe. Georgia Director's Determination, 20, FAA Docket No. 16-06-02, (Mar. 30,
2007)).
2"FAA Exhibit 1, Item 5, page 9-10. These Space Use Permits were offered on temporary bases because South Carolina law requires counties to utilize a formal
'three-reading' process prior to conveying property rights through lease agreements.
2" See Skydive Monroe. Inc. v. City of Monroe. Georgia, Director's Determination, 10, FAA Docket No. 16-06-02 (March 30, 2007).
3" FAA Exhibit 1, Item 1, Exhibit 3, pages 2354-57.
3°2 FAA Exhibit 1, Item 3, page 12-13.
293
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all safety and security policies/directives as established by the Airport,"303 while the Operating Permit
required SDMB to "comply with . . . all [County's] directives..., which now exist or which may be
hereinafter be [sic] enacted or adopted."304
The record shows that despite these violations, the County offered reasonable terms to SDMB. Indeed, the
County stated that although it "[was] unwilling to offer SDMB a leasehold interest in the...hangar [Hangar
7] facility at this time," as an alternative, it was "willing to enter into a new, short-term Space Use Permit,
with the understanding that a violation of any terms contained in such Space Use Permit will result in SDMB
being required to vacate the premises..."305
In other words, the County opted to offer a permit and not a lease, which is not contrary to the County's
federal obligations when the denial of the lease is based on documented violations of previous arrangements,
including safety violations. The County's refusal to renew the existing lease, restricting further permitting,
and eventually, pursuing eviction, were not unreasonable or unjustly discriminatory. The grant assurances
requirement of reasonable access would not require SDMB to provide access to an operator who committed
numerous, documented violations of existing agreements.
The County and SDMB entered into a temporary Space Use Permit allowing SDMB to occupy Hangar 7
through January 31, 2014,306 but that after its expiration, SDMB refused to enter into a subsequent
agreement. SDMB continued its use of Hangar 7 and of the airport and facilities (including the DZ) even
though there was no agreement with the County and an eviction notice had been filed against the operator.307
As the record indicates SDMB continues to occupy this leasehold despite being responsible for multiple
safety incidents, many of which can be categorized as violations of the terms and conditions SDMB
agreed to in its first lease.
The record establishes that the County did not renew the existing lease and initiated the eviction proceedings
for cause. The County's actions were within the discretion and authority of the airport sponsor. Moreover,
not only does the record lack any evidence showing that the County has taken steps to prevent SDMB from
accessing the Airport, but in fact shows that the County offered a reasonable alternative despite SDMB's
record of non-compliance with terms and conditions of the previous lease.3" SDMB continues to operate at
CRE today.
The Director finds the County declined to enter into a lease with SDMB, in part based on their history of
lawsuits, Part 16 complaints, and threats of future litigation. Thus, the Director finds that the County is not
in violation of Grant Assurance 22 by refusing to renew or providing SDMB with a long term lease and in
pursuing eviction proceedings.
b. Unreasonable Conditions
SDMB argues that the County offered unreasonable conditions to continue occupation of its business at
CRE 309 According SDMB, it "received an unreasonable offer to continue occupation of its business in
exchange for 10-24% of its gross proceeds,"31° and the County maintained SDMB "would have to double its
liability of slip and fall policy coverage to $2,000,000 and pay $1,200 per month for Hangar 7...during the 6
month temporary period for a long-term lease."311
303 FAA Exhibit 1, Item 5, page HCDA-000001.
3°4 FAA Exhibit 1, Item 3, page 8.
3136 FAA Exhibit 1, Item 1, Exhibit 3, page 54-57.
"a FAA Exhibit 1, Item 1, Exhibit 3, pages 54-57.
305 FAA Exhibit 1, Item 1, page 1. Also see FAA Exhibit 1, Item 3, pages 18-19.
311 FAA Exhibit 1, Item 1, page 4, and Item 1, Exhibit 1, pages 14-15.
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In response, the County denies that its actions are contrary to its federal obligations,' and argues that
SDMB's rejection of "[the County's offer]," and refusal "to execute a lease...on more favorable terms than
those employed by comparable tenants does not qualify as a denial of access on reasonable terms without
unjust discrimination."313
A review of the record provides no evidence to substantiate the claim that the percentage of gross proceeds
(10-24%), the $1,200 monthly charge, or the $2 million in insurance are unreasonable or unjustly
discriminatory per se. There is no significant information discussing other rates and charges, or information
showing that the insurance requirement, were excessive, unobtainable, or applied in an unjustly
discriminatory manner.314
Attachment C of the Minimum Standards, which covers tenant's insurance requirements at CRE, shows that
the level of insurance imposed upon SDMB (e.g., aircraft liability, commercial general liability, and hangar
keepers liability) appears to be consistent and within reasonable limits when compared to that imposed on
other aeronautical service providers and activities.'
In that respect, it provides a basis from which to compare what was imposed upon SDMB to that imposed on
other commercial tenants. A review of the minimum standards shows no evidence that the relevant
conditions applicable to SDMB (skydiving) unjustly differ from other commercial tenants. In any event, on
April 7, 2014, the County offered to reduce the monthly lease percentage to 10%,316 therefore
accommodating SDMB's concern regarding this "unreasonable" condition imposed by the County.
Based on this, the County's action concerning Complainant, including rates and charge and insurance
requirements, are not reasonable, unjustly discriminatory, or contrary to Grant Assurance 22.
c.
Differing Treatment of SDMB Compared With Other Commercial Tenants
SDMB makes the general assertion that the County's "refusal treat SDMB similarly to comparably situated
airport tenants...constitutes prohibited discrimination,"317 and that it was "treated differently from other
commercial tenants."' In response, the County notes that "the only reference in the record to other tenants
can be found in correspondence from [the County], which states that SDMB is the only tenant at [CRE]
operating without either a space use permit or a lease," and that the County "offered SDMB the same terms as
have been offered to, and accepted by, other commercial aeronautical service providers at [CRE]..." Finally,
the County takes the position that SDMB's choice "to reject [the County's offer]," and refusal "to execute a
lease...on more favorable terms than those employed by comparable tenants does not qualify as a denial of
access on reasonable terms without unjust discrimination."319
SDMB failed to provide any details to support its claims, such as other similarly situated companies, what
conditions were offered or accepted, or what other entities at the airport have permits instead or leases. The
record contains no evidence that any other similarly situated tenant with a lease at CRE was either evicted or
otherwise challenged by the County in any way contrary to the way in which the County dealt with SDMB.
Further, the record does not provide evidence that other skydiving commercial service providers at CRE have
313 FAA Exhibit 1, Item 3, pages 17-18 (citing Nat'l Airlift Support Corp. v. Fremont City. Bd of Comm'rs, FAA Docket No. 16-98-18 at15.)
314 Local media have reported that another service provider, Huffnman Helicopters has a level of "5% of gross" (See FAA Exhibit 1, Item 16, January 5, 2015
article) but provides no more information, such as other rates, actual lease, from which to make a valid comparison.
315 FAA Exhibit 1, Item 6, Exhibit A, page 84. SDMB argues that the County "presented the Minimum Standards without any input from SDMB and imposed
$10,000,000.00 Comprehensive Public Liability and Property Damage Premises Policy for skydiving operations but only a $2,000,000.00 liability policy on student
pilot training flying clubs." FAA Exhibit 1, Item 9, page 8. However, the actual minimum standards do not support this assertion. See FAA Exhibit 1, Item 6,
Exhibit A, page 85.
315 FAA Exhibit 1, Item 3, pages 17-18. (citing Nat'I Airlift Support Corp. v. Fremont City. Bd of Comm'r , FAA Docket No. 16-98-18, at 15).
Page 39
been provided terms and conditions than those imposed upon SDMB. SDMB fails to identify specific
similarly situated tenants, preventing any comparison on which to establish unjust discrimination.
Even if the Complainant described another similarly situated tenant, any difference between any two leases
or permits is insufficient to establish a violation of Grant Assurance 22 on its own. Differences, had they
been provided, would depend on their justification. In this case, "similarly situated" would mean another
tenant with record of non-compliance with terms and conditions or a history of safety incidents and
violations such as the one SDMB has accumulated. The record contains no evidence of such a tenant.
Without evidence to support the allegations, SDMB's claims are unsupported. Therefore, the Director finds
that these actions by the County, are not contrary to Grant Assurance 22.
d. Minimum Standards
SDMB argues that the "minimum standards [did] not apply to any tenant with an existing lease... SDMB is
the only current occupant without a lease"' SDMB objects to the timing of the promulgation of the
minimum standards, in part because "while counsel for [the County] was arguing for dismissal of SDMB's
initial Part 16 Complaint due to SDMB's lack of good faith, [the County was] in the process of 'covertly'
drafting punitive and ultra vires minimum standards for presentation and enactment by [the County's]
Council."321
SDMB argues that the manner in which the County acted in adopting the minimum standards was per se
"discriminatory."' It adds that "the rules relating to skydiving were drafted...without any notice to SDMB,
public comment period, or efforts to develop 'safe' skydiving practices from any recognized sport
parachuting organization with expertise in skydiving operations."323 SDMB also voiced specific objections
to the minimum standards and noted that the "entire skydiving operation section is written to discourage
skydiving operations." Specifically, SDMB objected on many aspects of the minimum standards including
space use permit v. lease, insurance requirements, use of vehicles at the airport, requirements for planned
events, restrictions on alcohol use, enforcement provisions, and the requirement for a safety and efficiency
study.324
SDMB opposes the minimum standards because they are "additional restrictions beyond those articulated by
FAA...," and that the County "has been retroactively promulgating [them was] clearly tailored to legitimize
its prior accusations and unwritten policies..."325 in an effort to justify the allegations of rule and policy
violations. Finally, SDMB adds that although "MYR [Myrtle Beach International] would have separate
standards,326 the County "cannot treat geographically separate airports under its jurisdiction differently for no
legitimate purpose." SDMB adds "admittedly, CRE is not identical to MYR, HYW or 5J9, but having
materially different leases, rules relating to customers, food consumption, access, parking, and grilling...is
impermissible discrimination without substantial justification."'
The County rejects these allegations and states that the "adoption of minimum standards for all [CRE] airport
users does not constitute unjust discrimination under Grant Assurance 22, and instead" is "consistent with the
County's obligations under its Grant Assurances as part of operating CRE "in a safe and efficient manner."328
The County defends the adoption of minimum standards because it "is the responsibility [of the County to
322
323 FAA Exhibit 1, Item 11, pages 2, and 4-5.
327
32B
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enforce] adequate rules, regulations, or ordinances as are necessary to ensure the safe and efficient operation
of the airport."329
The County also recognizes that "such conditions must...be reasonable and not unjustly discriminatory...must
be relevant to the proposed activity, reasonably attainable, and uniformly applied." The County rejects
Complainant's claim that SDMB was not consulted or provided an opportunity to participate in the minimum
standards process and states that it has "implemented minimum standards at each of the airports it manages,
including CRE" and that in the case of CRE, these were based on the County Council's Ordinance No. 36-14,
adopted after the required three readings on May 20, 2014.33°
The County takes the position that it not only "enacted minimum standards for CRE that are uniformly
applicable to all users of that airport," but also that they comply with its grant assurances in a manner
consistent with "common practice[s] among municipalities that own more than one airport."'
Adopting minimum standards is a valid action on the part of the airport sponsor. A review of the minimum
standards indicates that they cover many aeronautical activities and services including FBO services, aircraft
maintenance, aircraft sales, aircraft rental, charter operations, and flight training. A review of the minimum
standards concerning skydiving operations shows that, as written, they are not contrary to the County's
federal obligations. The standards outlined by the County are generally consistent with FAA's guidance on
the matter. The provisions that implement a sound and proactive risk-based approach in managing safety of
operations at the CRE, are especially in line with FAA recommendations and guidance.
The County's is within its authority to promulgate minimum standards that address skydiving operations as
an aeronautical activity, references compliance with 14 CFR Part 105, require an LOA and adequate ATCT
coordination, defines a DZ, requires trained personnel and certifications, incorporates a safety and efficiency
study in the process, and reserves the ability to add safety-based restrictions.
A review of Section Six (H) of the minimum standards, entitled Skydiving Operator, is consistent with the
scope and detail of the sections covering other activities. The County's correspondence with SDMB clearly
states the County's interest in continuing skydiving operations.332 The record establishes that the County has
published minimum standards for CRE or other airport under its jurisdiction.333 SDMB's claim that the
County "has been retroactively promulgating minimum standards" is not persuasive nor is it per se a
violation of the grant assurances. There is a difference between breaking leases or agreements in order to
impose "new minimum standards" and instituting minimum standards to be applied prospectively.
Contrary to SDMB's position that the County "cannot treat geographically separate airports under its
jurisdiction differently for no legitimate purpose," the Director notes that the fact that SDMB itself
recognizes that "CRE is not identical to MYR, HYW or 5J9," undermines the argument.334 The FAA would
expect that minimum standards might vary from airport to airport, even within an airport system operated by
one sponsor. Much can vary across airports including types of leases, services, and levels of service, levels
of investment, geographic and layout limitations, etc.
Moreover, in light of the safety issues documented in the record, the County's actions relating to
establishing, updating, and enforcing minimum standards are not only justified, but necessary. As provided
in Grant Assurance 22, the County must retain the ability to impose such additional reasonable restrictions or
conditions on operations from time to time it may deem to be necessary in order to ensure the safe and
efficient operation of the Airport.
