U.S. Department of Transportation Federal Aviation Administration Office of Airport Compliance and Management Analysis 

## OCT 07 2015 VIA FEDERAL EXPRESS Robert G. Eastman Eastman & 

### Associates, LLC P.O. Box 180 Charleston, SC 29402 David Y. 

### Barmard, Esq. Foley and Lardner LLP Ill Huntington Avenue Boston, MA 02199
Dear Messrs. Eastman and Bannard: 800 Independence Ave., S.W. Washington, D.C. 20591



### Re: Skydive Myrtle Beach, Inc. v. Horry County Department ofAirports, South Carolina, FAA DocketNo. 16-14-05 Enclosed is a copy ofthe determination ofthe Federal Aviation Administration (FAA) with respect to the above-referenced matter finding the Horry County Department ofAirports, South Carolina, not inviolation ofGrant 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 ofGrant Assurance 19 Operation andMaintenance. The reasons for the finding ofcompliance are set forth inthe 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 bythe 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 ofthe Director's Determination. Sincerely,

Randall S. Fiertz Director, Office ofAirport Compliance

and Management Analysis

Enclosure

### CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on October

# 7 , 2015, I caused to be placed in the United States mail (first class mail, postage paid) a true copy ofthe 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

For Respondent David Y. 

### Bannard, Esq. Jeffrey R. Blease, Esq. Jaclyn V. Pilch, Esq. Foley and Lardner LLP 111 Huntington Avenue Boston, MA 02199

Copy to: FAA Part 16 Airport Proceedings Docket FAA Airport Compliance and Management Analysis, AC0-100

Claudia Roberts Office ofAirport Compliance and Management AnalysisU<S, Department of l'runsportallon Fedlim:!l Avlmlon Admlnmrooon



### for Aiqxms pursuam to 

### 14 

### Sincerely. Office ofAirport Compliance and Management Analysis 

## 07

Bannard: County 

### Department

the Dit·,,c:tor• 

### initial determination to the FAA As:;ociate within 30 the ser·vH:er:n·rntv 

### that 6!1 

### 201 l cau.sed

**po:;ta1~e** 

### paid) a true copy ofthe adclresscd to adclressed to:

!

### 6 Airpmt 

### Prt•Ce,xliJ:lgs Airport Compliance

**Manag;ementt~nat**

### v'"· !00UNITED 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 complaintpursuant to 14 CFR Part 16 1 

### against Horry County Department ofAirports (County/Respondent/HCDA), the owner, and operator ofthe Grand Strand Airport (CRE/Airport), South Carolina.2 

### The complaint makes several allegations, all ofwhich are addressed bythe Director under Grant Assurance 22, EconomicNondiscrimination. 

### In addition, because the allegations involve the safe operation ofthe Airport and related actions by the airport sponsor, Grant Assurance 19, Operation andMaintenance 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 unreasonablyrestrictive and discriminatory as applied to an FAA-recognized aeronautical activity- skydiving4 

### The Complainant characterizes these actions bythe County as "spurious enforcement mechanisms that greatly exceed FAAregulations and guidance," and adds thatthe County "has utilized all the powers of governmentto remove SDMB from CRE in a discriminatory and illegal mannerthat is contraryto federal and state law." 5 

### SDMB also alleges that several actions bythe County are unreasonable and unjustly discriminatory, and contends that the County's actions constitute "harassment."6 

### In response, the County denies that its actions are contraryto its federal obligations and argues, instead, that they are consistent with said obligations. 7 

### The County affirms that "SDMB currently uses CRE as a base of operations for its skydiving business, and

...uses a designated [DZ]Iocated on airport property," but after its use permit "foruse ofHangar 7
...expired on January 31, 2014, SDMB has

...refused to enter into a valid

1 Title 14 ofthe Code of Federal Regulations {14 CFR) are the rules, regulations, and guidelines established bythe 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 1n the Complaint, SDMB names Robinson Aviation, Jnc. (RVA), the provider ofATC services at CRE, as a respondent. However, since RVA is notthe airport sponsor, the Director rejects any claims made against this entity within the scope ofthis 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:jfwww.rvainc.net/.

**~See** Applicable Law andPolicysection. 4 FAA Exhibit 1, Item 1, page 10. sFAA Exhibit 1, Item 6, page 2. 6 FAA Exhibit 1, Item 1, page 1. 7 FAA Exhibit 1, Item 3, pages 15-25. Page 1Skydive Myrtle Beach, Inc. v. Harry County Deportment of Airports, South Carolina (FAA Docket No. 16-14-05) 

### Space Use Permitfor the use ofthe hangar."' The County adds that SDMB has also refused to comply with the standards andprocedures to conduct safe skydiving operations. Specifically, the County states that SDMB "has been unable to ensure that its skydivers consistently land withinthe designated [DZ]," and has failed to "contactthe [the ATCT, Air Traffic Control Tower] before crossing active runways ortaxiways

..." Finally, the Countyrejects SDMB's claims that the County's actions to ensure safety are "harassment or discrimination." 9 With respectto the allegations presented in this Complaint, under the specific circumstances as discussed below and based onthe evidence ofrecord in thisproceeding, the Director finds that the County's actions are notin violation ofGrantAssurance 22, 

### EconomicNondiscrimination. The Director further finds that the actions bythe County concerning the use ofthe 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 Directorhas determined that skydiving operations at CRE are taking place despite unresolved safety deficiencies. The airport sponsor, FAAFlight 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 safetyprocedures and requirements in place at the Airport. Therefore, the Director fmds that, the Countymusttake additional corrective actions to correctthose safety deficiencies and to ensure compliance with Grant Assurance 19. Because safetyhas been compromisedby SDMB operations at the Airport, and existing safety deficiencies have notbeen corrected, the County musttake immediate action such as closing the existing parachute DZ and rescinding related approvals until acceptable riskmitigation measures andrevised procedures are considered and implemented. This temporary closure ofthe DZ is necessary because its physical characteristics (e.g., location, size) as well as related procedures (e.g., Letter ofAgreement orLOA) 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 Countymusttake action to further enhance the safety ofskydiving operations at CRE. The FAA's decision and supporting documentation, submitted bythe parties and reviewed bythe FAA, comprises the administrative record and is reflected in the attached FAAExhibit 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.

s FAA Exhibit 1, !tern 5, pages 1-2. 9 FAA Exhibit 1, Item 5, pages 1-2. Page2Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05)



# "' m

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## AIRPORT DIAGRAM AL-<>097 (FM) 

### GRAND STRAND 

### (CRB;) NORTH MYRTIE BEACH, SOUTH CAROUNA ATIS 119.625 STRAND TOWER* 124.6 257.6 GNOCON 121.8 257.6 

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## I 78°44'W 

## AIRPORT DIAGRAM 15064
Poge3 I 78°43'W NORTH MYRTLE BEACH, SOUTH CAROliNA 

### GRAND STRAND (CRE)Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina {FAA Docket No. 16-14-05) 

### II. PARTIES A. Airport Grand Strand Airport (CRE) 10 is a county-owned, public-use general aviation airport located in North Myrtle Beach, in Harry County, South Carolina. 11 Itis located between Highway 17B and the Intracoastal Waterway (ICW), 12 close to the Atlantic Ocean. Horry CountyDepartment ofAirports (HCDA/County), South Carolina, operates the Airport. 13 The County is also the owner and operator ofthree other airports located within itsjurisdiction. Theyare Myrtle BeachInternational Airport (MYR), ConwayHarry County Airport (HYW), and Twin CityAirport (5J9). 14 CRE covers an area of427 acres andhas one runway designated 5/23 with an asphalt surface measuring 5,997 by 100 feet. Forthe 12-monthperiod 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 designatedparachuting landing zone (aka Drop Zone, or DZ) on airportproperty, which is adjacent to the airport's runway and taxiway system (See Figure 1). It also has an operational contractATCT. 16 The development ofthe Airportwas financed, in part, with FAAAirport and ImprovementProgram (AIP) funding, authorized bythe

### AirportandAirwayImprovementActof 1982, as amended, 49 U.S.C. §47101, et seq. 17 Under the provisions ofthis Act, the County is obligated to complywith the FAA sponsor grant assurances and related Federal law, 49 U.S.C. §47107. Since 1982, the County has accepted 19 AlP grants for CREtotaling over $10.5 million. 18 AlP funds have been used for a myriad ofairportprojects including runway and taxiway rehabilitation, lighting improvementa, perimeter fencing, apron expansion, obstruction removal. Three AlP grants (2012-2014 ), totaling $2.6million, were used for a ramp rehabilitationproject at the Airport.I9 

### B. Complainant Complainant, Skydive Myrtle Beach (SDMB), located at CRE, is a commercial skydivingoperatorthat engages in the air transportation ofindividuals for the purpose ofskydiving, instruction in skydiving, and rental and sales ofskydiving equipment20 SDMB currently uses CRE (and its DZ) for its skydiving operations.21 

### Ill. PROCEDURAL HISTORY On February24,2014, SDMB filed a 14 CFRPart 16 Complaint with FAA.22 On March4, 2014, the Countymovedto dismiss the Part 16 Complaintwithout prejudice and onMarch 7, raised SDMB's failure to attach supporting documents. OnMarch 18,2014, the FAA dismissed SDMB's Part 16 as incomplete.23 On July 1, 2014, SDMB re-filed the Complaint and stated thatthere was "no other optionthan for SDMB to refile its complaint for resolution byFAA" and that "without FAA intervention for the reasons enumerated

10 Sometimes also referred to as the "'North Myrtle Beach Airport." 11 FAA Exhibit 1, Item 13B 12 FAA Exhibit 1, Item 13C. H In this decision, the Director refers to HCDA as the "County." 14 FAA Exhibit 1, Item 6, page 3. 15 FAA Exhibit 1, Item l3B. 16 FAA Exhibit 1, Item 13B. 17 The Airport Improvement Program {AlP) 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. J.B See FAA Exhibit 1, Item 13A, page 3. 19 FAA Exhibit 1, Item 13A. 20 Parachuting and skydiving are similar activities. For the purpose ofthis 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 over500 skydiving aircraft, referred to as jump planes. 21 FAA Exhibit 1, Item 2, page 1. 22 FAA Exhibit 1, Item 1A. 23 FAA Exhibit 1, Item 1, Item 18. Page 4Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05)



### ...there is no reasonable prospect for practical, equitable, and timelyresolution." 24 

### OnJuly 28, 2014, the FAA issued a

### Notice ofDocketing.25 

### This was followed onAugust 22, 2014 bythe County filing its 

### Respondent'sMotion to Dismiss, 26 

### and SDMB filing a 

### Complainant's Statement of Material Facts on September 8, 2014. 27 

### On October 22, 2014, the County filed its

### Respondent'sAnswer andAjfirmativeDefenses. 28 

### On November 3, 2014, SDMB filed its 

### Complainant'sReply, and onNovember 10,2014, SDMB filed a 

### Complainants' Motion to Supplement the Pleadings. 29 

### This was followed onNovember 13, 2014, bythe County filing its 

### Rebuttal. 30 

### On December 30,2014, SDMB filed a 

### Complainant'sMotion to Supplement the Pleadings. This was followed on January 9, 2015, bythe County filing a 

### Letter in Opposition to Motion to Supplement the Pleadings. 31 

### 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 ofAgreement (LOA) 

### Concerning the ControlJurisdiction of AirportMovementAreas at CRE. The LOA defined the responsibility for the control ofaircraft, vehicular, and pedestrian traffic within the airport movement areas at CRE. The LOA's scope was limitedto "the MovementArea

...involving aircraft, vehicle, pedestrian, or object on the ground that would create a collision hazard and/or loss ofseparation with an aircraft taking off, landing, or taxiing." 34 

### In April2012, SDMB negotiated a lease for Hangar 7 at CRE in order to conduct parachute operations for a period ofeight 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 defmed the location ofthe 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, orramp area. "37 

### On May 19, 2012, Grand Strand Aviation, d/b/aRamp 66, LLC, as the airport operator (operating the airport on behalfofthe County) entered into an agreement with SDMB to conduct skydiving operations atthe Airport. The agreement, with a 2020 expiration date, contained twenty (20) terms/conditions, covering a myriad ofissues, including rates and charges, liabilityrequirements, and compliance with applicable local, state, and the FARs. One ofthe 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 parachutejumping or similar operation anywhere within the County

...for

...8 years." 38 

### OnAugust 1, 2013, Ramp 66, sold its leasehold interest in operating the airport back to the County and the Countyresumed control ofthe Airport. Fromthat date on, "all tenants were askedto sign a temporary

### Space

**4** FAA Exhibit 1, Item 1, page 3. 2s FAA Exhibit 1, Item 2. zo FAA Exhibit 1, Item 3. Z 7 FAA Exhibit 1, ltem 4. 2e FAA Exhibit 1, Item 5. 29 FAA Exhibit 1, Item 7. 30 FAA Exhibit 1, Item 8. 31 FAA Exhibit 1, Item 10. n FAA Exhibit 1, Item 11. 33 FAA Exhibit 1, Item 12A and 12B. 34 FAA Exhibit 1, Item 15 and FAA Exhibit 1, Item 178. 35 FAA Exhibit 1. Item 1, page 3. 36JFAA Exhibit 1, Item lA. 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 Excfusive Rights. However, because the agreement is now extinguished bythe County's takeover ofthe airport, the Director will not revisit this issue. PageSSkydive Myrtle Beach, Inc. v. Harry County Department of Airports. South Carolina (FAA Docket No. 16-14-05) 

### Use Permit with a six-month term, with the intent that long-term leases would thereafter be negotiated

...these Space Use Permits were offered ontemporary bases because South Carolina lawrequires 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 complywith all safety and securitypolicies/directives as established bythe Airport."40 

### As a result, on August I, 2013, the Countyand SDMB entered into an OperatingPermit (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 orwhich may behereinafter be [sic] enacted or adopted." 41 

### The OperatingPermit also provides for termination ifthe operatorviolates "any [ofthe County's] rule, regulation, orrequirement related to aircraft operation or safety

..."42 In 

### August 2013, the County informed SDMB that itwould have to double its liabilitypolicy coverage to $2,000,000 and pay $1,200 per month for Hangar 7.4' On September 13, 2013, the County and SDMB entered into a temporarySpace Use Permit allowing SDMB to occupyHangar 7 through January 31,2014. 44 

### On September26, 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 "projectis scheduled to begin during the first week ofOctober 2013, andbe completed bythe end ofFebruary 2014."45 

### As part ofthis effort, manytenants and airport operations had to be temporarily relocated over the course oframp repairs,46 

### funded inpart with FAA grant funding to rehabilitate the ramp. 47 

### On October 15,2013, the ATCTnotified SDMB ofa 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 hospitaL49 

### Also in October 2013, and following an inspection by a North Myrtle Beachfire inspector, SDMB was informed that several electrical modifications/repairs had to bemade at its facility to avoid a fme orviolation. Accordingto SDMB, "due to the County's failure to correct the electrical deficiencies, SDMB was issued a fine for the violations bythe North Myrtle BeachFire Department and paid a $205 dollar fine.

# 5° On November 27, 2013, the County wrote to SDMB about anunrestrained dog roaming in the active aircraft operating areas ofthe 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 therevocation ofSDMBs OperatingPermitand Space Use Permit.51 

### OnDecember4, 2013, the South Carolina Flight Standards District Office (FSD0-13) notified operators at CRE that on February 19, 2014, it would be conducting the annual meeting for all operators to discuss "safetyissues concerning bannertow operations, parasail activities, parachute activities

..." and other providers. The FSDO notedthat operators "must attend the meeting" and provide "safetyplans for [their] operations." 52 

### OnDecember 10,2013, the County's Council considered Resolution R-13. This resolution

39 FAA Exhibit 1, Item 5, pages &-.9. See Affidavitof Aaron Holly, FAA Exhibit 1, Item 11, Exhibit A, page 1. 4

### °

FAA Exhibit 1, Item 5, page HCDA-00001. 41 FAA Exhibit 1, Item 3, page 8. 42 FAA Exhibit 1, Item 1, Exhibit 2, page 7. 43 FAA Exhibit 1, Item 1, page4, and Exhibit 1, pages 14-15. 44 FAA Exhibit 1, Item 1, Exhibit 3, page 54-57. 45 FAA Exhibit 1, Item 25. 46 FAA Exhibit 1, Item 5, page 2. 47 FAA Exhibit 1, Items, page 2. 48 FAA Exhibit 1, Item 1, Exhibit 1, page 86. 48 FAA Exhibit 1, Item 3, page 9. so FAA Exhibit 1, Item 1, page 4, and Exhibit 2, pages 22-24. 51 FAA Exhibit 1, Item 1, Exhibit 2, page 27. 52 FAA Exhibit 1, Item 1, Exhibit 1, page 131. Page 6Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05)


### was to "authorize the renewal ofa Space Use Permit for Skydive Myrtle Beach, LLC at Grand Strand Airport." 53 

### OnJanuary 6, 2014, SDMB denied the allegations in the County's November 27, 2013 letter. 54 

### OnJanuary 21,2014, the ATCT notified SDMB that "[oftenjumpers]land outside ofthe landing zone," and that "whenthe season starts with bannertow and helicopterrides, [it is] going to be unsafe to conduct both operations atthe same time

..." The ATCT reiterated that the LOA "

...does not speak oflanding anywhere otherthan the designated landing zone," and thatthe ATCT is tasked "withthe safety ofall

...users. "55 

### OnJanuary 23, 2014, SDMB requested a meeting with the ATCT to address its safety concerns and discuss operations. In

### response, the ATCT indicatedthat the County should also be a partyto the discussion. In

### that communication, SDMB stated thatpursuantto its OperatingPermit, it was "permitted to land anywhere within 

### 5 (five) miles ofthe airport, ifnecessary." 56 

### SDMB also requested that at the meeting, legal counsel be present in order "to come to a mutually beneficial agreementprior to any irreparable financial harm suffered by [SDMB] based onunregulated safety violation concerns orperceived possibilities ofsuch." 57 

### OnJanuary 26, 2014, the ATCT manager notified SDMB that on that day, "people [walked] on the taxiways and [drove] golfcarts on the taxiways without getting permission from the tower first." The ATCT manager also noted thatthose actions are "against the rules as we have spoken about this before. In 

### an effort to keep the operation safe andbythe rules can you re-briefyour folks not to enter a taxiway or runway without [first contacting the ATCT]." The ATCT manager added that "the rules for enteringthe taxiway don't have exceptions," and that "we maytalk with the runway incursion [FAA Runway Safety] folks again [in reference to] the golfcarts and

...today."58 

### OnJanuary 31,2014, SDMB's 2012 Space Use Permit expired.59 

### OnFebruary 3, 2014, SDMB was contacted bythe County about another Vehicle/Pedestrian Deviation (VPD) complaint bythe ATCT

.60 

### OnFebruary I, 2014, an FAA Airport Certification Safety Inspectornotified the County that the FAAhad received "another [VPD] incursion report
... for CRE," and asked the Countyto "explain [its] response and what action has been taken to curtail this activity."61 

### OnFebruary 4, 2014, and following notification bythe ATCT, the FAArequested information from the County regarding the January 26, 2014 VPD by SDMB (see above). In

### turn, the County asked SDMB for details onthe incident, to which SDMB admitted that its vehicle had "notcontacted" the ATCT butthat it "wouldrequest permission prior to entry on taxiway in future." 62 

### OnFebruary 7, 2014, SDMB metwiththe ATCT to discuss the ATCT's complaints to the FAA. 63 

### Atthe meeting, the ATCT advised SDMB about the LOAbetweenthe County and the ATCTwherebyprocedures for vehicular and pedestrian entry into 'active areas' have communication protocols. SDMB agreed to comply with these provisions, butrequested a copy ofthe LOA so that it could implement internal procedures to meetthe terms ofthe LOA. Following the meeting, the ATCTprovided SDMB withthe reference to 14 CFR § 139.329 which was cited as the basis for the complaints to the FAA and the County.

53 FAA Exhibit 1, Item 20. 54 FAA Exhibit 1, Item 1, Exhibit 1, pages 109-110. 55 FAA Exhibit, Item 3, page 9. 56 See reference in FAA Exhibit 1, Item 1, Exhibit 1, page 148 (LOA). 57 FAA Exhibit 1, Item 1, Exhibit 1, pages 111-114. 58 FAA Exhibit 1, Item 1, Exhibit 1, page 117. 59 FAA Exhibit 1, Item 3, page 1. 6

### °FAA Exhibit 1, Item 1, Exhibit 1, page 130. Gl FAA Exhibit 1, Item 1, Exhibit 1, page 138. 52 FAA Exhibit 1, Item 1, Exhibit 1, pages

**154~158.** 63 FAA Exhibit 1, Item 1, page 5. Page 7Skydive Myrtle Beach, Inc. v. Horry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) 

### Also onFebruary 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 ofa proposed and revised LOA. 65 

### The draftLOA provided that "parachutists are authorized to land in the defmed [DZ] only and are not authorized to land on anyrunway, taxiway, orramp area." The draftLOAreiterated "[ATCT's] ground communication" protocols, requiring SDMB to "notify [the ATCT] priorto crossing any identified active taxiway orrunway during operationalhours of [the ATCT]." 66 

### As part ofthis process, the FSDO provided input to the draft LOA.67 

### On February 14,2014, and concerning 14 CFR § 139.329 reference provided byFAA, the ATCT stated that it "[goes] along with the LOA with the airport." SDMB concurred and added that "

.. .in conjunction with the LOAthis makes complete sense...nowthat we have a copy, we have implemented SOPs here where this should no longer present itselfas 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 itplanned to do all it can "to make this work for all ofus."69 

### On February 19, 2014, SDMB sent its proposed LOA to FAA Air Traffic.70 

### Also onFebruary 19, 2014, the Countynotified SDMB that its Space Use Permithad expired on January 31, 2014. The Countyprovided a new Space Use Permitfor SDMB's review and acceptance. The County's letter communicating this offer included a list ofmultiple instances (1

### 0) ofunsafejumpingpractices, as well as vehicle and pedestrian incursions onto runways and taxiways, some ofwhich necessitated FAAreporting and investigation.71 

### The County stated that these incidents constituted a violation ofSDMB's existing (albeit expired) Space Use Permit and its OperatingPermit72 

### Despite this, the County clarified that although it "is unwilling to offer SDMB a leasehold interest in the

... hangar [Hangar 7] facility atthis time," as an alternative, it "is willing to enter into a new, short-term Space Use Permit, with the understanding that a violation ofany 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:

• Alljumps in compliance with LOA betweenthe County, Air Traffic, and SDMB; • No unauthorized vehicles will be permitted inside the security fence; • Noflammable substances permitted in any space subject to the agreement; • Fees: $1,200/month or 24% ofgross revenues, whichever is greater; and • Any breach ofthe agreement by SDMB will provide grounds for immediate termination and SDMB will vacate the premises within 24 hours afterbeing provided written notice ofsuch termination.74 