329
FAA Exhibit 1, Item 8, page 1, citing Royal Air.. Inc. v. City of Shreveport, Director's Determination, 12, FAA Docket No. 16-02-06 (January 9, 2004).
331 FAA Exhibit 1, Item 8, pages 2-3. The County cites Royal Air, Inc. v. Shreveport. Director's Determination, 6, FAA Docket No. 16-02-06 (Jan. 9, 2004).
332 FAA Exhibit 1, Item 1, Exhibit 3, page 57, and FAA Exhibit 1, Item 3, pages 1-2.
333 See FAA Exhibit 1, Item 6, page 5-9.
330
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Finally, concerning the manner in which the County acted in adopting the minimum standards, the Director
fmds no violation of the County's federal obligations. While Grant Assurance 22 allows the County to
establish "such reasonable, and not unjustly discriminatory, conditions to be met by all users of the airport as
may be necessary for the safe and efficient operation of the airport...,m it does not impose FAA overview
over the local or state process governing the adoption of such requirements.
3. Unreasonableness or Unjust Discrimination (Safety)
Under Grant Assurance 22(h) "the sponsor may establish such reasonable, and not unjustly discriminatory,
conditions to be met by all users of the airport as may be necessary for the safe and efficient operation of the
airport...." Under Grant Assurance 22 (i), "the sponsor may prohibit or limit any given type, kind or class of
aeronautical use of the airport if such action is necessary for the safe operation of the airport..."336 Both
subsections permit the sponsor to exercise control of the airport sufficient to preclude unsafe conditions or
activities as long as the sponsor honors obligations to provide access to the airport on reasonable and not
unjustly discriminatory terms and conditions.
In all cases involving restrictions on airport use imposed by airport owners for safety reasons, the FAA
makes the final determination on the reasonableness of such restrictions when those restrictions appear to
deny or limit access to, or use of, the airport."' When making 14 CFR Part 16 findings regarding matters of
aviation safety, the Director will rely on other offices within the FAA for their safety expertise and
experience."'
a. Overview of Skydiving Operations
Parachute jumping (or skydiving) operations, which the FAA defines as the activities performed for the
purpose of or in support of the descent parachutists (or skydivers) who jump from aircraft, is a segment of
general aviation. It is also a recognized aeronautical activity by the FAA. According to the USPA, there are
approximately 2.16 to 3 million jumps annually in the United States. While in the United States, skydiving is,
for the most part, a self-regulated sport, basic safety requirements are established by the USPA while federal
requirements are found in the Federal Aviation Regulations (FARs).
According to 14 CFR 119.1(e)(6), parachute operations conducted as nonstop flights within a 25-mile radius of
the departure airport are exempt from the rules pertaining to commercial operators and are allowed to operate
under 14 CFR Part 91. Additional parachute operations regulations are contained in 14 CFR Part 105
Parachute Operations.
While most of the regulations concern the aircraft, pilot and rules of flight (e.g. 14 CFR Part 91), 14 CFR Part
105 regulates when, and where jumps may be made, as well as requirements for parachute equipment and
packing. 14 CFR Part 105 is intended to assure the safety of those not involved in the sport, including persons
and property on the surface and other users of the airspace. The FAA also regulates certain aspects of
parachute rigging under 14 CFR Part 65, Subpart F Parachute Riggers.
In skydiving, the drop zone (DZ) or landing area is a designated area clear of obstacles, and is usually marked.
Some drop zones are located beneath complex airspace, and jump organizers will have a Letter of Agreement
(LOA) with the appropriate FAA air traffic control facility to address site-specific issues and concerns. Some
"'See Grant Assurance 22 (a) and (h).
"'Also see Chapter 14 Restrictions Based on Safety and Efficiency Procedures and Organization, FAA Order 5190.66 Airport Compliance Manual.
"'FAA Order 5190.6B, § 14.3 at 14-3. The Federal Aviation Act of 1958, as amended, 49 U.S.C., § 40101, et seq., assigns the FAA Administrator broad
responsibilities for the regulation of aviation safety. Pursuant to 49 U.S.C., § 47122, the FAA has a statutory mandate to ensure that airport owners comply with
their Federal grant assurances, which include the safe operation of the airport [emphasis added], and may issue orders to carry out Subchapter I on Airport
Improvement, sections 47101 — 47142.
3" See In the Matter of Compliance with Federal Obligations by the City of Santa Monica, California Director's Determination, 38, FAA Docket No. 16-02-08 (May
27, 2008).
Page 42
DZs are located on airport property, and require the airport's permission. Each day, before jumping begins, the
drop zone operator will contact the FAA Flight Service Station for the latest weather and winds aloft forecast.
The jump pilot files a Notice to Airmen (NOTAM) at least 1-hour before the first jump. NOTAMs help alert
other pilots about the jump. During jump operations, pilots follow procedures in 14 CFR Part 91 and 14 CFR
Part 105. The pilot will contact air traffic control a few minutes before the jump, advising of the jump altitude
and exit time. Air Traffic will advise of any other aircraft or unsafe conditions in the area. Once the jump pilot
ensures all jumpers have exited, he or she advises air traffic control and makes a descent to the airport.'
b. Skydiver's Information Manual (SIM) and Basic Safety Requirements (BSR)
The Skydiver's Information Manual (SIM) provides basic skydiving standards BSRs (Basic Safety
Requirements) and recommendations agreed upon by USPA members for the conduct of safe and enjoyable
skydiving.'" In 2011, and complementing the SIM, USPA published its Skydiving Aircraft Operations
Manual. The purpose of this manual is to provide drop zone operators, pilots, aviation support personnel,
skydivers and others who might be involved in aircraft operations with additional and clarifying procedures and
practices which supplement, but do not supplant, existing rules and guidelines.341
Although USPA is a voluntary membership association with no regulatory power, USPA can suspend or
revoke any USPA license, rating, award, appointment, or membership it issues. Compliance with the BSRs
contained is mandatory for participation in USPA programs. The BSRs represent the commonly accepted
standards for a reasonable level of safety. On the issue of drop zones, the SIM states that drop zone
requirements are as follows:
• Areas used for skydiving should be unobstructed, with the following minimum radial distances to the
nearest hazard (a) solo students and A-license holders -100 meters; (b) B- and C-license holders and
all tandem skydives - 50 meters; and (c) D-license holders - 2 meters.
• Hazards are defined as telephone and power lines, towers, buildings, open bodies of water, highways,
automobiles, and clusters of trees covering more than 3,000 square meters.
• Manned ground-to-air communications to be present on the DZ during skydiving operations."
c. SDMB Position on Safety
SDMB characterizes the County's actions, including attempts to restrict the landing area and the continued
practice of reporting authorized parachute operations (landings) as violations....under the 'sheepskin' of
`safety concerns' as "unreasonably restrictive and discriminatory as applied to an FAA recognized
aeronautical activity."' SDMB asserts that the County has imposed arbitrary and unreasonable restrictions
and requirements under the "pretext of safety," and thus interfering with SDMB's aeronautical activity —
skydiving.344
SDMB states that "from May 2012 to August 2013 ... and over 2,500 parachute jumps, SDMB received no
complaints from FAA, [the ATCT], or [the County],"345 but that "from August 2013, to date (the period
since [the County] has resumed control of CRE), SDMB has received repeated complaints and been
FAA Exhibit 1, Item 19, Skydiving, and Parachute Operations — P-8740-57.
See FAA Exhibit 1, Item 24B. In 2011, USPA published its Skydiving Aircraft Operations Manual. The purpose of this manual is to provide drop zone operators,
pilots, aviation support personnel, skydivers and others who might be involved in aircraft operations with the additional and clarifying procedures and practices
which supplement, but do not supplant, existing rules and guidelines. It can be found at
http://www.uspa.org/Portals/O/Downloads/GM_USPAAircraftManual.pdf.
342 FAA Exhibit 1, Item 24B, 2014-2015 Skydiver's Information Manual, Section 2, pages 7-8.
3" FAA Exhibit 1, Item 1, page 1. Also see FAA Exhibit 1, Item 3, pages 18-19
3" See
340
Page 43
subjected to other intimidation attempts." SDMB further states that the County and the ATCT have a
"partnership" that initiated policing "unusual" airport activity and refereeing the boundaries of SDMB' s
primary [DZ]," and they "are working together to report and enforce subjective unusual incidents." 346
Complainant believes that it "became the victim of a targeted plan to be removed from CRE by [the
County] ..."347
As part of its defense, SDMB states that pursuant to its Operating Permit, it was "permitted to land
anywhere within 5 (five) miles of the airport, if necessary."348 SDMB goes further and states "a skydiver
landing on a runway is not a 'pedestrian' as intended in Part 139 or other FAA regulations." SDMB cites
AC 105-2E, 116(c)(2) Sport Parachuting, which states in relevant part "while skydivers attempt to land in
such areas, at times there may be inadvertent landings in other grass or hard-surfaced areas. This could
include landings on runways, taxiways, and other hard-surfaced areas.
Areas such as runways, taxiways, clearways, and Obstacle Free Zones (OFZ) are not prohibited areas but
should not be designated as primary landing area and should be vacated as soon as practical. Flying a
parachute over runways at low altitudes should be avoided where possible..."349 Moreover, SDMB denies
knowing about the existing Letter of Agreement (LOA) between the ATCT and the County relating to active
movement areas, and argues that the County cited "multiple violations of non-existent rules and
regulations," and created "a new unpublished reporting system tracking parachute landings targeted for
SDMB and its clients."350
Finally, SDMB objects to the mechanics of this reporting system itself. SDMB argues that "under the
direction of [the County], [the ATCT] has initiated a reporting process whereby conduct in compliance with
14 CFR Part 105 is styled as 'unsafe' and in violation of Part 139 resulting in the unnecessary expenditure
of resources of all concerned parties."351 SDMB also states that beginning May 2014, the County "began
recording Unusual Incident Reports (UIR) and directed [the ATCT]... to file "Mandatory Occurrence
Reports" (MORs) with FAA..."352 and the "overwhelming bulk of the UlRs are against SDMB. Only two
UlRs produced by [the County] are unrelated to SDMB."353
d. The County's Position Concerning Safety
The County responds that it "has properly balanced its obligations... under Grant Assurance 22...to
maintain [CRE's] movement areas in a safe and serviceable condition." The County adds that it followed
"FAA protocols for safety risk management [SMS], and is properly tracking safety incidents in order to
develop means to mitigate the hazards they present."354 The County takes the position that its "conduct falls
well within the bounds of permissible regulation under Grant Assurance 22..." and that SDMB's "objection
to the reporting protocol [the County] and the [ATCT] have implemented to document safety hazards,
including vehicle and pedestrian incursions on active runways and taxiways, and...restrictions on its landing
zone" are unwarranted.355 The County rejects that these actions "are somehow discriminatory."356
The County asserts that since at least February 2014, SDMB has known of the LOA, and that in fact,
"upon review of the LOA and this regulation," SDMB stated that "this provision was reasonable and
agreed to abide by it...to contact the [ATCT] before it or any of its skydivers cross active runways or
349 FAA Exhibit 1, Item 9, page 8-9 (and footnotes).
36° FAA Exhibit 1, Item 6, page 5.
"1FAA Exhibit 1, Item 1, pages 1-2.
352 FAA Exhibit 1, Item 9, page 8-9 (and footnotes).
353 FAA Exhibit 1, Item 9, page 8-9 (and footnotes
Page 44
taxiways." However, the County continues, "in the following months, SDMB's skydivers and personnel
continued to cross active runways and taxiways, either on foot or in golf carts, without first asking the
[ATCT's] permission. This uncontrolled movement creates a significant safety risk to other
aeronautical users at CRE..."357
The County defends its actions to "mitigate the safety hazard created each time one of these vehicle or
pedestrian incursions occurred," and that it "developed a standard report form to track such deviations,
along with all other safety hazards at CRE." The County adds that the ATCT and County staff report "safety
incidents involving any aeronautical user" at CRE.358
The County disagrees with SDMB's objections to the ground communications and documentation protocols
for safe skydiving operations at the airport's DZ. The County notes that SDMB's position is contradicted
"by the documents that SDMB attaches to its Complaint, which clearly state the exact location of SDMB's
proper [DZ]" and that safety is compromised by "the high number of 'inadvertent' landings outside the [DZ]
by SDMB skydivers..."359
The County concludes that "neither the documentation protocol nor the landing zone restrictions violate [the
County's] Federal Grant Obligations," and adds that it is "expressly authorized" under Grant Assurance
22(h) to establish "reasonable...conditions to be met by all users of the airport as may be necessary for the
safe...operation of the airport." The County supports this position by stating that such conditions are
contained in the LOAs, "which requires pedestrians and vehicles to contact the [ATCT] before crossing an
active runway or taxiway and potentially causing an accident with aircraft using that runway or taxiway."36°
e. Safety of Skydiving Operations at CRE
Before analyzing the safety allegations, the Director finds that it is necessary to review the record in order to
ascertain the nature, scope and detail, frequency, and severity of the safety incidents involving skydiving at
CRE. It is a common and expected practice for FAA to collect and analyze safety data on safety events to
prevent their recurrence. Data collection and analysis is also used to support a more proactive approach to
managing risk.
In line with safety management methodologies, FAA analyzes data proactively to support a risk-based
approach to safety oversight. Risk management is pre-emptive, rather than reactive. The approach is based
on the philosophy that it is irresponsible and wasteful to wait for an accident to happen, then figuring out
how to prevent it from happening again. As part of the review of this case, numerous safety concerns
(safety incidents) have been identified with regard to SDMB's skydiving operations at the Airport. These
safety incidents are documented in the pleadings submitted by the parties and have been identified as part of
FAA inquiries.