### The February 19, 2014letter also notedthat,

64 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. 65 FAA Exhibit 1, Item 1, page 5. 66 FAA Exhibit 1, Item 1, Exhibit 1, page 165. 67 FAA Exhibit 1, Item 1, Exhibit 1, page 281. 68 FAA Exhibit 1, Item 1, Exhibit 1, pages 191-192. 69 FAA Exhibit 1, Item 1, Exhibit 1, page 197. 7

### °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. 71 FAA Exhibit 1, Item 1, Exhibit 3, pages 54-57. n FAA Exhibit 1, Item 3, pages

**12~13.** 73 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." Page8Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) 

### [I]n light ofthe fact that SDMB is currently occupying Countypropertywithout authorization, the new Space Use Permit mustbe signed and returned to [the County] within 72 hours from the time it is delivered. IfSDMB declines to signand return this Permit withinthe time setforth, you will need to vacate the premises immediately, as [the County] will change the locks and deny access to the premises as ofthe close ofbusiness on Saturday, February22.75 

### The County addedthat it certainly [hoped] to be able to maintain an on-goingrelationship with [SDMB's] skydiving operation, as we believe that such a properly conformingbusiness is a welcome and beneficial use of the County's [Airport]. We also understand that based uponrecent measures on yourpart, you have attempted to address and correct some conditions that have led to certain ofthese prior incidents at the airport. The County is appreciative ofthese efforts, butrequires yourfull commitment in order to continue to allow SDMB the use ofCounty-owned property.76 

### OnFebruary 21, 2014, SDMB replied to the County letter, denied violating any regulation, asked for a copy ofthe County's operating regulations or authorities, and sought to work outthe issues between the County either informally or in a court. 77 

### On February24, 2014, SDMB filed a Formal Complaint with FAA.78 

### OnFebruary 26, 2014, the County informed SDMB that it did not engage in "good faith" negotiations prior to filing its 14 CFRPart 16 complaint andrequested that it be withdrawn. Byletter dated February28, 2014, SDMB argued that the Part 16 Complaintwas discrete from its state court complaint, indicated its willingness to resolve the matters, but declined to withdraw its complaint before the FAA.79 

### OnMarch 4, 2014, the Countymoved to dismiss the Part 16 Complaint. On March 18, 2014, FAA dismissed the Complaint for incompleteness80 

### OnMarch 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 notbeen rescheduled to date. 82 

### The County denies this. 83 

### SDMB also reported that on April3, 2014, the County dumped approximately six (6) yards ofpeatmoss on the SDMB staffparking lot, illustrated by photographs in the record. 84 

### OnApril!, 2014, the Countynotified SDMB that, concerning the on-going construction atthe airport, it would be "acceptable to move the [DZ] backto the locationnorth ofthe parking ramp...the construction equipment and all movable obstacles have been removed." 

### In addition, the County re-iterated that SDMB's operations "mustbe conducted in accordance with the LOA

...with

... date of5/11/2012." 85 

### OnApril4, 2014, the County presented draft minimum standards to the Administrative Committee ofthe Harry County CounciL86 

### The minimum standards covered several issues including rules, regulations, insurance requirements, limitations, and operating requirements. As part ofthese deliberations, the County

75 FAA Exhibit 1, Item 1, Exhibit 3, pages 56-57. 76 FAA Exhibit 1, Item 1, Exhibit 3, pages 57. n FAA Exhibit 1, Item 1, page 6. Note thatthe Complainant states that the reply occurred on February 21, 2012. Given the context, the director assumesthat this was unintentional error and that the correct date for this event is February 21, 2014. 1s FAA Exhibit 1, Item 1A.

**~** FAA Exhibit 1, Item 1, Exhibit 3, page 48. 80 FAA Exhibit 1, Item 1, Exhibit 3, pages 35-44. Bl FAA Exhibit 1, Item 1, Exhibit 3, pages 34. s2 FAA Exhibit 1, Item 1, Exhibit 3, pages 28. The apparent failure to follow through with driver training is not per sea violation ofthe County's federal obligations, but the Director notesthat 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, !tern 5, page HCDA-000179, and 180. 84 FAA Exhibit 1, Item 1, Exhibit 1, page 234-235 (photographs). 85 FAA Exhibit 1, Item 1, Exhibit 1, page 232. 86 FAA Exhibit 1, Item 10, page 2. Page 9Skydive Myrtle Beach, Inc. v. Horry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) 

### 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 inplace as quickly as possible at those GA airports, especially at (CRE]." 87 

### On April 5, 2014, the pilot ofa 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 myposition." The pilotnoted thathe "applied brakes and reached for the mixtnre to cut offthe motor, in an attempt to not have [the] prop turning if [the skydiver] hit my aircraft." Hereported that "ground control quickly warmed me about [the skydiver] as he closed on myposition within 30 feet.

... [the Skydiverpulled left as he was travelling down taxiway B and landed in the drainage ditchjust offthe runway...other solo skydivers then descended along the edge ofthe ramp approximately 200 feet to my left

...ground control again warned me thatthey were 'landing everywhere

...' the controller was less than pleased." 88 

### OnApril 7, 2014, the County offered reducing the monthly lease percentage ofgross from 24% to 10%. This same correspondence covered several issues and conditions and included a reference to eviction proceedings ifthese were not accepted by SDMB.89 On April 12, 2014, SDMB threatened to file yet another 14 CFRPart 16 complaint with the FAAbecause one ofits aircraft was held up by the ATCT for a bannertowing operation.90 That same day, the ATCT manager indicatedthathe 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 ofthe above mentioned April 7, 2014 correspondence.93 The letter further stated, "SDMB maynot 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, includingthe landing zone as a transient operator." However, the County added "without a valid 

### Space Use Permit, SDMB must vacate HangarNo. 7 andmay notbase its aircraft at CRE."94 

### OnMay 10,2014, the ATCT notified SDMB it was forwarding to FAA a complaint for an active taxiway incursion.95 That same day, the County wrote to SDMB that the "FAAreached out to us and we'rerequired to respond with a plan, hopefully together, to avoid whatthey see as a serious safety concern." In

### response, SDMB statedthat it operates "within the strict guidelines ofall F ARs 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 ifone 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 ofthem 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 letterto the FAA'sAtlantaAirportDistrict Office (ADO) to report concerns overtwo safety incidents (landings outside the DZ) which occurred at CREonApril24 and May

87 FAA Exhibit 1, Item 9, page 6-7. 88 FAA Exhibit 1, Item 5, page HCDA-000176. 89 FAA Exhibit 1, Item 1, Exhibit 3, page 23. 90 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. 91 FAA Exhibit 1, Item 1, Exhibit 1, page 242. 92 FAA Exhibit 1, Item 1, Exhibit 3, pages 21-22. S3 FAA Exhibit 1, Item 1, Exhibit 3, page 19. 'l4 FAA Exhibit 1, Item 1, page 7-8. 95 FAA Exhibit 1, Item 1, page 8. 96 FAA Exhibit 1, Item 1, Exhibit 1, page 251. Page 10Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) I0, 2014. The County also further outlined its plans to temporarilymove the DZ (also discussed onApril!) to accommodate airport construction but expectedthatthe "errantjumps would cease." 97 On May 19, 2014, the County requested information from SDMB in order to respond to an FAA

### Letter of Investigation (LOI) regardingthe unauthorized runway crossing ofMay 10.98 The County took the position that it was "reaching the end ofwhat we can do to curtail this issue," and that [SDBM] had "to showtangible evidence that we're working towards a solution." 99 Inresponse, SDMB stated that it "always utilize[d) radio communications with the tower," to whichthe Countyrepeated that the "FAAreached outto us and we're required to respond with a plan, hopefully together, to avoid what they see as a serious safety concern." 100 The next day, May20, 2014, the Horry County Council enactedminimum standards for CRE, ConwayHorry County Airport (HYW), and Twin City Airport (519)." 101 The minimum standards, included requirements applicable to all aeronautical operations at CRE, including commercial skydiving operations.l02 On May 22, 2014, SDMB gave a counter offerto the above mentioned County's

### Notice of Termination involving HangarNo. 7 and again requested a meeting to finalize the LOA. 103 That same day, some of SDMB's skydivers landed on ornearthe beach, instead ofin the designated landing zone at CRE, as expected. As a result, the ATCTrequested SDMB to inform the ATCT in advance ifits skydivers were going to land somewhere otherthan the DZ, so thatit would be able to advise other aeronautical users. 104 Two days later, onMay 24, 2014, the ATCT wrote yet againto SDMB noting skydivers had crossed the runwaywithout coordinating with the ATCT. 105 On May 28, 2014, the Countyrejected SDMBs counter offer and demanded SDMB to vacate HangarNo.7 and remove its aircraftfrom CRE. 106 On May29, 2014, SDMB offeredmediation with the County in an attempt to resolve the issues. The following day, May 30, 2014, the County conditionallyaccepted SDMBs offer to mediate. 107 On June 5, 2014, the County conditionally accepted SDMBs offer to mediate with several modifications but also filed an

### Application for Eviction inMyrtle BeachMagistrate's Court. 108 OnJune 7, 2014 FAAFSDO inspectors conducted a spot inspection ofSDMB's facilities. SDMB states that "during the inspection, the FAAinspectors statedthat 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 approximatelytwo hours. During the inspection, SDMB business was suspended." 109 OnJune 10,2014, SDMB was provided with a revised draft ofthe LOA which incorporated input from FAA 

### Air Traffic and Flight Standards. SDMB objected to some ofthe provisions, including penalty and reporting provisions. SDMB also objected to the LOA's provision documenting safetyhazards which states "within 24 hours ofanyparachutejumperlanding outside ofthe [DZ] or other deviations bythe parachute operation

... [ATCT] shall notify [the County], in writing, ofeach incident

...the incident reporting form shall be furnished by [the County]." 110

97 FAA Exhibit 1, Item 5, page HCDA-000154. 98 FAA Exhibit 1, Item 5, page HCDA-000158-159. 99 FAA Exhibit 1, Item 1, Exhibit 1, pages 245. 100 FAA Exhibit 1, Item 1, Exhibit 1, page 251. 101 FAA Exhibit 1, Item 11, page 2. 10l FAA Exhibit 1, Item 15, page 2. 103 FAA Exhibit 1, Item 1, page 8. 104 FAA Exhibit 1, Item 1, Exhibit 1, page 244. 105 FAA Exhibit 1, Item 1, Exhibit 1, pages 257 and 268 106 FAA Exhibit 1, Item 1, Exhibit 3, pages 14-15. 107 FAA Exhibit 1, Item 1, Exhibit 3, page 19. 106 FAA Exhibit 1, Item 1, page 8. 109 FAA Exhibit 1, Item 1, Affidavita[ Aaron Hofly. 11

### °

FAA Exhibit 1, Item 1, Exhibit 1, pages 149-151. Page 11Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) 

### The next day, June 11,2014, the ATCT manager at MYR, and within the context ofa communicationwith SDMB on the subject ofthe draft LOA, stated "Iwant to go on record and let you knowthat the safety of parachute operations is a major concern in the National Airspace System. More specifically, it is currently one ofthe 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 ofthe existing LOA until the matter could be finalized. Incidentreporting was discussed, and the Countynoted that the ATCT was reporting all skydiver taxiway crossings to the County as the Countyhadrequested.l 12 

### On June 25, 2014, the parties met yet again to discuss the draft LOA.U3 

### 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 ATCTreferred SDMB to the FAA. 114 

### That same day, the Countynotified SDMB that "incidents involving skydivers that missed the [DZ]

...can pose a serious safetythreat to the users ofCRE," and expressed its desire to "worktogether to improve the safety at [CRE]." 115 

### The County added thatthe 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 incidentreporting system for all events that create an unsafe operating condition at the airport." 116 

### On July 1, 2014, Complainant filed a second 14 CFRPart 16 Complaint withthe FAA. SDMB stated that there was "no other optionthan for SDMB to refile its complaint for resolution byFAA" and that "without FAA intervention for the reasons enumerated below, there is no reasonable prospectfor practical, equitable, and timelyresolution ofthe dispute." 117 

### OnJuly II, 2014, the Countywrote to SDMB to raise its concern overthe "continued occupation ofHangar 7." The Countynoted that the Space Use Permit had expired and that SDMB "has refusedto sign a second Space Use Permit" and instead "file suit in South Carolina state court as weII as filed two separate Part 16 complaints with the [FAA]." 118 

### On July 28, 2014, the FAA accepted the Complaint and issued aNotice of Docketing. 119 

### On October 30, 2014, the County held a public meeting to discuss the minimum standards." 120 

### 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 writtenmore efficiently for safety purposes." SDMB objected to several other aspects ofthe minimum standards including the use ofa space use permit instead ofa lease, insurance requirements, use ofvehicles at the airport, planned events, restrictions on alcohol use, and the requirement for a safety and efficiency study. 121 

### InNovember 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 supplementthe record withthe FAA pursuant to 14 CFR 

### § 16.23(j). 123

111 FAA Exhibit 1, Item 1, Exhibit 1, page 311. m FAA Exhibit 1, Item 1, page 9. 113 FAA Exhibit 1, Item 3, page 14. 114 FAA Exhibit 1, Item 1, page 9. 115 FAA Exhibit 1, Item 1, Exhibit 1, page 10. 116 FAA Exhibit 1, Item 3, pages 14·15. 117 FAA Exhibit 1, Item 1, pages 3. 118 FAA Exhibit 1, Item 4, Exhibit 4, m FAA Exhibit 1, Item 2. l:W FAA Exhibit 1, Item 6, page 7, note 14. 121 FAA Exhibit 1, Item 6, Exhibit A, page 106. 122 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 Skvdive Myrtle Beach. LLC} v. Horry County Horrv County Department ofAiroorts H. Randoloh Heidi Pat Apone. Tim Jackson. and Jack Teal Case No. 2014-CP-26-1193, dated October 13, 2014, and filed October 17, 2014. 123 FAA Exhibit 1, Item 7, pages 1-2. Pagel2Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) OnDecember 31,2014, SDMB filed 

### aMotion to Supplement the Pleadings objecting to the County's adoption and enforcing ofregulations, as well as state law, County legislative,judicial, and executive "irregularities."124 On January 9, 2015, the Countyfiled 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 OnJanuary 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 thatthe County mishandledthe manner inwhich itmade the minimum standards known to SDMB. 126 On January 20, 2015, the County Council approved the minimum standards under Ordinance Number 115-I4. 127 Aware ofthe ongoing safety issues concerning skydiving operations at CRE, on April 7, 2015, the FAA's Southern Region Airports Division sent a letter to the Countyraising 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 safetytrend 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 letterreferenced eight separate safety events, which had occurred at CREbetween November 10, 2013 and March 28, 20I

### 5. The FAA letterreferenced the federal obligation requiring "the Countyto ensure that the airport and all facilities necessary to serve the aeronautical users ofthe airport are operated at all times in a safe and serviceable condition" and includingthat "the Countymaynot cause orpermit any activity or action on the airport which would interfere with its use for airportpurposes." 129 The FAA asked the County to respond within 15 days and address (1) rules and regulations to mitigate the safetyofground operations inthe airport movement area (andtheir update and enforcement), (2) training for the ground users with access to the movement area, (3) details concerning a risk-based safety plan. 130 OnApril 27, 2015, the Countyresponded to FAA'sletter. The County stated that 

### it "shares [FAA's) concern regarding the number ofVPDs" and that "each and every VPD is related to
... [SDMB]." 131 In its letter to the FAA, the County asserted:

• Although ithas undertaken a series ofactions, the onlyreal reduction in the number ofVPDs and other incidents involving skydivers occurred when SDMB was operating sporadically due to theirturnover in aircraft and maintenance issues (October 2014-February2015), but after SDMB resumed full operations, numerous VPDs are once again being reported. 132
• Each and every one ofthe VPDs involves one or more skydivers, and in each case, the skydiver in question failed to land withinthe designated [DZ] and that more than 90% ofthe safety incident reports involving one or more skydivers associated with SDMB. 133
• The Countyhas soughtto enter into a newLOA, but SDMB objected to certain provisions, notably, the provision imposing penalties for failure to comply with existing policies, including VPDs. 134

124 FAA Exhibit 1, Item 9, pages 2-9. m FAA Exhibit 1, Item 10, pages 1-4. 126 FAA Exhibit 1, Item 11, pages 1-6. 127 FAA Exhibit 1, Item 26. 12a FAA Exhibit 1, Item 14. 129 FAA Exhibit 1, Item 14. uo FAA Exhibit 1, Item 14. 131 FAA Exhibit 1, Item 15, page 1. 132 FAA Exhibit 1, Item 15, page 1. 133 The County also states that "since the very first VPD, [CountyJ staff has repeatedly offered trainin& warnings, and provided 50MB 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 potentia! causes of such incidents." FAA Exhibit 1, Item 15, page 1. Page13Skydive Myrtle Beach, Inc. v. Harry County Department of Airports. South Carolina [FAA Docket No. 16-14-05)



### • Because ofthe 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 bythe County. 135



### • SDMB denies that any incursions have occurred, asserting that skydivers are not pedesttians, 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 theregular and frequent failure ofSDMB 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 safetyrestrictions on skydiving, including the following (1) closingthe DZ and possibly relocating itto a location where interference with aircraft traffic can be minimized or eliminated (County's preferred option); (2) notpermitting SDMB to operate ifit continues to violate rules and regulations; (3) permitting operations only in lowwind conditions; and (4) requiring a USP A license demonsttating a certain minimum level ofskill, or skydive only as tandemjumps. 138 

### The Countyresponded to each ofthe questions posed in FAA's letter as follows: I. CRE has rules and regulations regardingthe management ofground operations in the airport movement area. The Minimum Standards incorporate those rules and regulations byreference, and contain numerous requirements that have been violated by SDMB, and regulate operations, vehicular operation onthe airside, and skydiving specifically. They also provide for sanctions from monetary penalties to suspension, escalating as the frequency ofviolations increases. 139 

### 2. One ofthe purposes ofadopting 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. 140 

### 3. The County conducts regular driver training sessions. Members ofthe SDMB staffhave participated in such training. Starting in 2015 the training session is conducted at a minimum oftwice 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] adoptedthe Minimum Standards and provided copies of the existing rules and regulations regarding crossing active movement areas...and instructed SDMB to inform its customers ofthese requirements. 142 

### Finally, in its letterto 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 thatFAA mayhave to address the continuing safety issues raised bythe inabilityofSDMB's skydivers to land within the [DZ]." 143

134 FAA Exhibit 1, Item 15, page 2. 1 35 FAA Exhibit 1, Item 15, page 2. 136 FAA Exhibit 1, Item 15, page 2. H 7 FAA Exhibit 1, Item 15. 138 FAA Exhibit 1, Item 15, pages 2*3, 139 FAA Exhibit 1, Item 15, page 3. 140 FAA Exhibit 1, Item 15, page 3. 141 FAA Exhibit 1, Item 15, page 3. 142 FAA Exhibit 1, Item 15, page 3. 143 FAA Exhibit 1, Item 15, page 3. Page14Skydive Myrtle Beach, Inc. v. Horry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) 

### OnMay 6, 2015, the FSDO sent a letterto Complainantraising safety concerns about skydiving operations at CRE. The FSDO characterized the skydiving incidents at CRE as constituting "intheir number and onthe basis oftheir repetitive nature, an egregious and callous disregard for the safety ofnot onlythejumpers, but the safety and security ofpersons andproperty on the ground." The FSDO addedthat the "evident disregard for the well-being ofpersons and propertyrepresents an intolerable hazard and these events must be diminished or eradicated without delay inthe interest ofoperational and public safety." 144 

### OnMay 31, 2015, SDMB put 11jumpers out overthe airport, and three ofthem made itto the airport, and eight ofthem landed on the beach. This was done withoutthe FSDO providing the required authorization. The FSDO has sent letters ofinvestigation 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 SafetyInspectors from FSDO- 13 visited SDMB and metwith Mr. Arron Holly, the owner. The FSDO stated thatthe visit did not produce any satisfactoryresults. The following excerpts are from the memorandum compiled bythe FSDO following the meeting: "

...Mr. Holly said that he is infull compliance with [14] CFRpart 105, and does notbelieve that any parachutist that lands in otherthan an authorized [DZ] does anything wrong. [The FSDO] showed himthe (5) Mandatory Occurrence Reports (MOR) for the weekend

...as well as the PedestrianNehicleDeviation, andhe believes theyare all fabrications made up by [the ATCT]. He doesn'tthink thatthe tower should be at this airportbecause there is little traffic

...

...[Mr.] Holly said thatbecause there is nothing in writing, there is also no [DZ] at the airport that they are required to land in, and thatjumpers can, and do, land anywhere onthe airport. Mr. Holly believes that there is nothing wrong with landing on the taxiway, as long as thejumpergets right off. He also believes that ajumper can land anywhere onthe controlled airport, because there is no current written agreement saying where theyhave to land

...

...[FSDO personnel] told him thatthe reason [they were] there was to attemptto reduce the amount of parachutists who land outside ofthe [DZ], and to reduce the possibilityofpeople getting hurt. He says that that is not goingtohappen. He said that no one has been hurt in the three years theyhave been there, and there would not be anyreduction in thejumpers landing out ofthe [DZ], because the airport is where they can land, and notthe drop zone as we know it

...

. . .Mr. Holly nevermentionedthat there were any risks involved or not. [He] believes his company is doing everything correctly. No amount ofdiscussion [the FSDO] had withhim changed anything." 146 

### On August 4, 2015, an ATO Memorandum to the Director, 

### Air Traffic Operations, Eastern Service Area, South, AJT-ES, concerning anAuditof Parachute Operations in the Myrtle Beach, South Carolina discussed the skydiving safety issues at CRE. Some ofthe statements in the memorandum are as follows: "Skydive Myrtle Beach is not in compliance with the LOAbyconsistentlyviolatingthe landing zone parameters. This violation is a disregard for the well-being ofpersons and property thatrepresents an intolerable hazard and these events mustbe diminished or eradicated without delay inthe interest of operational and public safety

...

.. .Thejumpersthathave landed outside ofthe agreed upon [DZ] are clearly a breach ofthe LOA. Moreover, they appear to constitute intheir number and on the basis oftheirrepetitive nature, an

144 FAA Exhibit 1, Item 22A. 145 FAA Exhibit 1, Item 22B. 146 FAA Exhibit 1, Item 228. Page 15Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) 

### egregious and insensitive disregard for the safety ofnot onlythejumpers butthe 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 thejumpers landed outside ofthe Landing Zone as depicted in the LOA. There were also eight (8) Pedestrian Deviation Reports filed during the same timeframe. The breakdown ofthese thirty-nine operations is as follows:

• Total number of jumpers outside ofthe 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 ofoperations that landed offthe Grand Strand Airport property- 9

...Additionally, on July 25, 2015, there were nine (9)jumpersthat missed the Landing Zone and two (2) ofthese landed onthe movement area. Jumpers have actually walked onthe active movement area crossing taxiways and runways...