The safety of skydiving operations at CRE are represented in terms of skydiving-related safety incidents in
the form of VPDs, MORs, and UlRs [Vehicle Pedestrian Deviations (by FAA), Major Occurrence Reports
(by FAA), Unusual Incident Reports (by County)], and entries in the CRE ATCT skydiving log.361 All of
these are valid safety management metrics as data collection methodologies. The table below combines the
data.
Exhibit 1, Item 3, page 3.
3" FAA Exhibit 1, Item 3, page 3-4.
361 In this analysis, the Director combined all of these events as safety incidents: Vehicle Pedestrian Deviations (FAA), Major Occurrence Reports (FAA), and
Unusual Incident Reports (County). Occurrence reports are defined and required by FAA JO Order 7210.632, Air Traffic Organization Occurrence Reporting.
Occurrence reports are filed In the Comprehensive Electronic Data Analysis and Reporting Tool (CEDAR) and are the vehicle by which FAA Office of Runway Safety
receives reports of surface events. The ATCT skydiving log is incorporated in FAA Exhibit 1, Item 21.
3
3" FAA
Page 45
Table 1— Skydiving Safety Incidents at CRE (March 2013 — September 2015)
#
Report
1.
Details
Date
March 29, 2013
Skydivers
Involved
Two skydivers landed outside the DZ, west of landing zone and east of taxiway A.362
2
2
2.
May 18,2013
A skydiver landed between runway and taxiway A, while another crossed the taxiway without
ATC approval.363
3.
May 22, 2013
A skydiver landed between taxiway A and runway 23. Picked up by FB0.364
1
4.
May 25, 2013
A skydiver landed approximately 200 feet to the left ,of runway 23 approach lights.365
1
5.
May 27, 2013
A skydiver landed on taxiway A.366
1
A skydiver landed between taxiway A and runway 23. Another landed on the southwest side
of the airport.367
2
6.
July 5, 2013
7.
July 17, 2013
A skydiver had a cut away and landed in neighborhood or...golf course.3"
1
8.
July 19, 2013
Two skydivers landed west of runway 23 and abeam the ATCT. 369
2
9.
September 3,2013
SDMB acknowledged that one of its employees was not properly trained, which resulted in
an off field landing.37°
1
10.
September 28, 2013
Eight (8) out of 10 skydivers landed on the beach, not the airport.371
8
11.
October 15, 2013
ATCT manager reported that skydivers "walked across taxiway B, and then into the ramp."377
1
12.
October 19, 2013
A skydiver landed at Barefoot golf course pass Highway 31.373
1
13.
October 19, 2013
Night jump, but skydivers had no lights as per FARs.374
1
14.
October 20, 2013
A skydiver landed on taxiway B and was injured.375
1
15.
October 20, 2013
Night jump, but skydivers had no lights as per FARs.376
1
October 21, 2013
The ATCT reported to "uncertified" night jumps with an off-site landing requiring medical
assistance.377
2
17.
October 27, 2013
A skydiver landed on the taxiway adjacent to the DZ and was evacuated to the hospita1.378
1
18.
November 2, 2013
A skydiver missed the DZ and crossed runway at mid-field.379
1
19.
November 10, 2013
A skydiver walked across the runway.38°
1
16.
20.
November 13, 2013
21.
November 17, 2013
An incursion onto the active runway occurred when a jumper who missed the DZ walked
across the runway.381
A skydiver crossed taxiway B without approval.382
22.
December 21, 2013
Two skydivers landed by Highway 31, while 6 landed northwest of runway, plus a cut away
chute.383
23.
December 23, 2013
Out of 14 jumpers, 11 landed well outside the DZ, landing on various parts of the runway,
taxiway, and Highway 31.384
3" FAA Exhibit 1, Item 1, Exhibit 1, page 12.
362
363
Page 46
1
1
8
11
January 19, 2014
No notification of first jump. 385
1
25.
January20, 2014
The ATCT reported that out of 10 jumpers, 4 ended up well outside the DZ, with jumpers
landing on various parts of the runway, taxiway, and one at the Barefoot golf course.386
5
26.
January 24, 2014
Three skydivers landed way west of the I ntracoastal Waterway (ICW).397
3
27.
January 26, 2014
A golf cart entered taxiway C and A to retrieve skydiver that landed on taxiway A.388
1
28.
February 1, 2014
An FAA Airport Certification Safety Inspector notified the County that the FAA had received
"another Vehicle/Pedestrian incursion report (VPS) for CRE." 389
1
29.
March 9, 2014
One parachute malfunctioned and landed near Highway 17 and 30th Ave.390
1
24.
391
30.
March 15, 2014
A skydiver landed on the tarmac just east of taxiway C/B.
31.
March 15, 2014
A skydiver landed by the windsock and another landed near Highway 31.392
2
32.
March 22, 2014
A parachute malfunctioned and skydiver landed 1 mile east. Another was injured.393
2
33.
April 5, 2014
34.
April 12, 2014
No 2 minutes notification. 395
1
35.
April 24, 2014
A skydiver landed within 5 feet of a business jet and fuel truck and 15 ft. from the FBO
building.396
1
36.
May10, 2014
Three skydivers landed in between runway 23 and taxiway A, then crossed taxiway A without
clearance.397
3
37.
May10, 2014
Two skydivers landed on the other side of the runway while another landed far northeastern
field area.398
3
38.
May 14,2014
A skydiver landed in the drainage ditch just right in front of an aircraft (N555BV) on taxiway
B.394
1
1
39.
May 16, 2014
Three skydivers landed outside the DZ, one in front of the ATCT, and two abeam of Runway 5
threshold.399
Two skydivers landed outside the DZ north of the approach for runway 5.400
40.
May 16, 2014
Two skydivers landed well outside the DZ west of runway 5/23.401
2
41.
May 18, 2014
2
42.
May 22,2014
A skydiver landed right in front of the ATCT.402
Three skydivers landed outside the DZ.403 One landed on taxiway A and ran back ran the
43.
May 23, 2014
A skydiver landed on a taxiway and ran back to the DZ without contacting the ATCT.406
1
44.
May24, 2014
A skydiver landed on the west side of runway 23 then crossed the runway and taxiway A on
foot without clearance from the ATCT.406
1
45.
May24, 2014
A skydiver landed on the west of runway 23 then crossed the runway on foot and returned
to their facility via a golf cart that entered a taxiway without ATCT control clearance. 407
1
46.
May24, 2014
One skydiver landed between taxiway A and runway 23 and one landed on the west side of
runway 23 abeam the ATCT. 408
2
47.
June 7, 2014
A skydiver landed on the northwest side of runway 23.4°9
1
ramp 404
FAA Exhibit 1, Item 1, Exhibit 3, page 55.
387 FAA Exhibit 1, item 21.
399 FAA Exhibit 1, Item 15. Also see FAA Exhibit 1, Item 21.
3" FAA Exhibit 1, Item 1, Exhibit 1, page 138.
394 FAA Exhibit 1, Item 21. The pilot's report on this incident in contained in FAA Exhibit 1, item 5, page HCDA-000176.
396 FAA Exhibit 1, Item 8, page 4-6. Also see witness report, FAA Exhibit 1, Item 5, page HCDA-000149.
4°° FAA Exhibit 1, Item 8, page 4-6.
4°' FAA Exhibit 1, Item 8, page 4-6.
'IN FAA Exhibit 1, Item 21.
'4° FAA Exhibit 1, Item 8, page 4-6.
4°' FAA Exhibit 1, Item 15.
365
368
Page 47
3
2
3
June 15, 2014
A skydiver landed on the west side of the runway, abeam the ATCT and another landed
between taxiway A and the runway south of taxiway D.41°
49.
June 20, 2014
A skydiver landed between taxiway A and the runway between taxiways C and D.411
1
50.
June 22, 2014,
A skydiver landed on top of a fuel tank.412
1
51.
June 22, 2014
Two skydivers landed outside the designated landing zone, between taxiways T and C and
the ramp.413
1
52.
June 29, 2014
An airport employee reported that a skydiver miss the mark north of the fuel farm.414
2
48.
2
53.
July 4, 2014
One skydiver landed on the other side of the runway, west of the ASOS.415
1
54.
July 5, 2014
A skydiver landed on the other side of the runway by the VOR. 416
1
55.
July 10, 2014
A skydiver landed next to sewage plant and brought back by a city worker.417
1
56.
Jul y 19, 2014
Two skydivers landed in the grass on the west side of the runway north east of runway 23's
numbers.418
2
57.
July 20, 2014
One skydiver landed between taxiway A and the runway.419
1
58.
July 24, 2014
A skydiver landed close to the runway approach end causing helicopter to initiate a goaround.42° ATCT referred to this incident as a near collision.421
1
59.
July 26, 2014
Three skydivers landed outside the DZ in the non-movement area while another landed
between a taxiway and a runway.422
4
60.
July 27, 2014
A skydiver landed between taxiway A and runway, northeast of taxiway
1
0.423
Several skydivers landed in the grass on the other side of the ramp and were picked up by a
golf cart which drove on the taxiway to reach them.424
2
61.
August 8, 2014
62.
August 16, 2014
One skydiver landed in the grass on the west side of the runway abeam the numbers. 425
1
63.
August 27, 2014
Seven skydivers landed outside the DZ including one in a neighborhood east of the Airport,
and one on the public road adjacent to airport property.426
7
64.
Au gust 31, 2014
65.
September 6, 2014
One skydiver landed near left edge of runway 23, northeast of taxiway C with JUMP1 aircraft
on short final.427
One cut away resulted in the skydiver landing between the VOR and the windsock. 428
1
1
1
66.
September 13, 2014
One skydiver landed between taxiway A and the runway.429
67.
September 28, 2014
A skydiver landed on taxiway A near runway 23 run-up pad.43°
1
68.
November 9, 2014
Several skydivers landed outside the DZ nearly missing the moving blades of a military
helicopter preparing to take-off.431
2
412 FAA Exhibit 1, Item 8, page 4-6. SDMB rejects several of these reports. For example, in its Replay, SDMB states that "To ensure no harm to airport property
occurred, SDMB self-reported a parachutist landing near a fuel farm...as the parachutist came in contact with the fuel farm. [County] employees then inspected
the tank and reported no property damage. No physical injury to person or SDMB property took place. SDMB maintains that no landing near a fuel truck
occurred, let alone a moving truck. Had this actually taken place, physical injury to the skydiver would have occurred and SDMB would have direct knowledge of
this event. Highway 31 is a busy four to six lane divided highway with posted speeds of 60-70 m.p.h. Had a skydiver landed as [the County] has represented, a
serious injury would have occurred resulting in multiple official reports in addition to mass media reports. SDMB has no knowledge of any skydiver landing in this
vicinity or on Highway 31 itself. [The County] has not produced any evidence that this occurred." FAA Exhibit 1, Item 6, page 4 (footnotes). Also see FAA Exhibit
1, Item 21.
413 FAA Exhibit 1, Item 8, page 4-6. Also see FAA Exhibit 1, Item 21.
414 FAA Exhibit 1, Item 5, page HCDA-000185.
41' FAA Exhibit 1, Item 21.
409
410
Page 48
A skydiver landed outside DZ, walked onto taxiway B then onto ramp without
communicating with air traffic control.432
1
March 15, 2015
A skydiver landed on the golf course. ATCT received call.433
1
71.
March 28,2015
A skydiver landed outside the DZ on taxiway A between taxiway C and taxiway D without
clearance from the ATCT.434
1
72.
March 29, 2015
ATCT reported a skydiving-related MOR with the FAA.435
1
73.
April 1, 2015,
1
74.
April 3, 2015
1
75.
April 5, 2015
ATCT reported 4 skydiving-related MORs with the FAA.436
4
76.
April 13, 2015
A skydiver reported that he landed outside the DZ and was injured.439
1
77.
April 21, 2015
A skydiver landed in the AOA and crossed the runway. SDMBN's aircraft was landing at the
time.
1
78.
April 28, 2015
1
79.
May 2, 2015
ATCT reported a skydiving-related MORs with the FAA.442
1
80.
May 2, 2015
ATCT reported a skydiving-related MORs with the FAA.443
1
81.
May 3, 2015
1
82.
May 4, 2015
1
83.
May 16, 2015
One skydiver landed between the runway and taxiway A near the approach end of runway
23 and outside of the DZ,446 another landed within 15 feet east of runway 23, approximately
1,500 feet from landing threshold. This is outside DZ and inside runway safety area.447
2
84.
May 16, 2015
1
85.
May 17, 2015
One skydiver landed next to the VOR and outside of the DZ.449
1
86.
May 31, 2015
Eleven (11) parachutists jumped with SDMB and eight (8) of the parachutists landed on the
beach. The other three (3) landed in the designated landing zone at CRE. Public safety was
informed of this incident 450
8
87.
June 7, 2015
1
88.
June 8, 2015
Two parachutists jumping with SDMB missed the DZ. One jumper landed between taxiways
C and T adjacent to the ramp and was able to exit onto the ramp without incident. The other
landed west of the intercostal near the rock mound along Highway 31.452
2
89.
June 16, 2015
One skydiver landed on taxiway A between taxiway C and D and exited to the grass towards
the DZ.453
1
90.