### . . .Mr. Glen Ray, CRE Air Traffic Manager (ATM) advised thatthere have been a number ofmeetings andphone 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 whentrying to resolve this situation

...

. . .Safety is compromised with every non-compliant landing outside the LandingZone. Other impactsto the National Airspace System (NAS) as the A1Madvised arc possible delays to other airport users arriving or departing to ensure a safe operation and protectthejumpers

....

. . .Harry County Director ofAirports and Assistant Director or Airports have advised thatthere have been numerous complaints from other CRE users and the City ofMyrtle Beach. The complaints ranged from delays both into and out ofCRE, conflicts withjumpers landing onthe movement areas, and landing offthe airport without permission

...

. . .Flight Standards District Office (FSDO) in Columbia, SC tried to make an effortto reach outto provide some safetytraining to the Skydive Myrtle Beach personneL This training was to provide educational programs focusing on basic safetyrequirements and methods, creating safe operation habits, crewbriefings and landing zones. This offer was never accepted

...

...ESC [FAA ATO Eastern Service Center] QCG [FAAATO Quality Control Group] recommends that the LOA be terminated immediatelyuntil all parties can meetto mitigate the unsafe operation." 147 

### On August 12,2015, and as a result ofSDMB'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 ofthe applicable FARs thatrequire the FAAto be allowed access to the aircraft and records. 149 

### Because ofSDMB's refusal to accommodate the FSDO's requests, an administrative subpoena was issued to SDMB at that time. The FSDO report onthe visit noted that: "

...this entire eventwas [recorded]

...outside onthe 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] offofthe airport. Otherwise, we will continue to have people landing ontaxiways, runways, and may eventually have someone hurt, or worse... We have attached a video, and still pictures ofa parachutist landing on the

147 FAA Exhibit 1, Item 30. 148 FAA Exhibit 1, Item 228. l 49 The FSDO report on this matter {FAA Exhibit 1, Item 22B) stated" Mr. Holly {owner of SDMB)

... told us to contact the owner ofthe aircraft, and we advised him that he is he operator. He also said the pilot does notwork for him, butworks forthe owner ofthe aircraft. Following the denial, we presented Arran 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 16Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) 

### ramp/taxiway area ofthe airport. These photographs and video showthe parachutist land in front ofan aircraft, the aircraft stopping, and the parachutistpulling his parachute out ofthe way ofthe aircraft

..." 150 

### On September 1, 2015, the FAA's Director ofAirport 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 Harry County Department ofAirports (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 IncidentReports bring into question Harry 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 maybe indicative ofserious systemic safety issues involving skydiving operations (e.g., landings outside ofthe 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 Countyresponded 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 safetyrisks have been enacted." 154 

### The County also states that "byvirtue ofthe more than 90 incidents you reference, it has become abundantly clear that far too many skydivers are landing outside ofthe established landing zone (LZ) specified under the LOA." 155 

### The Countyrefers to the August 4, 2015 Memorandum from ESC, QCG, AJV-E1, 2015 156 

### issued as a result ofan audit on Parachute Operation at CRE. The County cites the memorandum and stated that "the same conclusions were reached, noting specificallythe 'numerous meetings and efforts ofengagement' with this skydiving group, and their consistently confrontational behavior, and concluding with the statement that, ESC, QCGrecommends that the LOA be terminated immediatelyuntil all parties can meet to mitigate the unsafe operation." 157 In 

### its letter to FAA, the County also notes that it "has been collecting data concerning these various incidents to identifypossible risk mitigation measures" and that "analysis ofthis data does not indicate that wind or weatherplay any significant factor in the inability ofskydivers 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 ontheir review, it was the determination ofthe engineering firm that not only could the LZ not be expanded, but in orderto 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 ofsafety incidents" but "each attempt has been met with refusal to address any ofthe safety issues," ithereby 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

1so FAA Exhibit 1, Item 228. 151 This number has been update since this letter was sent out to the County. See Table 1. tsz FAA Exhibit 1, Item 29. 153 FAA Exhibit 1, Item 29. 154 FAA Exhibit 1, Item 30. 155 FAA Exhibit 1, Item 30. 156 1ncluded in the exhibit. 157 FAA Exhibit 1, Item 30. Pagel?Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina {FAA Docket No. 16-14-05) what restrictions maybe imposed due to safety concerns" and states that "inlight ofthe skydiving operator's steadfast refusal to complywith the terms ofthe existing LOA, [the County] earnestly believes that it is only a matter oftime before a catastrophic incident results." As such, the County "implores the FAAto provide their concurrence to this request within seven (7) days ofthe date ofthis letter, in order to immediatelyremedy whatFSDO described as "an egregious and callous disregard" for the safety ofCRE users and operators." 158 On September 30,2015, the County again wrote to the FAA. 

### In its letter, the County stated that "itis 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 skydivertouched down outside the landingzone on September 19, 2015, landing betweenthe 

### Air Traffic Control Tower and TaxiwayAlpha." The County also notedthat "on September 27, 2015, a waywardparachutist landed on TaxiwayAlpha,justnortheast ofTaxiways Tango and Charlie." Finally, the County states that "while it is fortunate thatno injuries orpropertydamage were reported as the result ofeither incident, [the County] fears that it will onlybe a matter oftime before we are writing to inform you ofa 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." 159 

### V. ISSUES Upon review ofthe allegations and the relevant airport-specific circumstances summarized above, the FAA has determined thatthe following issues require analysis to provide a complete review ofthe Airport's compliance with applicable Federal law and policy: 

### Issue 1 -Whetherthe actionstaken by 

### County with respect to Complainant's skydiving operations at CRE are in violation of GrantAssurance 22, Economic Nondiscrimination; Issue 2
- Whetherthe actions taken by 

### County with respect to Complainant's skydiving operations at CRE are in violation of GrantAssurance 19, Operation, and Maintenance; VI. APPLICABLE FEDERAL LAW AND POLICY The Federal role in civil aviation has been augmented byvarious 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 orbyrestrictive 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 ofsafety 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 (AlP) Title 49 U.S.C., 

### § 47101, 

### etseq., provides for Federal airportfmancial assistance for the development of public-use airports under AIP establishedbythe Airport and Airway ImprovementAct of I982, (AAJA) as amended. Title 49 U.S.C., 

### § 47107, 

### etseq., sets forth assurances to which an airport sponsor agrees as a condition ofreceiving Federal fmancial assistance. Upon acceptance ofan AIP grant, the assurances become a binding contractual obligation between the airport sponsor and the Federal Government. The assurances

1ss FAA Exhibit 1, Item 30. 159 FAA Exhibit 1, Item 31. Page 18Skydive Myrtle Beach, Inc. v. Horry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) made by airport sponsors in AlP 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 underAlP, 49 U.S.C. § 47107, 

### etseq., the Secretary ofTransportation and, by extension, the FAAmust 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 FAAhas a statutory mandate to ensure that airport owners complywith these sponsor assurances. 16

# °FAA Order 5190.6B, 

### FAA Airport Compliance Manual (Order), issued on September 30, 2009, provides the policies and procedures to be followed bythe FAA in carrying out its legislativelymandated functions related to compliance with Federal obligations ofairport sponsors. 161 The FAA grant assurances that apply to the circumstances setforth in this Complaint are Grant Assurance 19 

### Operation andMaintenance and GrantAssurances 22, 

### EconomicNondiscrimination. 

### 1. Grant Assurance 19, Operation andMaintenance GrantAssurance 19, 

### Operation andMaintenance, ofthe prescribed sponsor assurances, implements the requirements ofTitle 49 United States Code U.S.C. § 47107(a)(7) and (a)(8). Assurance 19 provides, in pertinent part, that the sponsor ofa federally obligated airport will operate the airport and all facilities necessaryto serve the aeronauticalusers in a safe and serviceable condition at all times, and in accordance with the minimum standards as required orprescribed byapplicable Federal, state and local agencies for maintenance and operation. FAA Order 5190.6B describes the responsibilities underAssurance 19 "a fundamental obligation on the sponsor is to keepthe airport openfor public use" and "GrantAssurance 19, 

### Operation andMaintenance, requires the sponsorto protect the public using the airport by adopting and enforcingrules, regulations, and ordinances as necessaryto ensure safe and efficient flight operations. Accordingly, the sponsor is more than a passive landlordbecause the assurance federally obligates itto maintain and operate the aeronautical facilities and common-use areas for the benefit ofthe public." Italso explains thatthis responsibility includes the following: 

### "Warnings. Ifanypart ofthe airport is closed or ifthe use ofanypart ofthe airport is hazardous, the sponsormustprovide warnings to users, such as...Notice to Airmen (NOT 

### AM). 162 

### Safe Operations. The sponsor should adopt and enforce adequate rules, regulations, or ordinances as necessaryto ensure safety163 ••.ofaircraft operations and to protectthe public usingthe airport. 

### LocalRules andProcedures. One ofthe most importantfunctions oflocal regulations is to control the use ofthe airport in a mannerthat will eliminate hazards to aircraft andpeople and structures onthe ground." 164 FAA'sFlight Standards office should be involved in all matters related to decisions dealing with, orrelying upon, a safety assessment. 165 As in the operation ofanypublic service facility, there should be adequate rules covering vehiculartraffic, sanitation, security, crowd control, access to certain areas, and fire protection

...." and that "sometimes, measures are needed to reducethe likelihood ofa runway incursion.

160 See, e.g., the FederalAviationActof 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, §§ 4710S(d}, 47106(d), 47107(k), 47107(1), 471ll(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 realized due to restrictions on aeronautical activities. lGZ The NOTAM is a notice or advisory distributed by means oftelecommunication 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) ForAirport 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·l. 164 FAA Order S190.6B, pages 7-7,7-8, and 7·9. 155 FAA Order S190.6B, pages 22-6. Page19Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05)
FAA Order 5190.6B also stipulatesthat "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 Italso states that "consistentwiththe FAAmission, the most important objective in FAA's oversight ofthe compliance program is to ensure andpreserve safety at all federally obligated airports." 167 For example, ifa safety problem is identified at an airport, FAA compliance personnel should coordinate corrective action not only withthe airport, but also with otherFAA lines ofbusinesses, including Flight Standards and/or AirTraffic. Whenpossible, action should also be coordinated with the FAARunway SafetyAction Team (RSA

### T). The FAAhas a number ofinitiatives underwayto prevent runway incursions. Inaddition, 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 sponsormayhave to discontinue an aviation use." 169 Inaddition, as part ofan investigation, FAA'sAssociate Administrator for Airports, working in conjunction withFlight 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 airport170 

### 2. Grant Assurance 22, 

### Economic Nondiscrimination GrantAssurance 22 ofthe sponsor assurances requires, in part, thatthe sponsor ofa federally obligated airport assure:
a. Itwill make the airport available as an airport for public use onreasonableterms and withoutunjust discrimination to all types, kinds, and classes ofaeronautical activities, including commercial aeronautical activities offering services to the public at the airport. h. The sponsormay establish suchreasonable, and notunjustly discriminatory, conditions to be met by all users ofthe airport as maybe necessary for the safe and efficient operation ofthe airport

... 