June 20, 2015
ATCT reported two skydiving-related MORs with the FAA.454 They landed outside the DZ.
One came to rest on west side of runway while the other remained on west side of airfield
until retrieved by SDMB.455
2
91.
July 4, 2015
A skydiver landed outside the DZ on taxiway A (VPD) without ATCT authorization.455
1
69.
March 15, 2015
70.
432
435
4"FAA Exhibit 1, Item 21.
"e FAA Exhibit 1, Item 21.
443
4"FAA Exhibit 1, Item 21.
Page 49
92.
July 5, 2015
A skydiver landed beside the intersection of taxiway C and A. The skydiver remained until
permission was granted to retrieve him.457
1
93.
July 5, 2015
A skydiver landed beside the intersection of taxiway C and A. The skydiver remained until
permission was granted to retrieve him.458
3
94.
July 6, 2015
A skydiver landed on the grass between Taxiway A and the runway. After receiving
permission from the ATCT to move out of the active area, the skydiver gathered his chute
and walked to the ramp.459
1
95.
July 19, 2015
ATCT reported a skydiving-related MOR to the FAA.46°
1
96.
July 25, 2015
Three skydivers jumping with SDMB landed outside the DZ. 2 landed southwest of the
Tower, just east of taxiway A, while the other landed in the area between taxiways A, B, and
C.461
3
97 .
July 25,2015
Three skydivers jumping with SDMB landed outside the DZ. 2 landed abeam Runway 23
approach lights, east of the runway. 1 landed between taxiways T and C.462
3
98.
July 25, 2015
Two skydivers jumping with SDMB landed outside the DZ. One touched down on active
taxiway A, while the other landed near runway 23 approach lighting system.
2
99.
Jul y 25,2015
A skydivers jumping with SDMB landed outside the DZ, landing north east of the landing
zone, abeam Runway 23 approach lights.464
1
100.
August 9,2015
A parachutist jumping with SDMB landed outside the DZ, east of the runway, southwest of the
ATCT.465
1
101,
August 9, 2015
A solo parachutist jumping with SDMB, landed outside the DZ, between taxiway C, T, and the
ramp. Jumper landed northeast of taxiway A, between ramp and taxiway. Due to the
skydiver's proximity to taxiway A, a taxiing Citation was stopped by the ATCT until the
skydiver was clear of the area.466 A FSDO report on the matter stated "there were four
MORs this weekend...two were concerns, one a Cessna Citation had to stop on the taxiway to
let a parachutist get his chute off of the taxiway, and another when a jumper had to cut
away his main, and was away from the other jumpers descending. Tower didn't see this
jumper...[and] let an aircraft takeoff, and although not close, was a concern because they
didn't know the jumper was there."467
1
102.
August 9,2015
A tandem parachutist jumping with SDMB, landed outside the DZ. The skydivers landed
northeast of runway 23, between taxiway A and taxiway C.468
2
103.
August 9, 2015
A solo parachutist jumping with SDMB, landed outside the DZ. The jumper touched down on
west side of the runway, southwest end of airfield. It was reported that the jumper had to
cut away from main chute and deploy back-up. CRE ATC stated that it appeared the
parachutist was following the cut-away chute down to see where it would land. Cut-away
chute came to rest in the nearby ICW and was retrieved by a passing pleasure boat. Jumper
remained on west side of RWY until retrieved.469
2
104.
Au gust 9, 2015
A solo parachutist jumping with SDMB, landed outside the DZ, between taxiway C, T, and the
ramp. Jumper proceeded to ramp. No clearance required from ATC.47°
1
105.
August 9, 2015
A skydiver landed in the grass between runway 23, taxiway A, taxiway C, and taxiway 8.471
1
106.
Au gust 9, 2015
A skydiver landed in the grass on the northwest side of runway 23. Another landed in the
grass between taxiway C taxiway T, and the ramp.472
1
107.
August 22, 2015
A solo parachutist, jumping with SDMB, landed outside the designated landing zone. Jumper
1
461 FAA Exhibit 1, Item, 22B.
Page 50
touched down southern end of Airfield just south of taxiway 8.473
108.
August 28, 2015
Five skydivers with SDMB landed outside of the DZ. The jumpers touched down on the grass
area, abeam the approach end of RWY 5. The jumpers did not cross any active taxiways or
runway.
5
109.
September 5, 2015
Five skydivers from SDMB missed the DZ and landed in the RSA for runway 5. One skydiver's
descent path took him into the approach of runway 5, causing an aircraft (N208TS) to
perform a 360 maneuver on final.474
5
110.
September 5, 2015
A skydiver with SDMB landed outside the designated landing zone. The skydiver touched
down in the grass infield, abeam the ATC Tower.
1
111.
September 19, 2015
112.
September 27, 2015
A skydiver touched down outside the landing zone, landing between the ATCT and taxiway
A.476
1
ATCT observed a parachutist land on taxiway alpha approximately 300 feet northeast of
taxiway T. Prior to the parachutist landing, jump 1 had landed runway 05 and was exiting the
runway onto taxiway bravo, approximately 2,500 feet from the parachutist. 477
1
TOTAL:
211 Skydivers
211
TOTAL:
112 Incident Reports
The data in Table 1 and graph below illustrates 112 safety incidents reports representing 211 separate
skydiving events (individual skydivers involved) at CRE between March 2013 and September 2015.478 In
addition to the high number of incidents, the data appears to indicate an increase in the rate as well. The
related trends lines (graph), number of reports and number of skydivers involved, are also a concern, and are
indicative of systemic safety problems concerning skydiving operations at CRE. The data illustrates that,
over time, the skydiving safety deficiencies at CRE not only have not been resolved, but have worsened.
Skydiving Safety Incidents at CRE (March 2013 - September 2015)
25
23
22
19
20
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4" The data are VPDs, MORs, and UIRs [Vehicle Pedestrian Deviations (by FAA), Major Occurrence Reports (by FAA), Unusual Incident Reports (by County)], and
entries in the CRE ATCT skydiving log. The list and graphical depictions contain only those incidents that the FAA was able to document as part of the record.
474
Page 51
Routine landings outside the DZ are a safety issue requiring mitigation and the type of safety incidents
associated with SDMB's operations at CRE cannot be dismissed as "minor," "commonly accepted," or
"permissible," as SDMB implies. To illustrate this, the airport diagram below illustrates the approximate
locations of many of the reported safety incidents at CRE.'
it 4
AIRPORT DIAGRAM
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These skydiving incidents at CRE can be categorized as accident precursors, which, unless addressed, can
lead to an accident.48° Precursor identification, which these data supports, is critical in preventing accidents
before they happen,481 and analyzing the data for safety trends, causal factors, and mitigation effectiveness,
results in improved safety, procedures, and protocols,482 and in this case, all related to the safety of skydiving
operations. From a risk management perspective, and under its federal obligations as the airport sponsor,
these safety deficiencies must be mitigated by the County.
479
The chart illustrates some of the safety incidents which could be reasonably located on the airport. Not all incidents in the record were detailed enough as to
be placed in a precise or even general location at the airport.
980 FAA Exhibit 1, Item 14. A failure may, in combination with less favorable circumstances or left unattended for longer time periods, lead to a severe
consequence. If there is indeed potential for the observed anomaly failure to recur and lead to an accident (i.e. a situation that has more severe consequences),
then the anomaly may be called an accident precursor.
481 See Causal Factors for General Aviation Accidents/Incidents Between January 1984 and October 2004, page vii.
" See FAA National Runway Safety Plan (2015 — 2017), page 58.
Page 52
Two photographs of the November 9, 2014 safety incident where SDMB skydivers landed outside the DZ nearly missing the moving blades of a Navy SH-60
helicopter preparing to take-off. Top, the skydiver is seen on the right while the front part of the SH-60 helicopter is visible on the left, in line with the VOR.
Above, the skydiver is collecting the parachute before walking back to the ramp. Source: FAA Exhibit 1, Item 8.
f. Case Studies
In order to illustrate several of the hazards associated with skydiving operations discussed in this case such as
skydivers missing the DZ, crossing active runways, landing close to moving aircraft, failure to adhere to
established procedures, inadequate integration of skydiving with normal airport operations, the need for an
adequate DZ, and potential injury, numerous case studies were reviewed. From a safety management
perspective, case studies illustrate the consequences of not mitigating the hazards since they are real and
contextually relevant situations to what has and could occur at CRE. The following excerpts from NTSB,
FAA, and NASA ASRS483 reports are samples which illustrate several of the safety issues in this case.
Case 1
On October 21, 2000, a Champion 7ECA, piloted by a private pilot, sustained substantial damage when it
collided with a skydiver while about to touchdown during landing. In a written statement, the pilot said that
on final approach he noticed a skydiver and noted that "in my judgment it was clear to land on the sod
runway as the skydiver was on target over his designated landing spot, well to the left of runway 12. I
touched the aircraft down and at that time the skydiver must have turned downwind as he ended up landing
in the middle of the runway. I applied my right rudder to avoid a collision with the skydiver. This action
resulted in my crossing the paved runway and entering the field. At this point I hit some brush and flipped
the aircraft."484
Case 2
In April 2004, a pilot files an ASRS report. In its report, the pilot reported that "parachutists were (on two
separate occasions) seen landing on the runway surface of runway 3/21. This is not the first time this has
happened. During these days of heavy parachute traffic, sometimes as many as 25-30 are released at a time
and they land all over the airport, crossing back and forth over the active runway on their descents. No
particular drop zone seems to be observed, as they just use the whole airport surface creating a hazard to
normal airport traffic...it is just a matter of time before someone is killed and would like the FAA to monitor
the sit at this airport to help improve safety."485
'
3 Aviation Safety Reporting System.
4" FAA Exhibit 1, Item 28, NTSB CHIO1LA020.
485 FAA Exhibit 1, Item 28, NASA ASRS Report No. 616472.
Page 53
Case 3
On April 23, 2005, a De Havilland DHC-6 collided with a cinematographer parachutist during the downwind
leg for landing on runway 23at the Deland Municipal Airport, Florida. The commercial-rated pilot reported
no injuries and the cinematographer parachutist received fatal injuries. The airplane incurred substantial
damage. According to one ground witnesses, the parachutist was descending and was about 600 feet above
ground level when the left wing of the airplane collided with him. A representative of the aircraft operator
was asked by NTSB about the protocol to enter the traffic pattern. [This representative] stated that verbal
guidance is given to them (pilots) to follow the FAA rules and it up to their discretion. There are no written
protocols. The only thing is the noise abatement procedures. The acting airport manager stated that there is
no Letter of Agreement for airport operations between Skydive Deland and the City of Deland, only the lease
for the property agreement 486
Case 4
On May 26, 2005 a Pilatus PC-6 collided with a parachutist on fmal approach for landing. The pilot was not
able to maintain directional control and the airplane impacted trees and terrain near the airport. The pilot
stated that he was on final approach for landing, when a parachutist "made a rapid descent and accelerated
from behind [his] right wing." The parachutist hit the right wing and the airplane entered an unrecoverable
descending right turn, subsequently striking a tree line. The parachutist involved in the accident noted that
he intended to land in front of the hangar. He reported he did not hear or see the jump plane. The drop zone
for experienced parachutists was located north of the turf runway and west of the hangar buildings. The
NTSB determines the probable cause(s) of this accident to include (1) failure of the pilot to maintain
clearance from the parachutist descent area/drop zone, (2) parachutist's failure to maintain an adequate visual
lookout for the jump plane during all phases of the jump, and as an additional factor, "the proximity of the
runway to the drop zone."487
Case 5
This jump occurred early afternoon on January 29, 2006. The winds were from the west, stronger at altitude,
but about 7 to 20 mph on the ground. Because of stronger uppers, the jumper found it not possible to land in
the regular landing area. He chose to land just on the other side of the runway in a field east of the drop
zone. However, he was determining his landing direction according to the windsock that was about 250
yards away, and faced west for landing, although his canopy was being pushed from his left, a stronger south
wind in the field he chose. He was crabbing on final approach, and did not flare past his shoulders for
landing. Hence, the canopy did not slow its descent or forward speed when he hit the ground which caused
him to time his flare incorrectly. Although he chose correctly to land in a safe, alternate landing area, he
failed to use his own perception of his direction under canopy, instead of a wind sock that indicated
something different than what he was experiencing.488
Case 6
On November 11, 2012, a licensed skydiver exited the jump plane. The freefall and parachute deployment
were uneventful and the jumper was in control of his parachute. He was seen making a 360 degree turn,
losing more altitude and landing in a field short of the drop zone. He landed on the ground but his parachute
was caught in the tree line indicating that he overshot his alternate landing area. The parachute equipment
was undamaged and in working order. He was taken by ambulance to cooper hospital where it was
determined that he broke his hip.'"
4" FAA Exhibit 1, Item 28, NTSB MIA05LA096.
4" FAA Exhibit 1, Item 28, NTSB CHIO5LA130.
4" FAA Exhibit 1, Item 28, FAA ASIAS Report 2006-01290014491.
4" FAA Exhibit 1, Item 28, FAA ASIAS Report 2012-11110235191.