### i. The sponsormayprohibit or limit any giventype, kind or class ofaeronautical use ofthe airport ifsuch action is necessary for the safe operation ofthe airport or necessary to serve the civil aviation needs of the public." Subsection (h) qualifies subsection (a) and subsection (i) represents an exceptionto subsection (a) to permit the sponsorto exercise control ofthe airport sufficientto preclude unsafe and inefficient conditions that would be detrimental to the civil aviation needs ofthe public. Grant Assurance 22, 

### EconomicNondiscrimination, deals with both the reasonableness ofairport access and the prohibition ofadoptingunjustly discriminatory conditions as a potential for limiting access. In all cases involving restrictions on airport use imposed by airport owners for safety and efficiencyreasons, the FAA will make the fmal determination on the reasonableness ofsuch restrictions when they appear to deny or limit access to, oruse 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 ofFederal

166 FAA Order 5190.68, at 2-6. 167 FAA Order 5190.68, at 2-5. 168 FAA Order 5190.68, pages 7-7,7-8, and 7-9. 169 FAA Order 5190.68, pages 22-6. 170 FAA Order5190.68, pages 14-2, 14-4, and 14-5. As the United States Supreme Court has stated, the FAA "requiresa delicate balance between safety and efficiency

... and the protection of persons on the ground

.... The interdependence ofthese factors requires a uniform and exclusive system of federal regulation (FAA determines safety] ifthe congressional objectives underlyingthe 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 Terminal, 411 U.S. 624, 638-639 (1973}). Page 20Skydive Myrtle Beach, Inc. v. Horry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) property for airportpurposes. These obligations are incorporated in grant agreements and instruments of conveyance in orderto protect the public's interest in civil aviation and to ensure compliance with Federal laws. 171 The goal is to ensure the availability ofa national system ofsafe and properlymaintained public-use airports operated in a manner consistentwith the airport owners' Federal obligations and the public's investment in civil aviation. 172 FAA Order 5190.6B sets forth policies and procedures for the FAAAirport Compliance Program. 173 The Order establishes the policies and procedures to be followed byFAApersonnel in carrying outthe FAA's responsibilities for ensuring airport compliance. 174 FAA Order 5190.6B also analyzes the various obligations set forth in the standard airport sponsor assurances, addresses the nature ofthose assurances, addresses the application ofthose assurances inthe operation of public-use airports, and facilitates interpretation ofthe assurances byFAA personnel. 175 Therefore, in addressing allegations ofnoncompliance, 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 considerthe successful action bythe airport to cure any alleged orpotential past violation ofapplicable Federal obligationto be grounds for dismissal ofsuch allegations. 

### D. FAA Enforcement Responsibilities The 

### FederalAviationActof 1958, as amended, 49 U.S.C. 

### §40101, et seq., assigns the FAAAdministrator broad responsibilities for the regulation ofair commerce in the interests ofsafety, security, and development ofcivil aeronautics. The Federal role in civil aviationhas been augmented byvarious legislative actions, which authorize programs for providing funds and other assistance to local communities for the development ofairport facilities. In each such program, the airport owner or sponsor assumes certain obligations, either by contract orbyrestrictive 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 inproperty conveyance or grant agreements are important factors in maintaining a high degree ofsafety and efficiency in airport design, construction, operation andmaintenance, as well as ensuring the public reasonable access to the airport. Pursuantto 49 U.S.C. 

### §47122, the FAAhas a statutorymandate to ensure that airport owners comply with theirFederal grant assurances. Pursuantto 49 U.S.C 

### §40113(a) FAAis authorized to issue orders to carry out PartA of Subtitle VII of49 U.S.C. That sectionprovides explicit authority for the Administrator ofthe FAAto "take action the

... Administrator

... considers necessaryto carry outthis part, including the authority for" issuing orders." Pursuantto 49 U.S.C §47122 the FAAmay issue orders to the FAAhas a statutorymandate to ensure that airport owners complywiththeir Federal grant assurances. 176 This subchapter includes the grant assurances requiring reasonable access and prohibiting unjust discrimination to aeronautical users. 

### E. The Complaint Process Pursuantto 14 CPR§ 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 ofthe facts

171 The Airport Compliance Program is administered by FAA's AC0-100 Airport Compliance andManagementAnalysis. The Airport Compliance Division oversees the Airport Compliance Program. The division holds primary responsibility for interpreting. recommending, and developing policies and resolving mattersthat involve the Federal obligations of airport sponsors. Italso adjudicates formal complaints and FAA-initiated investigations under 14 CFR Part 16. 172The Airport Compliance Program does not control or directthe operation of airports. Rather, it monitorsthe administration ofthe valuable rights pledged by airport sponsors to the people of the United States in exchange for monetary grants and donations of Federal propertyto ensure that the public interest is being served. m see http://www.faa.gov /alrports/resources/publications/ orders/complianee_ 5190

_6/. l74 1t 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. m 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 aircraftfor 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 21Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) relied upon to substantiate each allegation. The complaint shall also describe howthe complainant was directly and substantially affected bythe things done or omitted bythe respondents. 177 If, based on the pleadings, there appears to be a reasonable basis for further investigation, the FAAwill investigate the subject matter ofthe complaint. 

### Inrendering its initial determination, the FAAmayrely entirely on the complaint and the responsive pleadings provided. Eachparty shall file documents it considers sufficientto present all relevant facts and arguments necessary for the FAA to determine whetherthe sponsor is in compliance. 178 The proponent ofa motion, request, or orderhas the burden ofproof. A partywho has asserted an affirmative defense has the burden ofproving the affirmative defense. The complainantmust submit all documents then available to supporthis or her complaint. 179 Title 14 CFR § 16.3l(b-d) provides, in part, that "the Director's determination will set forth a concise explanation ofthe factual and legal basis

...on each claim made bythe complainant." 

### In accordance with 14 CFR § 16.33(b) and (e), upon issuance ofa Director's determination, "a party adversely affectedbythe Director's determination may file an appeal with the Associate Administrator within 30 days after the date ofservice ofthe initial determination;" however, "ifno appeal is filed within the time period specified in paragraph (b) ofthis section, the Director's Determination becomes the fmal decision and order ofthe FAA without further action." A Director's Determination thatbecomes fmal because there is no administrative appeal is notjudiciallyreviewable. Title 14 CFR § 16.247(a) provides forjudicialreview ofthe Associate Administrator's fmal decision and order, as provided in 49 U.S.C. 

### §46110 or section 519(b)(4), 49 USC,§ 47106(d) and 47lll(d). 

### F. Minimum Standards Advisory CircularAC 150/5190-7,Minimum Standards for CommercialAeronauticalActivities (August 28, 2006) provides basic informationpertaining to the FAA's recommendations on commercial minimum standards and relatedpolicies. Althoughminimum standards are optional, the FAAhighly recommendstheir use and implementation as a means to minimize the potentialfor violations ofFederal obligations at federally obligated airports. 

### In accordance with U.S.C. § 47101, et seq., andthe AIP Sponsor Assurances, the owner or operator ofany airport (airport sponsor) thathasbeen developed or improved with Federal grant assistance or conveyances ofFederalproperty assistance is required to operate the airport forthe use and benefit ofthe public and to make it available for all types, kinds, and classes ofaeronautical activity. These Federal obligations involve several distinctrequirements. Most importantisthatthe airport and its facilities must be available for public use as an airport. 180 The FAA suggests that airport sponsors establish reasonable minimum standards that are relevant to the proposed aeronautical activity withthe goal ofprotecting the level and quality ofservices offeredto the public. Once the airport sponsorhas establishedminimum standards, it should applythem objectively and uniformly to all similarly situated on-airport aeronautical serviceproviders. 181 The FAA objective in recommending the development ofminimum standards serves to promote safety in all airport activities, protect airport users from unlicensed and unauthorizedproducts and services, maintain and enhancethe availability ofadequate services for all airport users, promotethe orderly development ofairport land, and ensure efficiency ofoperations. Therefore, airport sponsors should strive to develop minimum standards that are fair and reasonable to all on-airport aeronautical service providers and relevantto the aeronautical activity to whichit is applied. 182

m 14 CFR § 16.23(b) {3, 4). ns 14 CFR § 16.29. 179 14 CFR §§ 16.23, 16.29. lSO 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 acontractor 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 aviolation of the prohibition against exclusive rights and/or afinding of unjust economic discrimination for imposing unreasonable terms and conditions for airport use. 1112 Advisory Circular AC

**150/5190~7,** Exclusive Rights andMinimum Standardsfor CommercialAeronauticalActivities (August 28, 2006}. Page 22Skydive Myrtle Beach, Inc. v. Horry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) Inpast decisions, the FAAhas found that it is not a violation ofgrant assurancesfor airport sponsors to increase minimum standards. The FAArecognizes that frequent changes in an airport's minimum standards may lead to the appearance ofmanipulating the standards to protect the interest ofone or a few businesses at the expense ofothers. 183 It is throughthe sponsor's objective and uniform application ofits minimum standards that allows itto meet the standard ofcompliance. The FAA expects airport sponsors to applytheir minimum standards consistentlythrough their interactions with aeronautical users and service providers. With that said, the standard ofcompliance does notrequire 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 withthe sponsor. 184 

### G. FAA Order 5190.68 

### 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 orprospective aeronautical service providerthe right to engage in an on-airport aeronautical activity for reasons ofsafety and efficiency ifthe kind ofactivity (e.g., skydiving) would adversely impactthe safety and efficiency ofanother aeronautical activity at the airport, typically fixedwing operations. 185 Anysafety concerns with an operator's activities mustbe broughtto the attention ofthe FAA. However, the airport sponsor mayfmd that an aeronautical activity as a whole is inconsistent with the safety and efficiency of the airport andmay, therefore, notpermitthat activity at all, subjectto concurrence bythe FAA. The airport sponsor mayalso prohibit access by an individual orindividual service providerthat has not complied with the airport's minimum standards or operations rules for safe use ofairport property. Anydenial based on safety mustbe based onreasonable evidence demonstrating that airport safety will be compromised ifthe operator or individual is allowed to engage inthe aeronautical activity. 186 FAA Order 5190.6B also states that the FAA is the fmal authority in determining what, in fact, constitutes a compromise ofsafety. As such, an airport sponsorthatis contemplatingthe denial ofa proposed on-airport aeronautical activity or access is encouraged to contactthe local AirportDistrict Office (ADO) or regional airports division. Those offices will then seek assistance from FAAFlight Standards and Air Traffic to assess the reasonableness ofthe proposed action because ofsafety and efficiency, and to determine whetherunjust discrimination or an exclusive rights violationresults from the proposed restrictions. 187 FAA Order 5190.6B also states that any restriction, limitation, or ban on skydiving onthe airport mustbe based onthe grant assurance thatprovides thatthe airport sponsor mayprohibit orlimit aeronautical use for the safe operation of the airport (subjectto FAA approval). The following questions present some ofthe reasonable factors the sponsor can contemplate when developing minimum standards that applyto skydiving:
• Willthis activitypresent or create a safetyhazard to the normal operations at the airport? 188
• Can skydiving operations be safely accommodated at the airport?
• Can a drop zone be safely established using FAAAC-90-66A, 14 CFRPart 105, and USPABSRs?
• What experience requirements are needed for an on airport drop zone?
• Has the relevant airtraffic control facility been advised ofthe proposed parachute operation?

183 See Royal Air. Inc. v. City of Shreveport through the Shreveport Aimort Authority, FAA Docket No.

**16~02-06,** January 9, 2004, pages 28. 184 See Rick Aviation Inc. v. Peninsula Airport Commission FAA Docket No. 16-05-18, May 8, 2007, page 16, Rick Aviation. Inc. v. Peninsula Airport Commission FAA Docket No.lG-05-18, November 6, 2007, page 9, and Springfield Flight Academy v. Citv of Springfield. FAA Docket No.