Page 54
Case 7
On December 15, 2012, four skydivers exited a jump aircraft and performed a routine free-fall and all four
parachutes opened normally and had good flying canopies. Three of the jumpers turned west into the wind to
make an upwind landing and landed without incident. The fourth skydiver continued to fly to the east,
downwind for approximately one quarter of a mile, missing the drop zone. He struck a tree and fell
approximately 20 to 25 feet. It is believed that the victim landed on his back on the reserve parachute pack
causing serious injuries to his spine. It was determined that the victim, due to lack of experience or work
overload, that he was too low to make the 180 degree turn into the wind to land as the other three skydivers
had done. The victim was transported to the hospital in serious condition and his injuries included damaged
vertebra and paralyzed from his mid back down through his legs.49°
Case 8
On March 8, 2014, a Cessna 170B collided with a parachutist and parachute just before touchdown. The
pilot of the airplane that struck the parachutist reported the following that "he was on final approach for
runway 32 and was about 15 feet above the ground" when "a parachutist dropped down in front of me and
was a going to land in the center of the approach end of the runway." He immediately climbed to avoid the
parachutist and the parachute rigging caught his wing. He crashed nose first into the ground. Two witnesses
reported that the parachutist's glide path crossed the approach end of runway 32. One of these witnesses
reported that the right wing caught the parachute's suspension lines, causing the airplane to crash and the
parachutist to be thrown to the ground.491
g. Director's Analysis of the Safety Issues
A review of the pleadings shows SDMB dismisses not only the safety concerns expressed by the County, the
ATCT, and FAA, but also the safety implications of landing outside the drop zone. The Director will address
the safety issues presented by the parties as follows:
•
•
•
•
Safety Issue 1 — The LOAs and Related Safety Protocols;
Safety Issue 2 —ATCT Role and Actions;
Safety Issue 3 — 14 CFR Part 139 v. Part 105 Interpretation and AC 105-2E; and
Safety Issue 4 — FAA Safety Concerns (FAA Airports — FSDO — ATO).
Safety Issue — The LOAs and Related Safety Protocols
A LOA is a common protocol to assist airport sponsors, air traffic control, and users in ensuring safe airport
operations, including skydiving. 492 At CRE, there are two such agreements. The first, dated January 1, 2012,
is an agreement between the County and the ATCT. It defines responsibility for the control of aircraft,
vehicular, and pedestrian traffic within the airport movement areas of CRE in order to "limit...the movement
area involving aircraft, vehicle, pedestrian, or object...that would create a collision hazard and/or loss of
separation with an aircraft taking off, landing, or taxiing." ATCT responsibilities in the LOAs include (1)
controlling all aircraft, vehicular, and pedestrian traffic in the defined movement area and (2) notifying
airport operations of movement area incursions committed by vehicle operators or pedestrians. The County's
roles include (1) informing all authorized users on the use of the movement area, including the requirement
to receive ATCT authorization, (2) informing users of the requirement that vehicles or equipment on the
movement area must maintain radio communications, and (3) addressing lost communication procedures.493
° FAA Exhibit 1, Item 28, FAA ASIAS Report 2012-12150283791.
45
49i FAA Exhibit 1, Item 28, NTSB ERA14LA146.
4" FAA Order JO 7210.3Y Facility Operation and Administration, paragraph 4-3-1, and 18-4-1. For additional cases and investigations, see the NTSB database, FAA
Aviation Safety Information Analysis and Sharing (ASIAS) system, and USPA accident data base at
http://www.uspa.org/USPAMembers/Safety/AccidentReports.aspx.
Page 55
The second LOA, dated May 11, 2012, is an agreement between the County, the ATCT, and SDMB for
conducting parachute operations at CRE. It defines the location (DZ), and the authorization for parachutists
"to land in the defined [DZ]." It does not authorize landings on any runway, taxiway, or ramp area of the
airport.494 LOAs of this type can and should include movements required by the skydiving operator on the
airport as well as instructions and/or restrictions for crossing runways, operating vehicles on the airfield,
radio communications, and emergency procedures.495
The use of LOAs and related processes are not only reasonable and consistent with the County's authority,
consistent with its obligations to operate CRE in a safe manner, and consistent with FAA guidance (e.g., 14
Part 105.23, Advisory Circular AC 90-66A, Advisory Circular AC 105-2, FAA Order JO7210.3Y,496 SMS
guidance), but essential to achieve an acceptable level of safety in skydiving operations. Both LOAs are
legitimate and reasonable actions by the airport sponsor in accommodating skydiving operations,
coordinating with the appropriate FAA air traffic control facility, and addressing site-specific issues and
concerns. As a measure to mitigate hazards, such as air traffic conflicts and those which can be created by
uncontrolled access or/and movements in the airport's movements areas, an LOA and related processes are
common safety practices used by airport sponsors and advocated by the FAA at many other airports in the
country.497
SDMB challenges the LOAs and the use of ground communication and documentation protocols for vehicle
and pedestrian incursions on active taxiways and runways at CRE,498 and fmds them "unwarranted
restrictions on its designated landing zone at CRE."4" SDMB also objected to specific provisions in the
revised draft LOA (June 2014), including the provisions regarding the documentation of safety hazards
including landings outside of the DZ, other deviations by the skydiving operator, notification by the ATCT to
the County,50° and successive penalties for failure to comply with existing policies. Although the record
shows that a compromise was reached that was acceptable to all parties, following several interactions with
the County and the ATCT, SDMB refused to sign a revised LOA.501
The County position is that "the reporting protocol [the County] and the [ATCT] have implemented to
document safety hazards, including vehicle and pedestrian incursions on active runways and taxiways, and
its further objection to purported restrictions on its landing zone," are warranted. 502 The County repeatedly
defends that the "documentation protocol [was] implemented due to stated safety concerns."503
The Director is not persuaded by SDMB's claims and arguments. As indicated by the record, the type,
frequency, and high number of safety incidents involving SDMB's operations, mainly attributable to landing
outside the DZ, demonstrate that SDMB is unable to meet several of the safety requisites in both LOAs. The
LOAs are common and necessary safety practices for safe skydiving operations, as required by, but not
limited to 14 CFR § 105.23. Both LOAs and the proposed changes to which SDMB objects are in
accordance with FAA guidance, which recommends that airports develop an LOA with the skydiving
operator that describes specific operating requirements and boundaries of the DZ.504
Even if some of the LOA's protocols were considered 'restrictions' affecting SDMB, the record offers no
evidence for determining these protocols to be anything other than the County acting upon valid safety
FAA Exhibit 1, Item 3, page 8. Also see FAA Exhibit 1, Item 17A.
Exhibit 1, Item 3, pages 23-24.
496 See Order .107110.65V Air Traffic Control, Section 7 Parachute Operations and FAA Order .107210.3Y, Section 4 Parachute Jump Operations.
497
See DOT/FAA/AR-11/30 Development of Criteria for Parachute Landing Areas on Airports at 26, § 8.2.2.
50° FAA Exhibit 1, Item 1, Exhibit 1, pages 149-151.
9'2 FAA Exhibit 1, item 3, page 20.
5°3 FAA Exhibit 1, Item 3, page 7.
5°4 See FAA Order JO 7210.3Y Facility Operation and Administration, 18-4-1.
494
4" FAA
Page 56
concerns. The protocols are reasonable, and not unjustly discriminatory. As stated in FAA Order 5190.6B,
"a prohibition or limit on aeronautical operations justified by the sponsor on the basis of safety . . . will be
evaluated based on the stated purpose, justification, and support offered by the sponsor."'
Both the Complaint and the record make clear that the County, the ATCT, FAA Airports, and FAA FSDO
have repeatedly presented their safety concerns to SDMB. The record also shows that, although SDMB
participated in the process, it has been unable to attain the necessary compliance with the required safety
procedures and expectations while engaged in skydiving operations. Finally, the record does not contain data
to substantiate the claim that SDMB was or is unjustly targeted by the LOA process, its contents, or its
application.
Therefore, the Director finds that the LOAs in place, including related processes and documentation
protocols, are well within the bounds of an airport's permissible regulation of skydivers under the County's
federal obligations.
Safety Issue 2 — ATCT Role and Actions
As discussed above under Safety Issue Count 1, SDMB challenges the safety processes in use at the Airport
(e.g., ground communications and documentation protocols for vehicle and pedestrian incursions on active
taxiways and runways at CRE). However, in its Complaint, SDMB goes a step further and argues that the
County has a "partnership" with the contract ATCT that results in "policing unusual airport activity and
refereeing the boundaries of SDMBs primary [DZ]." SDMB alleges that the County and the contract tower
"are working together to report and enforce subjective unusual incidents."'
The Director is not persuaded by SDMB's allegations. First, to assert that the County as the airport
sponsor and the ATCT have effectively engaged in "collusion" of some kind is not supported. As
discussed above, the actions by the County and the ATCT concerning LOAs and related processes are
valid and stand as reasonable and not unjustly discriminatory.
The fact that the ATCT at CRE is a contract tower is also irrelevant. There are no detrimental implications
concerning the quality, service level, or safety of the operations performed by the contract ATCT at CRE.
The ATCT at CRE follows and adheres to FAA requirements and guidance."' Moreover, a review of the
record shows no evidence to suggest that the contract ATCT has misrepresented skydiving safety issues at
CRE. To the contrary, the level of detail and record keeping maintained by the ATCT508 concerning the
safety incidents at CRE are indicative of a proactive approach to safety management.
The record also indicates that SDMB knew the stated purpose of the LOA between the County and the
ATCT was "to limit to the maximum extent practical a situation on the Movement Area involving
aircraft, vehicle, pedestrian, or object on the ground that would create a collision hazard and/or loss of
separation with an aircraft taking off, landing, or taxiing." SDMB also knew that the LOA stated that
ATCT controls "all aircraft, vehicular, and pedestrian traffic in the defined movement area at CRE."
SDMB was also aware of the ATCT's obligation, pursuant to the LOA, to "Notify the airport
operations...of observed Movement Area incursions committed by vehicle operators or pedestrians."'
505 See FAA Order 5190.6B § 14.4(d) at 14-3.
5°6 FAA Exhibit 1, Item 1, pages 2-3.
507 FAA Order JO 7210.3Y Facility Operation and Administration, paragraph 4-3-1, and 18-4-1. Also, the ATCT at CRE is a contract tower. The FAA's Contract
Tower Program allows the FAA to contract with private entities to provide air traffic safety services at low-activity airports. Currently, 250 airports in over 45
States participate in the program. FAA retains safety oversight of the contract towers, and the controllers who staff them and all contract controllers are certified
by the FAA. Contract facilities are monitored on a regular basis by the agency, and staffing plans are approved by the FAA. Contract controllers are subject to the
same rules, medical exam requirements, operational procedures, and training as are FAA controllers. Therefore, for the purpose of this Complaint, including all
issues, discussion, or allegations concerning CRE's ATCT, the Director considers its performance, credibility, and integrity to be equal to any FAA facility of the
same type, along with all of the related expectations and responsibilities.
508 See FAA Exhibit 1, Item 21.
Page 57
Therefore, objection to the ATCT documenting and notifying the County of any incidents is
unreasonable and inconsistent with common safety practices. On this, the Director adds that SDMB's
claims that it was not aware of the LOAs, or that it was not provided with copies or otherwise that the
County kept those away from SDMB have no merit. SDMB cannot plead ignorance on how to conduct
skydiving operations in accordance with such basic requirements as landing on the DZ (not outside), and
avoiding penetrating movements areas, the runway or taxiways.51°
In any event, the 'partnership' between the County and the ATCT as described in the Complaint is the type
of collaborative approach to safety management that assists an airport sponsor to achieve safe operations.
The County sought and seeks to gather safety data regarding incidents and accidents in a manner consistent
with the guidance in FAA AC No. 150/5200-37 Introduction to Safety Management Systems (SMS) for
Airport Operators.511
The actions of the ATCT, including the actions SDMB objects to (e.g., reporting, documenting), are
consistent with the applicable FAA guidance, including FAA Order J07110.65V Air Traffic Control, Section
7 Parachute Operations and FAA Order J07210.3Y, Section 4 Parachute Jump Operations, FAA Order
7050.1B Runway Safety Program, and FAA Order 1000.37 ATO Safety Management System. FAA Order
5190.6B states "...if a sponsor believes that there is a safety issue with the flight operations of an individual
aeronautical operator..." the sponsor should report the issue to the FAA.512
The Director fmds no detrimental implications with regards to the quality or safety of the operations
performed by the contract ATCT at CRE. Moreover, a review of the record shows no evidence to suggest
that the contract ATCT has improperly colluded with the County or otherwise misrepresented skydiving
safety issues at CRE. Finally, the actions SDMB objects to are consistent with existing FAA safety
guidance.
Safety Issue 3 — 14 CFR Part 139 v. Part 105 Interpretation and AC 105-2E
SDMB argues that both the County and the ATCT "are confused about the proper application" of Parts 105
and 139..."and the difference between 'pedestrians' and 'parachutists' in Parts 139 and 105 respectively."
SDMB states that the County and the ATCT "are either unable or unwilling to differentiate between Part 139
`pedestrian' activity and Part 105 'parachutist' activity...as it applies to legitimate aeronautical practices
delineated in Part 105, [and] AC 105-2E."513
AC 105-2E Sport Parachuting, which states that "...while skydivers attempt to land in [the DZ], at times
there may be inadvertent landings in other grass or hard-surfaced areas. This could include landings on
runways, taxiways, and other hard-surfaced areas. Areas such as runways, taxiways, clearways, and Obstacle
Free Zones (OFZ) are not prohibited areas but should not be designated as a primary landing area and should
be vacated as soon as practicable."514
SDMB also argues that although the County and the ATCT "have a [LOA] that requires all pedestrians and
vehicles to have two-way radios and receive [ATCT] authorization prior to entering active areas defined as
taxiways and runways at GSA...it appears that [the ATCT] and [the County] 'feel' that Part 139 supersedes
Part 105 and FAA's interpretation of the regulatory interrelation of sport parachuting operations and airport
"° See Background section for narratives of this and the related references in the record.
"'For example, see FAA Exhibit 1, Item 5, page 23. The essence of this work is to identify hazards, rank risks of hazards by severity and likelihood, mitigate
unacceptable risks, and review the mitigated hazards to determine whether the risk has been reduced to an acceptable level. The frequent landings outside the
DZ, many of which have resulted In runway and taxiway incursions, are clearly safety hazards to other aeronautical operations at CRE.
512 FAA Order 5190.68, pages 14-2.
514 AC 105-2E, 116(c)(2).
Page 58
safety found in FAA AC 105-2E." SDMB adds that "this apparent regulatory misinterpretation is the genesis
of the current issues" in the Complaint.515
SDMB also contends that the County "negligently failed to meet its obligations under 14 CFR § 139.329 (to
inform tenants of unpublished agreements) and then cites 14 CFR § 139.329 as justification for its safety
concerns and new unpublished policies. These practices are per se discriminatory.' However, SDMB also
argues that "the safety provisions of 14 CFR § 139.329 do not apply to it because sport parachuting safety is
governed by 14 CFR Part 105."517
The County rejects these claims and specifically the claim that SDMB's "skydivers should not be considered
pedestrians..., and should not therefore be subject to the requirement to contact the tower before crossing an
active runway or taxiway."518 The County also questions SDMB's claim that "skydivers do not become
pedestrians when they land, and instead remain 'parachutists' under 14 CFR Part 105..." The County
contends that "under this self-serving and dangerous interpretation of these two regulations, SDMB's
skydivers would be allowed to walk across the taxiways and runways with impunity, whenever they chose,
even if an aircraft were about to take off or land." 519
SDMB's argument is not credible. First, FAA's guidance concerning skydiving operations' access to
airports as an aeronautical activity does not consider a skydiver, especially on the ground after landing, to be
analogous to an "aircraft."52° An "aeronautical activity" is an "activity which involves, makes possible, or is
required for the operation of an aircraft, or which contributes to or is required for the safety of such
operations; i.e., air carrier operations, flight training, air taxi, charter operations, aircraft storage, sale of
aviation fuel,' skydiving, ultralight operations, etc..."521 This definition cannot be construed as granting a
skydiver the classification of an aircraft and certainly not as permitting walking skydivers 'free roaming
rights' on the airport's runway, taxiways, or movement areas.
Certainly, SDMB's implied argument that when a skydiver inadvertently lands on a runway, taxiway, or
other surface that is outside the designated landing zone, the parachuting safety protocol to "vacate" the area
"as soon as practicable" allows it to ignore its obligation to contact the ATCT for permission before crossing
active taxiways and runways, is not acceptable.522 If for safety reasons, an aircraft has to adhere to ATCT
instructions and procedures, so must a skydiver. If a pilot violates a rule by entering a runway without
authorization (unsafe action), so should a skydiver. A skydiver landing on an active runway or taxiway, or
one walking across movement areas "unimpeded by the ATCT" are hazards the FAA expects the County to
mitigate accordingly. This is true regardless of whether the term `pedestrian,' parachutist,' or any other
name or classification is used. Aviation safety is an area wholly regulated by the Federal Government and
the FAA is the agency with the authority to implement 49 U.S.C. § 40101 through its regulations and
guidance, and its interpretation of these statutes receives deference.523
"5 FAA Exhibit 1, Item 1, page 2.
5
516
FAA Exhibit 1, Item 6, pages 8 and 13.
"'The County states that CRE is not a Part 139 certificated airport, however, like many general aviation airports, it looks to Part 139 for guidance in complying
with its federal grant obligations. FAA Exhibit 1, Item 3, page 3.
520 See Skydive Paris Inc. v. Henry County. Tennessee Director's Determination, 18, FAA Docket No. 16-05-06 (Jan. 20, 2006). In that decision, the reference to
"the coexistence of an OFA with a drop zone is not inherently unsafe, and that each situation must be judged on its individual merits." In addition, while the
decision did not call skydivers 'aircraft,' it did state that "there exists a longstanding precedent for affording skydivers the same operational latitude given to an
aircraft in flight or while taxiing..." However, the discussion was limited was limited by noting that the "OFAs speak to stationary objects that will remain in a
fixed position," was based on the specifics of that case (e.g., operations in the Object Free Area) and based on a site-specific safety assessment by Flight
Standards. The discussion and statements were also made within the context of a safety assessment, designed to attempt in mitigating potential, safety
concerns. In the present case, the safety data, in the form of safety incidents, have been determined by both ATO and Flight Standards, to be unsafe, which is by
itself, the determinant in the case. Therefore, the distinction between the present case and Skydive Paris, unsafe v. no valid safety data to restrict, precludes the
Director from finding any relevant similarity.
"1See FAA Order 5190.6B, pages 2-14, and 8-8.
"'See FAA v. CIty2f Santa Monica, Director's Determination, 30, FAA Docket 16-02-08 (May 27, 2008). Also see Chevron USA, Inc. v. National Resources Defense
Council, 467 U.S 837 (1984).
517
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14 CFR Part 105 provides that "no person may conduct a parachute operation...if that operation creates a
hazard to air traffic or to persons or property on the surface."524 A skydiver descending upon an
unsuspecting taxiing aircraft, a skydiver crossing an active runway, or one landing near the rotating blades of
a helicopter, is a hazard. Not controlling these introduces unnecessary risks.
The Director notes that while CRE is not a 14 CFR Part 139 certificated airport, it is not unreasonable to look
to Part 139 for guidance in addressing safety issues at a non-Part 139 airport. Certain elements in 14 CFR
Part 139 constitute an acceptable process to address a particular safety issue regardless of whether the airport
has a 14 CFR Part 139 certificate or not. Many general aviation airports voluntarily incorporate appropriate
elements of 14 CFR Part 139 and their supporting Advisory Circulars to enhance the safety of their
facilities.525
Contrary to SDMB's assertion that skydiving landings outside of the designated drop zone and inside the
airport should be permitted because skydiving operations are just like any other aircraft, is nonsensical. In
many cases, skydivers have drifted across the runway and taxiways with aircraft in the proximity, landed or
intruded upon active movement areas, and this plainly constitutes a hazard to air traffic.'
Landing "anywhere at the airport," as SDMB implies, is dangerous, and is not acceptable. SDMB's
argument here appears to be that, because Part 105 states that in an emergency a parachutist may land
anywhere at the airport, the "landing zone" now becomes the entire airport. FAA rejects this.
The guidance in AC 105-2E Sport Parachuting is very clear. While skydivers, at times, may inadvertently
[emphasis added] land outside the DZ [and this could include landings on runways, taxiways, clearways, or
Obstacle Free Zones (OFZ)],527 this cannot be considered acceptable as a routine practice. Tolerating
occasional deviations is one thing, but designating any airport areas as a "normal" DZ or primary landing
areas, is unacceptable. The fact is that very high number of "inadvertent" landings outside the landing zone
by SDMB skydivers at CRE has created a serious and permanent safety concern that the County must
manage and mitigate.
SDMB's claim that it is "permitted to land anywhere within 5 (five) miles of the airport, if necessary,"528
only refers to the airspace to be used, not a particular DZ. The hazards associated with a skydiver "moving"
anywhere at the airport cannot be ignored. To do otherwise would create unnecessarily dangerous conditions
in the movement areas of the airport, not just for the skydivers, but other aircraft, people, and possibly
property as wel1.529
14 CFR Part 105 does not supersede common safety practices, FAA's safety guidance for runways, taxiways,
and movement areas, VPDs, or related safety elements in Part 139. Such an approach, as SDMB suggests, is
unacceptable from a safety standpoint, and has the effect of rendering FAA's guidance null and void."' For
example, and using Part 139 as guidance, an airport operator must "establish and implement procedures for
the safe and orderly access to, and operation in, movement areas and safety areas by pedestrians and ground
vehicles, including provisions identifying the consequences of noncompliance with the procedures by an
employee tenant, or contractor."' Certainly, adopting such practices at a GA airport cannot and would not
be considered an unreasonable practice. If a skydiver were to land in front of a taxiing aircraft at a 14 CFR
Part 139 airport, from a safety standpoint (and FAA concern), there is no difference from a situation where
524
See 14 CFR § 105.5.
General Aviation Safety and Security Practices: A Synthesis of Airport Practice, Airport Cooperative Research Program, 2007, page 6.
525 See FAA v. Peter S. Woermann, NTSB Docket SE-14381, NTSB Order No. EA-4644, March 18, 1998, page 4.
527 The same logic applies to other safety areas such as Runway Safety Areas (RSA), Object Free Areas (OFA), Object Free Zone (OFZ), Runway Protection Zones
(RPZ), and Taxiway Safety Areas (TSA). See AC 150-5300.13 Airport Design.
529
53° FAA Exhibit 1, Item 3, pages 22.
5" 14 CFR § 139.329(b). FAA Exhibit 1, Item 3, page 20.
525
Page 60
the same occurs at a GA airport. Both are dangerous, and both may require a common mitigating strategy,
which may be found in 14 CFR Part 139. Even if no reference to Part 139 would have been made in this
case, the hazards created by landing outside the DZ on a regular basis and being responsible for uncontrolled
access and crossings of the airport's movement areas constitutes unsafe practices that still require mitigation.
Therefore, the use of an acceptable process, such as relying on 14 CFR Part 139 to address a particular
hazard, is not unreasonable."'
The Director cannot accept that airport safety areas be de facto considered "acceptable" as DZs, as SDMB
implies. It is a basic concept in airport operations to maintain certain safety areas clear during aircraft takeoff and landing operations. The FAA's Runway Safety Office and other FAA organizations concur with
restricting the use of airport safety areas as DZs. Although a DZ may, in some cases and under certain
conditions mitigations) overlap a safety area, as a matter of safety, this is not a blank authorization that a DZ
can overlap runway and taxiway safety areas. It is a basic airport design premise to maintain these areas
(e.g., TSA," OFZ) clear during aircraft takeoff and landing operations.534
SDMB has agreed to adhere to CRE's established procedures and DZ... SDMB acknowledges that it "agreed
to comply with these provisions . . . and implemented internal procedures to meet the terms of the...LOA." In
fact, as part of discussions with ATCT concerning 14 CFR § 139.329, SDMB stated that it "appreciate[s] the
heads up and in conjunction with the LOA this makes complete sense. Now that we have a copy, we have
implemented SOPs here where this should no longer present itself as an issue henceforth."' It is reasonable
for an airport sponsor with an ATCT to "ensure that each pedestrian and ground vehicle in movement areas
or safety areas is controlled by...radio...between each pedestrian or vehicle and the tower." Similarly, it is
reasonable for the airport sponsor to maintain a "description and date of any accidents or incidents in the
movement areas and safety areas involving...aircraft, a ground vehicle, or a pedestrian."536 The fact that
both of these are in 14 CFR Part 139 does take away from the fact that the safety benefits of such practices
are real, consistent with safety management principles, and should be encouraged.
Finally, as a matter of statutory interpretation the safety provisions of 14 CFR Part 105 and 14 CFR Part 139
(and related policies and guidance) must be read together to give both meaning and be effective safety
mitigation tools. The relevant sections in 14 CFR Part 105 and 14 CFR Part 139 are not mutually exclusive.
They complement each other, as discussed above. Both "point generally in a common direction," as the
County argues."' The issue here is not, nor could it be, a violation of 14 CFR Part 139, but rather the use of
reasonable 14 CFR Part 139 safety guidance to assist the airport and ATCT in mitigating a demonstrated
safety issue.
The Director rejects SDMB's arguments (its own interpretation of the regulations) on this matter and finds
that the use and interpretation of both 14 CFR Part 105 and 14 CFR Part 139 and related guidance, by the
County are consistent with ensuring safe skydiving operations at the airport. They are appropriate,
reasonable, and in this case, necessary. Their use is consistent with the County's Federal obligations.
Safety Issue 4 — FAA Safety Concerns (FAA Airiaorts — FSDO — ATO)
In all cases involving restrictions on airport use imposed by airport owners for safety reasons, the FAA
makes the final determination on the reasonableness of such restrictions when those restrictions appear to
5
"The variables at play, such as number and type of skydiving operations, number, and type of aircraft operations, specifics in a LOA, and airport geometry, all
have a role in risk mitigation and in the adoption of a particular DZ or its adjustment. There might be cases where a DZ may extend into a taxiway or runway
safety area, but this cannot be taken as representing risk free operations at other airports since specific mitigations measures which may be in place (e.g., no
simultaneous aircraft and parachute operations, or an LOA incorporating specific procedures) are not necessarily available elsewhere. Depending on the specifics
at hand (e.g., operator, safety record, DZ characteristics, etc.), requiring certain levels of experience, or restricting certain type of skydiving operations may be
adequate mitigation strategies.
"'Taxiway Safety Area.