**16~10-03,** August 25, 2011, page 15. 185 FAA Order 5190.66, page 8-8. 186 FAA Order 5190.68, page 8-8. 187 FAA Order 5190.68, pages iii, and 7-8. 138 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 bejeopardized?" FAA Order 5190.68, Appendix C, pages 39-40. Page 23Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05)

• Will anFAA airspace studybe necessary? 189 FAA Order 5190.6B discusses skydiving-relatedrestrictions, including:

• Limiting skydiving

...to certaintirnes

...to avoidthe times ofhighest operationby fixed-wing aircraft.
• Banning skydiving

...whenthe volume affixed-wingtraffic would create significant delays.
• Limiting skydiving

...operations to certain areas ofthe airfield and certaintraffic patterns to avoid conflict withfixed-wing pattems. 190 H. 

### 14 CFR Part 105 

### Parachute Operations The FAA'sprimaryresponsibility withrespectto skydivingisthe protection ofairtraffic (aircraft) andpersons andproperty onthe ground. This is principally accomplishedthrough 14 CFRPart 105, promulgated under49 

# u.s.c. 106(g), 40113-40114,44701-44702, 44721. 191 Part 105 was designed to protectthe general public and other users ofthe national airspace from sport parachuting activities. 

### In addition, parachute operators andjump pilots must complywith all applicable sections ofPart 91 General OperatingandFlightRules. 192 The following are relevant sections of 14 CFRPart 105: 

### § 105.3 Definitions. Drop Zone means anypre-determined areaupon which parachutists or objects land after making an intentional parachutejump ordrop. Otherrelevant definitions include 

### (I) parachute operation, parachutist, andtandemparachute operation. 

### § 105.5 General. No personmay conduct a parachute operation, and no pilot in command (PIC) ofan aircraft mayallow a parachute operationto be conducted from an aircraft, ifthat operation creates a hazardto air traffic orto persons orproperty on the surface. 

### § 105.13 Radio Equipmentand Use Requirements. No personmayconduct a parachute operation, and no PIC may allow a parachute operationto be conducted from that aircraft, in orinto controlled airspace unless the appropriate radio equipment andprocedures are adheredto. § 105.21 Parachute Operations Over orInto a CongestedAreaor an Open-AirAssemblyof Persons. No person may conduct a parachute operation, and no PIC may allowa parachute operation to be conducted fromthat aircraft, over or into a congested area ofa city, town, or settlement, or an openair assemblyunless a Certificate ofAuthorization (COA) for thatparachute operationhas been issued.l 93 

### § 105.23 Parachute Operations Over or OntoAirports. No personmay conduct a parachute operation, and no PIC may allowa parachute operationto 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 managementofthe airportto conductparachute operations over or onthatairport, (2) approval from theATCTto conductparachute operations over or onto thatairport, (3) radio communications are maintained.

189 FAA Order 5190.6B, Appendix c, pages 39-40. 19

### °FAA Order 5190.66, pages 14-3, and Appendix C. 191 66 FR 23553, May 9, 2001, unless otherwise noted. 192 See 14 CFR § 91.307 Parachutes andparachuting...(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. 193 However, a parachutist may drift over a congested area or an open-air assembly of persons with afully deployed and properly functioning parachute if that parachutist is at asufficient altitude to avoid creating a hazard to persons or property on the surface. Page 24Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05)

• For airports without an operating control tower, prior approval has been obtained from the management ofthe airport to conductparachute operations over or on that airport. Italso provides that a parachutistmaydrift over that airport

...iftheparachutist is atleast 2,000 feet above that airport's traffic pattern, and avoids creating a hazard to air traffic orto persons and property onthe ground. 

### § 105.25Parachute Operations in DesignatedAirspace. No personmay conduct a parachute operation, and no pilot in command ofan aircraft mayallow a parachute operationto be conducted

...within orinto a Class A, B, C, D airspace area without

...an air traffic control authorization

... within orinto Class E or G airspace area unless the air traffic control facilityhaving jurisdiction overthe airspace

.. .is notified oftheparachute operation no earlierthan 24 hours before or no laterthan I hourbeforethe parachute operation begins. 194 

### I. Advisory Circular 105-2 Sport Parachuting Advisory CircularAC 105-2E SportParachutingprovides parachuting safety suggestions anddisseminates informationto assist in compliance with 14 CFRPart 105. Itcontains information on equipment, on-airport parachuting operations, training, and otherrelatedprocedures for FAA authorizations. The document covers several aspects ofskydiving on airports. Parachute LandingAreas. The FAArecommends thatparachute landing areas remain unobstructed, with sufficientminimumradial distances to the nearesthazard. 195 Stipulations forLandingatorFlying OveranAirport. Mostparachute operations take place on airports. Section I05

### 23 requires approval from airport managementpriorto skydiving onto any airport, but allows a parachutistto 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 pattem. 196 AdditionalAviationActivities. A large number ofairports that accommodate parachute operations also have differentkinds ofaviation activities takingplace simultaneously, including flighttraining, helicopter operations, transient traffic overorin the immediate vicinity ofthe airport during skydiving operations. 197 Parachute Landings onAirports. Airports may designate suitable parachute landing areas. While skydivers, attimes there maybe inadvertent landings in other grass orhard-surfaced areas, areas such as runways, taxiways, clearways, and obstacle-free zones should notbe designated as a primary landing area and shouldbe vacated as soon as practical. Flying a parachute overrunways at low altitudes should be avoided where possible

....airport management works withparachute operators to develop standard operating procedures for activities conducted byparachutists. 198 

### J. Advisory CircularAC 90-66A Recommended Standard Traffic Patterns andPractices For Aeronautical Operations atAirports Without Operating Control Towers Advisory CircularAC 90-66A provides additional guidance related to skydiving operations at an airport. It states, in partthat "all activities are normally conductedunder aNOT AM noting the location, altitudes, and

**~** See 14CFR Part 105. 195 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 ofthe 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. 198AC 150-2, page 5-6. Page 25Skydive Myrtle Beach, Inc. v. Horry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) time or duration of jump operations. TheAirport!Facility Directory (A!FD) lists airports where permanent drop zones are located." 199 Advisory CircularAC 90-66A also states that "when a drop zone has been established on an airport, parachutists are expectedto land withinthe drop zone. At airports thathave not established drop zones, parachutists should avoid landing onrunways, taxiways, aprons, and their associated safetyareas."200 Pilots andparachutists should also be aware ofthe flight performance limitations ofparachutes, and avoid any potential conflicts between aircraft and skydivers.201 

### K. 

### Development of 

### Criteria for Parachute LandingAreas on Airports (DOT/FAA/ AR-11/30) This advisory document discusses the placement ofparachute landing areas (PLA) (aka landing Area, DZ)202 at airports and discusses related variables in developing aDZ. Italso correlates the size ofa PLA/DZ and experience level. The document includes recommendations for operational procedures andpractices.203 Skydivinglandinghazards includetelephone and power lines, towers, buildings, paved surfaces (ramps/aprons, runways, andtaxiways), aircraft, aircrafttie-down areas, NA VAIDs, airfield lighting, signage, openbodies of water, highways, automobiles, and clusters oftrees coveringmore than 3,000 square meters.204 The USPA categorizesthree minimumradial distances from hazards based onthe parachutist's experience and type of activity. These radial distances were used to calculate the minimum square footage for an on-airportPLA.205 Airports should develop anLOA withthe skydiving operatorthat describes specific operating requirements and boundaries ofthe PLAs. This could include movements requiredbythe skydiver operator onthe airfield as weII as instructions and/or restrictions for crossing runways, operatingvehicles on the airfield, radio communications, and emergencyprocedures. The LOA should also address the procedures ifa parachutist lands outside the designated PLA or in a protected area ofthe runway. 206 When applicable, an additional LOA shouldbe established betweenthe skydiver operator and the nearestFAA 

### Air Traffic facility. The LOA should defme the skydiving procedures andboundaryofthejumpzone airspace as weII as aircraft operating procedures. 

### Ail on-airportPLAs mustbe markedto distinguish the PLA from the surrounding area.207 

### L. FAA 

### Order J07110.65V

### AirTraffic Control, Chapter 9, 

### Section 

### 7 Parachute Operations FAAAir Traffic Organization (ATO) has guidance related to skydiving operations. FAA Order J07110.65 prescribes procedures and phraseology inproviding air traffic control services. This order appliesto all ATO personnel and anyone using ATO directives.208 Section 7 ofthe Order specifically covers parachute operations. It includes the following guidance directed at air traffic controllers (a) coordinate anypertinent informationpriorto and atthe end ofeachparachutejump or series of jumps; 

### (b) authorize parachute operations only within airspace designated for thejumping activity; (c) separate other aircraft from the airspace authorized for thejumping activity; (d) impose, as necessary, any conditions and restrictions to support the safety ofthe operation; (e) handle requests to conductjump operations in or into Class D airspace inwhichthere is a functioning control tower as follows; and (f) handle notifications for operations in other Class E airspace.209

**9** AC 90-66A, page 4. 200 AC 90-66A, page 4

**~01** AC 90-66A, page 4. 202 1n some instances the FAA has used the term "Parachute landingArea," 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. 203 Developmentof CriteriaforParachute LandingAreas onAirports {DOT /FAA/ AR-11/30}, page 6. 204 Developmentof CriteriaforParachute LandingAreas onAirports (DOT /FAA/ AR-11/30), page 6 and 9. 205 DevelopmentofCriteriafor Parachute LandingAreas onAirports (DOT/FAA/ AR-11/30), pages 23. 205DevelopmentofCriteriafor Parachute LandingAreas onAirports (DOT/FAA/AR-11/30), pages 26. 207DevelopmentofCriteriaforParachute LandingAreas onAirports, DOT /FAA/AR-11/30, page 26. 208 Section 1-1-1, FAA Order 7110.6SV. It includes contract towers.

**20**

**~** FAA Order J07110.6SVAir Traffic Control, Section 7 Parachute Operations, April3, 2014. Page 26Skydive Myrtle Beach, Inc. v. Harry County Department ofAirports, South Carolina (FAA Docket No. 16-14-05)


### M. FAA Order J0721

### 0.3, Chapter 4, Section 

### 3 Letters ofAgreement (LOA) and Chapter 18, Section 4 Parachute Jump Operations Section 4 ofF AA Order J07210.3 Parachute Jump Operations also covers LOAs and parachutejump operations. When operational/procedural needs require or when warranted byhigh-density airtraffic or constrained airspace, the Order discusses negotiating letters ofagreement (LOAs) that designate areas of ongoingjump activity as permanentjump sites. In discussing LOAs, FAA OrderJ072!0.3 addresses many aspects ofsafe skydiving operations including (a) the description and the location ofthejump zones and the conditions ofuse; (b) schedules; (c)jump altitudes; (d) communications; (e) notification procedures; 

### (f) control ofvehiculartraffic on airport movement areas, and (g) any other items pertinentto the needs ofthe ATC system and the users.21

# °FAA Order J07210.3 also states that where ongoingjump sites are established, NOT AM (Notice to Airmen) information must be submitted for publication in the A/FD. The Order also requires ATC to keep the record ofthejump operations in the facility files for 15 days.211 

### N. 14 CFR Part 139 Certification ofAirports The FAAhas the statutory authorityunder 49 U.S.C. 

### §44706 to issue Airport Operating Certificates to airports serving passenger-carrying operations ofcertain 

### air carriers and establish minimum safety standards for the operation ofthose airports. The FAA uses this authority to issue requirements for the certification and operation ofcertain land airports through 14 CFRPart 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 anyairport. For example, Part 139 includes guidance concerning self-inspections,pavedareas, safety areas, traffic and wind direction indicators, pedestrians and ground vehicles,212 obstructions, public protection, protection ofNA VAIDs, and airport condition reporting. 213 