534 For example, see AC 150/5300.13 Airport Design, page 8, definitions of OFA and OFZ.
537 FAA Exhibit 1, Item 3, pages 22.
Page 61
deny or limit access to, or use of, the airport.538 As part of a 14 CFR Part 16 investigation, the Director,
working in conjunction with Flight Standards and/or the Air Traffic Organization, will carefully analyze
supporting data and documentation and make the final call on whether a particular activity can be conducted
safely and efficiently at an airport.539 In this case, and in addition to FAA Airports, FAA ATO and Flight
Standards have been closely involved on the matter of the safety of skydiving operations at CRE.549
For example, in April 2014, the ATCT began reporting safety complaints to the FSDO. The record also
shows extensive coordination between the County and the ATCT.541 Air Traffic (ATCT) has, in multiple
instances, over a period of more than two years, consistently voiced safety concerns about the situation at
CRE. The ATCT has not only reported this to FAA, but also made it known to SDMB many times. As part
of its numerous communications with SDMB, the ATCT has reiterated the safety concerns over SDMB's
recurrent incidents, including routinely landing outside the DZ, crossing active taxiways, and causing VPDs
and MORs to be filed. In fact, as part of this case, on June 11, 2014, the ATCT manager at MYR stated that
"the safety of parachute operations is a major concern in the National Airspace System. More specifically, it
is currently one of the top 3 safety concerns."542
On April 7, 2015, FAA's Southern Region Airports Division notified the County that it had been "raising
concerns over skydiving operations at CRE."543 The FAA letter also noted that "the purpose of this inquiry
is to identify what actions [the County] is taking to address what [the FAA] now consider[s] a significant
safety trend and accident precursors that must be mitigated" and "to determine if CRE is safely operating in
accordance with the County's federal airport obligations."544
On May 6, 2015, the FAA's West Columbia FSDO sent a letter to SDMB raising safety concerns about
"number of notifications to which this office has been made party. These growing numbers of notifications
primarily entail parachute operations in which parachutists egressing aircraft operated by SDMB are
reportedly landing in areas other than the landing zone as outlined in your [LOA] with [the ATCT and the
County]." The FSDO added that "prudence would almost certainly dictate that this...agreement to which you
are signatory was designed and installed into the LOA in order to ensure not just the safety of any
jumpers...but also to protect the safety of persons and property on the ground." The FSDO also offered the
resources of the FAA Safety team (FAASTeam).545
The letter also characterized the skydiving incidents at CRE as constituting "in their number and on the basis
of their repetitive nature, an egregious and callous disregard for the safety of not only the jumpers, but the
safety and security of persons and property on the ground." The FSDO added that the "evident disregard for
the well-being of persons and property represents an intolerable hazard and these events must be diminished
or eradicated without delay in the interest of operational and public safety." 546
The FSDO offered assistance to SDMB in mitigating the issues, but SDMB declined to pursue such options
and requested that SDMB provide "in writing, with [its] decision..." The FSDO also noted that "if [SDMB
chooses] to decline this offer... [SDMB] will be expected to provide an alternate means of correcting this
clear safety deficit..." by May 15, 2015.547 SDMB did not respond to the FSDO' s offer. The FSDO
characterized its interactions with SDMB as "unproductive in that SDMB brushed aside, rather forcefully,
"'FAA Order 5190.6B, § 14.3 at 14-3. .
559 FAA Order 5190.6B, pages 14-2, 14-4, and 14-5.
54° For example, the FSDO held safety meetings at the airport with operators (e.g., February 2014), which included SDMB, to discuss safety, and provided input to
the draft LOA (from February 2014 onward). See Background section.
"i FAA Exhibit 1, Item 1, Exhibit 1, page 242.
54' FAA Exhibit 1, Item 22A.
Page 62
any and all safety concerns raised by the FSDO." Finally, the FSDO stated that SDMB also refused to
cooperate with the FSDO personnel in the performance of their safety inspection duties.'"
In addition, the August 4, 2015 ESC/QCG Memorandum (Audit of Parachute Operations in the Myrtle
Beach, South Carolina) discussed the safety of skydiving operations at CRE and re-iterated FAA's concerns.
For example, the Memorandum noted that SDMB "is not in compliance with the LOA by consistently
violating the landing zone parameters" and that this "violation is a disregard for the well-being of persons
and property that represents an intolerable hazard and these events must be diminished or eradicated without
delay in the interest of operational and public safety..." The Memorandum also "recommend[ed] that the
LOA be terminated immediately until all parties can meet to mitigate the unsafe operation."'"
On September 1, 2015, the FAA's Director of Airport Safety and Standards (AAS -1) in FAA HQ wrote to
the County and raised the safety concerns regarding skydiving operations at CRE. Citing to safety incident
data, the letter urged the County "to consider whether immediate steps should be taken to mitigate unsafe
skydiving practices at CRE and the risks imposed upon other airport users, within the context of overall
airfield safety." The letter added that "these safety incidents may be indicative of serious systemic safety
issues involving skydiving operations (e.g., landings outside of the Drop Zone) at CRE" and that the County
should "use its authority to ensure safe on-airport skydiving landings, to include the DZ."55°
On September 17, 2015, the County responded to FAA's letter and concurred that there are "serious safety
concerns" at CRE with regards to skydiving operations. The County and adds that it has "been working
diligently and continuously with various FAA departments to ensure all avenues available to the airport to
mitigate any safety risks have been enacted." The County references the need to close the DZ and "implores
the FAA to provide their concurrence to this [closure] request...in order to immediately remedy what FSDO
described as "an egregious and callous disregard" for the safety of CRE users and operators."'
On September 30, 2015, the County again wrote to the FAA and stated that "it is a paramount concern for the
[County] to maintain safe operations for all aeronautical users and operators at [Airport]," and that it seeks to
"immediately discontinue skydiving operations at CRE, close the LZ, and withdraw from the existing LOA."
The County also provided details on additional skydiving incidents which occurred in September. The
County closed its letter by adding that "while it is fortunate that no injuries or property damage were reported
as the result of either incident, [the County] fears that it will only be a matter of time before we are writing to
inform you of a catastrophic result" and thus "reiterates its request for FAA concurrence to immediately
discontinue skydiving operations at CRE, close the LZ, and withdraw from the existing LOA."'
After reviewing the record in this case, including safety data and related FAA correspondence concerning the
safety of skydiving operations at CRE , the Director finds that at all levels — FAA Airports, FAA Air Traffic
(includes ATCT), and FAA Flights Standards — the unsafe skydiving operations by SDMB at CRE have
been substantiated. This record contains extensive safety data, which clearly show that unsafe conditions at
CRE, have, and continue to exist, despite SDMB assertions to the contrary.
h. Summary on Unreasonableness or Unjust Discrimination (Safety)
Contrary to SDMB's claims, the County has not circumvented the FAA "by enacting rules regulating
skydiving that are clearly within the exclusive jurisdiction of the FAA," nor are the County's actions
"disguised... safety rules in an attempt to circumvent the FAA."553 The Director finds that the County's
actions were implemented to mitigate valid and substantiated safety deficiencies directly related to SDMB
sw FAA Exhibit 1, Item 29.
55, FAA Exhibit 1, Item 31.
548
Mg
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skydiving operations at CRE. As such, the County has not imposed unreasonable restrictions on or unjustly
discriminated against SDMB, in violation of Grant Assurance 22, Economic Nondiscrimination, but has
acted in a manner consistent with the safety elements in Grant Assurance 22 (h) and (i).
C. Issue 2 - Whether the action taken by County with respect to Complainant's skydiving
operations at CRE are in violation of Grant Assurance 19, Operation and Maintenance
Grant Assurance 19, Operation and Maintenance, of the prescribed sponsor assurances, implements the
requirements of Title 49 United States Code (U.S.C.) § 47107(a)(7) and (a)(8). Assurance 19 provides, in
pertinent part, that the sponsor of a federally obligated airport agrees that it will operate the airport and all
facilities which are necessary to serve the aeronautical users at all times in a safe and serviceable condition.
FAA Order 5190.6B describes the responsibilities under Grant Assurance 19 and requires the sponsor to
protect the public using the airport by adopting and enforcing rules, regulations, and ordinances as necessary
to ensure safe and efficient flight operations. FAA Order 5190.6B also provides that when it becomes unsafe
for aeronautical purposes, the airport sponsor may have to discontinue an aviation use. It adds that there
should be rules covering vehicular traffic..., security, crowd control, access to certain areas, and fire
protection...." and that "sometimes, measures are needed to reduce the likelihood of a runway incursion." 554
As noted above, SDMB argues that the County imposed arbitrary and unreasonable restrictions and
requirements upon the Complainant's skydiving operations at the Airport under the pretext of safety.555
SDMB rejects that there are safety issues with its skydiving operations. In response, the County takes the
position that its efforts are consistent with Grant Assurance 19 and states that it is obligated under Grant
Assurance 19 to maintain "[t]he airport and all facilities which are necessary to serve the aeronautical users
of the airport...in a safe and serviceable condition," which extends to active runways and taxiways .556 In
complementing this, the County adds that it has "followed approved FAA protocols for safety risk
management, and is properly tracking safety incidents in order to develop means to mitigate the hazards they
present."557
A distinction is to be made between the safety elements in Grant Assurance 22 [(Grant Assurance (i) and (h)]
and safety under Grant Assurance 19. As discussed above, compliance with the safety elements in Grant
Assurance 22 relate to ascertaining whether the County's actions were unreasonable or unjustly
discriminatory with respect to SDMB's skydiving operations at CRE. Under Grant Assurance 19, however,
the Director determines whether the County's actions have sufficed to ensure safe skydiving operations. In
other words, the County implemented reasonable and non-unjustly discriminatory measures and actions as
attempts to enhance safety at CRE, but, under Grant Assurance 19, the question is whether those measures
and actions have been effective in ensuring the safety and efficiency of aircraft operations and to protect the
public using CRE. In mitigating skydiving safety, it is critical to mitigate the risks imposed upon other
airport users, as well as non-participant people and property on the ground.
The record shows that the County attempted to control the use of the airport in a manner that would eliminate
hazards to aircraft and people and structures on the ground.558 The underlying safety risks were coordinated
with and validated by FAA Flight Standards and Air Traffic Control. The County does state that SDMB has
attempted "to address and correct some conditions that have led to certain of these prior incidents at the
airport," but asks SDMB to give its "full commitment" in order to continue to allow SDMB to conduct
skydiving operations at CRE.559
FAA Order 5190.6B, pages 7-7, 7-8, and 7-9.
556 FAA Exhibit 1, Item 3, page 20 and 23.
"7 FAA Exhibit 1, Item 3, pages 1-2.
5" For example, see FAA Exhibit 1, Item 5, pages 20-23.
554
555
Page 64
As shown above, the record substantiates that, since 2013, a significant number of safety incidents have been
documented. The numbers have increased and so has the rate. As recent examples, on July 25, 2015, a total
of nine SDMB's skydivers landed outside the DZ. 560 On August 9, 2015 another five SDMB's skydivers
landed outside the DZ, one of which landed on a taxiway occupied by a taxiing aircraft.561 On September 5,
2015, five skydivers from SDMB missed the DZ and landed in the RSA562 for runway 5. One skydiver's
descent path took him into the approach of runway 5, causing an aircraft (N208TS) to perform a 360
maneuver on fmal.563
These incidents bring into question the County's effectiveness in complying with its Grant Assurance 19
obligation to take action to operate CRE in a safe manner. The fact remains that the County continues to
allow an unsafe condition related to a DZ on airport property to exist. The high number of routine
inadvertent landings outside the DZ by SDMB skydivers has created a serious safety concern that the
County, as the airport sponsor and under Grant Assurance 19, has the obligation to address this to whatever
extent is necessary. It should do so by coordinating with the FAA, utilizing reasonable protocols for safety
risk management, revising related procedures, and enforcing those requirements as needed. Skydiving
operations at CRE take place under LOAs, and these should be updated. Although 14 CFR Part 105 governs
parachute operations and, as mentioned, requires prior approval from the airport, it does not govern or
provide guidance for the landing areas located on airports nor does it include FAA licensing requirements for
skydivers.
Similarly, FAA's oversight and enforcement authority is limited. It generally covers Part 91564 and certain
elements of 14 CFR Part 105 and related activities by the certificated pilot, the aircraft itself, not the
uncertificated skydivers.565 The County, as the airport sponsor, bears the responsibility for taking measures
to manage the safety of its DZ. From a safety and compliance perspective, the County must assert its
authority in this matter to ensure safe on-airport skydiving landings — that is the issue.
While the FAA understands the complexities associated with the current skydiving operations at CRE,
including the contentious relationship between the County and Complainant, the existing unsafe conditions
must be corrected promptly. The supporting data and documentation in the record demonstrate that the
current skydiving activities cannot be conducted safely at CRE under the existing conditions, which rely,
largely, on the existing DZ and related procedures. The safety incidents that have been documented have
been left unattended for a long time, and must be mitigated.
Summary on Grant Assurance
19
Against this background, because safety has been significantly compromised by SDMB operations at the
Airport, and no satisfactory resolution has been achieved despite the actions of the County, the County must
take appropriate action such as closing the existing parachute DZ until acceptable risk mitigation measures
and revised procedures are considered and implemented. The Director fmds that although the County has
taken steps towards mitigating unsafe skydiving practices, in order to achieve an acceptable level of safety and
ensure the safe operation of the airport, protect the public and all aeronautical users at CRE, and to be
consistent with Grant Assurance 19, the County is required to take additional corrective actions. As the
airport sponsor, the County is obligated to ensure that operations at the airport are conducted with an
acceptable level of safety. This may require adequate procedures, adherence to relevant standards and
5"
See Table 1.
See Table 1.
"2 Runway Safety Area.
564 Such as Part 91.307 Parachutes and Parachuting.
565 For example, in a 1993 NTSB Order and Opinion concerning an emergency revocation order, the NTSB reviewed allegations of a violation of 14 CFR 91.9, 14
CFR Part 105.13, and 14 CFR Part 105.17(a) and (b) when the pilot of a skydiving aircraft was violated because "without prior approval from airport management,
allowed parachutists to jump from the aircraft...onto Tahlequah Airport." See Kelly Don Crittenden. v. FAA NTSB Docket No. 101-EAJA-SE-10865, 08/13/1993.
561
Page 65
guidance, and the ability to take additional actions when necessary, including enforcement. This is best
achieved by using safety management principles.
FAA will also offer any needed assistance from its Airports (ARP), FAA Air Traffic (ATO), and FAA Flight
Standards (AFS) offices to resolve this matter. Since this request for action by the FAA is based on
substantiated safety concerns, temporarily closing the DZ would not be considered contrary to the obligation
to provide access on reasonable and not unjustly discriminatory terms or conditions or other applicable
federal obligations. Failure to take corrective action, on the other hand, would be inconsistent with the
County's federal obligations, as discussed above.566
D. Safety Summary
The skydiving activities of SDMB have been documented to be inconsistent with and in contravention of the
applicable safety guidance and requirements including minimum standards, leases safety requirements,
requirements in the LOAs, ATC requirements, and 14 CFR Part 105. The findings regarding unsafe
conditions are based on reasonable evidence and demonstrate that airport safety will continue to be
compromised if SDMB is allowed to continue the aeronautical activity uncorrected.567 The background and
data in this case puts the responsibility for the occurrences on the operator. Of particular concern to the
Director is the fact that SDMB has denied that there are any safety deficiencies in this case and challenges any
FAA intervention or recommendations. This posture, indicative of a poor safety culture, compounds the
safety issue significantly. The Director finds that the County must immediately address safety problems at
CRE to ensure safe operations, and to protect the public and aeronautical users at CRE.
VII. FINDINGS AND CONCLUSION
Upon consideration of the submissions of the parties, and the entire record herein, and the applicable law and
policy and for the reasons stated above, the Director finds and concludes:
Issue 1 - The County is not in violation of Grant Assurance 22 Economic Nondiscrimination.
Issue 2 — Unless immediate steps are taken, up to and including closure of the DZ, the County will be
considered to be in violation of Grant Assurance 19 Operation and Maintenance.
ORDER
All Motions not expressly granted in this Determination are denied. The FAA has also determined that good
cause exists to take action deemed necessary to carry out the aviation statutes, including 49 U.S.C. § 40113,
§ 47101(a)(1), § 47104(a), and 49 U.S.0 § 47122. Therefore, the FAA requests that as soon as possible, the
County take action to mitigate the unsafe skydiving operations at CRE by:
•
(1) Taking appropriate action, such as closing568 the existing parachute DZ and rescinding related
approvals; and
•
(2) Submitting a corrective action plan incorporating acceptable risk mitigation measures and revised
procedures under which safe skydiving operations may resume.569
566 In addition to the discussion concerning Grant Assurance 19, and although not discussed as a separate issue in this case, the Director notes that the request for a
corrective action plan is consistent with Grant Assurance 29 Airport Layout Plan, implements provisions of 49 U.S.C. 4 47107(a)(16). This is because Grant Assurance
29 states that the "the sponsor will not make or permit any changes or alternations in the airport or any of its facilities that are not in conformity with the Airport
Layout Plan as approved by the Secretary and which might, in the opinion of the Secretary, adversely affect the safety, utility, or efficiency of the airport," and "if a
change or alteration in the airport or the facilities is made which the Secretary determines adversely affects the safety, utility, or efficiency of any federally owned,
leased, or funded property on or off the airport and which is not in conformity with the Airport Layout Plan as approved by the Secretary, the owner or operator
will, if requested by the [FAA], eliminate such adverse effect in a manner approved by the [FAA]..." See Grant Assurance 29 Airport Layout Plan.
''See FAA Order 5190.6B, page 8-8.
568 This temporary closure of the DZ may be necessary because of its physical characteristics (e.g., location, size), the procedures associated with it (e.g., LOA), and
its adequacy for all classes of skydivers (e.g., solo students, Class A) are all part of the safety deficiencies that have to be mitigated.
Page 66
RIGHT TO APPEAL
This Director's Determination, FAA Docket No. 16-14-05, is an initial agency determination and does not
constitute a final agency decision and order subject to judicial review. [14 CFR § 16.247(b)(2)]. A party to
this proceeding adversely affected by the Director's Determination may appeal the initial determination
pursuant to 14 CFR § 16.33(c) within thirty (30) days after service of the Director's Determination.
Oc.,
Randall S. Fiertz
Director, Airport Compliance and Management Analysis
Federal Aviation Administration
5"See
72
4
/
Date
Item 32. The information contained in item 32 includes recommendations, guidance, and mitigating strategies which may be useful in
addressing the situation at CRE.
Page 67
INDEX OF THE ADMINISTRATIVE RECORD
The following items constitute the administrative record in this proceeding:
FAA Exhibit 1
Item 1A
Part 16 Complaint dated February 24, 2014. (First Complaint).
Item 1B
Complaint Dismissal, dated March 18, 2014.
Item 1
Part 16 Complaint dated July 1, 2014, including Exhibits 1-5 with pagination. (Second Complaint).
Exhibit 1
•
•
•
•
E-mails between Complainant and Respondent (pages 1-25);
Grand Stand Space Use Permit (pages 26-21);
Certificate of Insurance, Skydive Myrtle Beach, 9-5-2013 (pages 33-63);
Skydive Myrtle beach Operations on the 17th -20th October 2013 (page 64-71);
E-mails between Complainant and Respondent and attached correspondence (pages 72323);
Exhibit 2
•
•
•
•
•
•
•
•
•
•
•
•
Letter of Agreement, January 1, 2012 (page 1-3);
Operating permit, August 1, 2013 (page 4-9);
E-mail from Mr. Aaron Holly to Mr. Robert Eastman (page 10-11);
HCDA Unusual Incident Report, 5/26, 2014 (page 12);
E-mail from David Y. Bannard to Mr. Robert Eastman, June 27, 2014 (page 14);
Office photography (page 15-16);
Affidavit of Aaron Holly, July 1, 2014) (page 17-18);
Letter of Agreement, 5/11/2012 (page 19-21);
Fire Code fine (page 22-24);
Voluntary Statements (page 25-26);
Letter from Myrtle Beach Aviation to Mr. Aaron Holly, November 27, 2013 (page 27);
Certified Mail Receipt (page 28);
Exhibit 3
•
•
•
•
•
Correspondence between Complainant and Respondent from April through June 2014
(pages 1-25);
Grand Strand Airport Space Use Permit (not executed) (page 26-33);
Memorandum, from Myrtle Beach Aviation all Customers, March 20, 2014 (page 34);
FAA letter dismissing Complaint, March 18, 2014 (page 35-36);
Letter from HCDA to FAA concerning Part 16 proceedings, March 7, 2014 (page 37-38);
Page 68
•
•
•
•
•
•
•
•
Letter from Complainant to FAA amending pleadings, March 6, 2014 (page 39-42);
Letter from HCDA to FAA concerning Part 16 proceedings, March 4, 20-14 (page 43-45);
Letter from Mr. Robert Eastman to Mr. David Y. Bannard, February 28, 2014 ()page 46-47);
Letter from Mr. David Y. Bannard to Mr. Robert Eastman, February 26, 2014 (page 48-49);
Part 16 Complaint filed by SDMB, February 24, 20-14 (page 50-53);
Letter from HCDA to SDMB, February 19, 2014 (page 54-57);
Grand Strand Airport Space Use Permit (unexecuted) (page 58-66);
Letters between Complainant and HCDA, February 2014 (page 67-88);
Exhibit 4
•
•
•
•
Eviction documentation, May-June 17, 2014 (page 1-4);
Letter from David Y. Bannard to Mr. Robert Eastman, April 28, 2014 (page 5-6);
Grand Strand Airport Space Use Permit, September 18, 2013 (page 7-11);
Operating Permit, August 1, 2013 (page 12-15);
Exhibit 5
•
State Court proceedings, February 2014 (page 1-36);
Item 2
FAA Notice of Docketing, July 28, 2014.
Item 3
Respondent's Motion to Dismiss, August 22, 2014, including exhibit A.
Exhibit A
•
Copy of Part 16 Complaint, dated July 1, 2014.
Item 4
Complainant's Statement of Material Facts, September 8, 2014, including Exhibits A, and B with pagination.
Exhibit A
•
State Court Proceedings documentation, July 25, 2014 (page 1-109);
Exhibit B
•
Letter from HCDA to Mr. Aaron Holly, July 11, 2014 discussing the occupancy of Hangar 7
(page 1-5);
Item 5
Respondent's Horry County Department of Airport's Answer and Affirmative Defenses to Complainant'
Skydive Myrtle Beach, Inc. 's Part 16 Formal Complaint and Statement of Material Facts, dated October 22,
2014.
Page 69
Schedule A
•
Statement of Facts with Answers (page 1-26), and attachments (page 3-185);
Item 6
Complainant's Reply to Respondent's Answer, November 3, 2014, including Exhibit A with pagination.
Exhibit A
•
•
•
•
•
Ramp diagram and photography (page 1-4);
Minimum Standards, January 1, 2015 (page 5-85);
E-mails between Complainant and HCDA, Oct-Nov. 2014 (page 86-93);
Aircraft Lease Agreement, Draft 7/31/2014 (page 94-105);
E-mail from Mr. Aaron Holly to HCDA objecting to certain Minimum Standards provisions,
November 3, 2014 (page 106-107 );
Item 7
Complainants' Motion to Supplement the Pleadings, dated November 10, 2014, including Exhibit 1.
Exhibit A
•
South Carolina State Case No. 2014-COP-26-1193;
Item 8
Respondent's Rebuttal in Support of Its Answer and Affirmative Defenses Complainant' Skydive Myrtle
Beach, Inc. 's Part 16 Formal Complaint and Statement of Material Facts, November 13, 2014, including
attachments.
Attachments
• E-mail from Mr. David Smith to Mr. Aaron Holly, November 12, 2014 (page 188-190);
• Unusual Incident reports and photography (page 191-194);
• Minutes Horry County Council Regular Meeting, May 20, 2014 (page 195-200);
Item 9
Complainant's Motion to Supplement the Pleadings, December 30, 2014, including Exhibit 1 with pagination.
Exhibit 1
• Minutes Horry County Council, April 4, 2014 (pagel-25);
• Chronological Table of Contents — Record of Appeal (page 26-38);
Item 10
Respondent's Letter in Opposition to Motion to Supplement the Pleadings, January 9, 2015.
Item 11
Complainant's Letter in Support of Motion to Supplement the Pleadings, January 14, 2015, including Exhibits
A and B with pagination.
Page 70
Exhibit A
•
•
•
Affidavit of Aaron Holly (page 1-8);
Letter to Mr. Aaron Holly from HCDA (no date) (page 12);
Horry County Hangar Use Permit for N2019X (page 13-20);
Exhibit B
•
Memo from HCDA revisions to Minimum Standards for Aeronautical Activities, November 6,
2014 (page 1);
Item 12A
Notice of Extension of Time, dated June 10, 2015.
Item 12B
Notice of Extension of Time, dated August 5, 2015.
Item 13A
Grant History Report, CRE Airport, dated June 10, 2010.
Item 13B
FAA Form 5010 for CRE.
Item 13C
Horry County Department of Airports Web Page.
Item 14
FAA Southern Region Letter of Inquiry, dated April 7, 2015.
Item 15
Horry County Letter to FAA Southern Region re: Letter of Inquiry, April 27, 2015.
Item 16
Relevant News Media.
Item 17A
Letter of Agreement (LOA) Parachute Operations at North Myrtle Beach, SC, May 11, 2012.
Item 17B
Letter of Agreement (LOA) Grand Strand Air Traffic Control Tower and Horry County Department of
Airports, January 1, 2012.
Page 71
Item 18
Reserved.
Item 19
Skydiving and Parachute Operations, P-8740-57 (1997).
Item 20
Horry County Administrative Committee Agenda, December 6, 2013 and Resolution R-13, December 10, 2013.
Item 21
CRE Safety Incidents data (Compiled August 18, 2015 by M. Vasconcelos, ACO-100).
Item 22A
West Columbia, South Carolina FSDO Letter to SDMB, May 6, 2015.
Item 22B
Memorandum Skydive Myrtle Beach Parachute Issues, from FSDO-13 to ASO-200, July 31, 2015;
(Updated 8/13/15).
Item 23
USPA Safety & Training Advisor Handbook, January 2015.
Item 24A
USPA Skydiving Aircraft Operations Manual.
Item 24B
2014-2015 Skydiver's Information Manual.
Item 25
Horry County Press Release, September 26, 2013.
Item 26
CRE Minimum Standards, January 20, 2015.
Item 27
Canopy Risk Quotient risk assessment tool.
Item 28
Accident and incident reports.
Page 72
Item 29
Letter from FAA Director of Airport Safety and Standards to the County, September 1, 2015.
Item 30
Letter from the County to FAA Director of Airport Safety and Standards, September 17, 2015.
Item 31
Letter from the County to FAA Director of Airport Safety and Standards, September 30, 2015.
Item 32
Skydiving safety recommendations, references, and guidance.
Page 73
0
41.

OCT 0 7 2015 VIA FEDERAL EXPRESS Robert G. Eastman

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