### 0. Airport MovementSafety and Vehicle or Pedestrian Deviations (VPD) Guidance The FAAhas responsibilities for identifying, analyzing, and tracking hazards which contribute to runway incursion and excursionrisk. ATO policygoverningthe identification ofhazards and the analysis and mitigation ofrisk inthe National Airspace System (NAS)214 is documented inFAA Order I000.37ATOSafety Management System. Itincludes the processes usedto evaluate and ensure safetyofthe NAS, including valuations, data tracking, and analysis. Runway Incursions are considered "safety events" thatmustbe analyzed in orderto identifY newhazards orrisks andto assess existing safety controls. AnATCT facility reports surface events as occurrence reports in CEDAR218 Runway Safety classifies every event and makes sure appropriate data is captured for the official agency runwayincursion database. The responsibilities for investigation and analysis include: (a) Potential OperationalIncidents; 

### (b) PotentialPilotDeviations (PD); (c) Potential Vehicle orPedestrianDeviations (VPD)/ 16and (d) RunwaySaftty Group. 217

210 FAA OrderJO 72.10.3Y Facility Operation and Administration, paragraph 4-3-1, and 18-4-1. · 211 FAA OrderJO 7210.3Y Facility Operation and Administration, and 18-4-1. m 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 identifyingthe 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 ·mvolving aircraft, a ground vehicle or a pedestrian. zn For example, 14CFR § 139.227, 14 CFR § 139.329, and 14 CFR § 139.335. :<14 The common network ofU.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]. ns Comprehensive Electronic DataAnalysis and Reporting (CEDAR). 2l6 The FAA Office ofAirports investigates surface events that are potential vehicle or pedestrian deviations, or in the case ofevents with mechanics taxiing aircraft, by Flight Standards. Based on the results of the investigation, the Office ofAirports may assign corrective actions to the airport involved. If risks or Page 27Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina {FAA Docket No. 16-14-05) 

### P. FAA Order 7050.1 B Runway Safety Program Runway safetyis one ofthe FAA's highest safetypriorities. FAA Order 7050.1B RunwaySafety Program prescribes the FAARunway SafetyProgram (RSP) and establishes policy, assigns responsibility, and assigns authority for ensuriug compliance withthis order within each organization ofthe FAA.218 The RSP is intended to improve runway safetyby decreasing the number and severity ofrunway incursions, runway excursions, and other surface incidents. 219 Q. 

### Safety Management Systems (SMS) Guidance FAA OrderVS8000.369 Safety Management System Guidance provides guidance for implementation ofa commonSafetyManagement System (SMS) within the FAA. This orderfurthers the practice ofmanaging safetybymovingto a moreprocess-oriented system safety approach with an emphasis on managing systems that ensure riskmanagement and safety assurance. This order applies to the FAA's Aviation Safety Organization (A VS), AirTraffic Organization (ATO), and Office ofAirports (ARP) 220 FAA Order 8040.4ASafetyRiskManagementPolicy supports FAA Order 8000.369, and establishes requirements for how to conduct SafetyRisk Management (SRM) in the FAA. Itformalizes the use and communication ofSRM across the FAA and describes the specific steps when performing SRM. The objective ofSRMis to provide supporting information for decision-makers by identifYing hazards, analyzing safetyrisk, assessing safety risk, and developing controls to reduce risk to an acceptable level. SRM facilitates communication and coordination across FAA organizations for enhanced safetyrisk decision making. It also establishes commonterms andprocesses used to analyze, assess, and accept safety risk. The design ofthis policy is to prescribe common SRMlanguage and communication standards to be applied throughoutthe FAA.221 FAA Order 5200.ll FAAAirports (ARP) Safety Management System provides a SMS framework as a consistentmeans ofassessing safetyrisks at airports. FAA Order 5200.ll is consistentwithFAA Order 8000.369, and its principles are based onthe ability to identify and address safetyissues before they become hazards andthus increase system safety. 222 A hazard is any existing orpotential condition that can lead to injury, illness, or death; damageto or loss ofa system, equipment, or property; or damage to the environment (environmental issues are notwithinthe scope ofthe SMS). A hazard is a conditionthatmight cause (is a prerequisite to) an accident orincident.223 FAA SMS isused to assess, verifY, and control risks, and safety risk management is integrated into applicable processes. Appropriate riskcontrols or otherrisk management responses are developed and employed operationally. Safetyriskmanagementprovides for initial and continuing identification ofhazards and the analysis and assessment ofrisk. The FAAprovides risk controls through activities such as the promulgation of regulations, standards, orders, directives, advisory circulars (AC), andpolicies. The safetyrisk management process (1) describes the system ofinterest, (2) identifies thehazards, (3) analyzes the risk, ( 4) assesses the risk, and (5) controls the risk. 224

hazards are identified that are under the control ofthe ATCT, the Office of Airports notifies the ATCT manager. Ifthe 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 appropr'1ate channels. 217 See AC 705018, 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 218 FAA Order 7050.16, cover page. 219 FAA Order 7050.18, cover page. 220 See FAA OrderVS8000.369 Safety ManagementSystem 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 al! the Unes of Business (LOB) of the FAA to establish and implement a forma! risk management program consistent with the LOB's role in the FAA. m FAA Order 8040.4A SafetyRisk ManagementPolicy, cover page and pages 3 and 5. =See FAA Order 5211 Airports (ARP} Safety ManagementSystem (August 30, 2010), pages 4-2 and 4-3. 223 See AC 150/5200-37 Introduction to Safety ManagementSystems (SMS) forAirport Operators, page 1. 224 See FAA Order 5200.11 FAA Airports (ARP) Safety ManagementSystem {August 30, 2010). Page 28Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) FAAAdvisory Circular (AC) No. 150/5200-37Introduction to SafetyManagementSystems (SMS)forAirport Operators (Feb. 28, 2007) introduces the concept ofa safetymanagement system for airport operators. The use ofSMS at airports contributes to safetybyincreasing the likelihoodthat airport operators will detect and correct safetyproblems before those problems result in an aircraft accident or incident.225 FAA Systems SafetyHandbook (SSH) was developed to supportthe application ofsystem safetypolicies and procedures. As the Federal agency withprimaryresponsibility for civil aviation safety, the FAA develops and applies safetytechniques and procedures in a wide range ofactivities. Chapter 15 ofthe SSH OperationalRisk Management (ORM) is a decision-making tool to systematicallyhelp identity operational risks and benefits and determine the best courses ofaction for any given situation. Riskmanagement, as discussed in the handbook is pre-emptive, rather thanreactive. The approach is based on the philosophythat it is irresponsible and wasteful to wait for an accident to happen, then figuring outhowto prevent it from happening again.226 ATO SafetyManagement System (SMS) Manual (v.4), in effect since on September 1, 2014 is a formalized and proactive approach to system safety. 

### Itdirectly supports the mission ofthe FAA to provide the safest, most efficient aerospace system in the world. ATO's SMS is an integrated collection ofprinciples, policies, processes, procedures, and programs usedto identity, analyze, assess, manage, and monitor safety risk in the provision ofair traffic management and communication, navigation, and surveillance services.227 

### R. Other Relevant Guidance FAA Order 8900.1 Flight Standards Information Management System contains surveillance procedures conducted for FAAFlight Standards FAAinspectors when observingparachute operations. Sportparachute surveillance usually involves aircraft, pilots, parachuteriggers, owners, operators, aircraft mechanics, and parachutists. This surveillance and reporting ofsportparachute operations help determine compliance withthe current CFRs that are applicable to sportparachute operations.Z28 To aid in this function, FAAhas developed draft guidance to supplementthe currentlanguage in Chapter 3, Section 5 FAA Order 8900.1 RiskAssessments for VariousAirport Operations. It addresses several activities includingparachuting operation risk assessments.229 FAA Order 8900.1 also covers demonstrations or exhibitionjumps over or into a congested area. It considers satisfactory evidence ofthe experience, knowledge, and skill equivalentto that required by the USPA. This guidance relates to 14 CFRPart 105, which was intendedto protect the general public and other users ofthe national airspace from sportparachuting activities. The competence ofparachutists is extremely importantwhen evaluating the suitability ofa landing site- type oflanding area v. experience.230 FAASTeam is a FAAFlight Standards program designed to assist in improvingthe accident rate by conveying safetyprinciples and practices. 

### Itis one ofthe educational outreach arm ofthe FAA. Each of the eight FAAFlight Standards regions nowhas a Regional FAASTeam Office dedicated to this unique safetyprogram and managed bythe Regional FAASTeam Manager (RFM). Based onthe makeup ofthe aviation community in eachregion, the RFM has selected a group ofF AASTeam Program Managers (FPM) with specific aviation specialties and assigned them to geographic areas ofresponsibility within the region. The FAASTeam uses system safetytechniques to shiftthe safety culture. Newrisk management

225 FAA Advisory Circular (AC) No. 150/5200-37Introduction to SafetyManagementSystems (SMS}forAirport Operators {Feb. 28, 2007), page i. ns See FAA Systems Safety Handbook{SSH), December 30, 2000, Chapter 15, page 15-2. m ATO Safety ManagementSystem (SMS) Manual (v.4)., page 1. m See FAA Order 8900.1, Chapter 3, Section 5- Survef(lance of SportParachuteActivities. 22g The purpose ofthe 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 ofthe sponsor's proposed restrictions. Therefore, the results ofthe risk assessment conducted by the FAA team will be used to help the Regional Airports Division determine whether an activity can be safely accommodated atthe airport. For additional details, including details on the status ofthis guidance, contact

**AFS~830.** zso FAA Order 8900.1, Volume 3, Chapter 6, Section 1, Paragraph

**3~150** Parachute Demonstrations. or D license {or equivalent), a minimum of 200jumps, of which 50jumpswere within the last 12 monthsto include 5jumps 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 SO jumps in the last 12 months, including 5 jumps in the previous 60 days. Page29Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) 

### tools will be created for individual airmen. In 

### addition, a product to deliver safetymanagement system tools to air groups is inthe developmentprocess.231 

### VII. 

### ANALYSIS A. Preliminary Issues 

### 1. 

### Compliance with 14 CFR § 

### 16.21 lcl Pursuant to 14 CFR § 16.2l(c), SDMB certifies that ithas 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 timelyresolution ofthe dispute.'m2 

### A review ofthe 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 Countyrequests that the FAA dismiss the Complaint,233 

### because the "Complaint does not identity any specific federal law, regulation, or obligation that [the County] has violated" and "therefore, atthe most basic level, SDMB's Complaint is subjectto dismissal because it appears onits face to be outside thejurisdiction ofthe [FAA]." The County adds that "SDMB's Complaint should be dismissed because on its face it does not state a claim thatwarrants an investigation or further action bythe FAA."234 

### The County argues that "Complaint SDMB presents a disjointed array ofallegations, primarily on issues that are governed exclusively by South Carolina law" and that "these allegations, which predominantlyrelate to SDMB's occupancyofa hangar

...and its use ofother

...facilities, are already being litigated in South Carolina state courts and, more importantly, are beyondthe FAA's Part 16jurisdiction."235 

### Title 14 CFR § 16.25(b) states that a motionto dismiss shall be accompanied by a concise statement ofthe reasons for seeking dismissal and that a respondent must showthat the complaint should be dismissed, with prejudice, if(i) it appears onits face to be outsidethejurisdiction oftheAdministratorunderthe Acts listed in§ 16.1, or (ii) on its face it does not state a claim that warrants an investigation or further action. 236 In 

### describing how theywere directly and substantially affected by alleged actions ofthe Respondent, Complainant clearly alleges facts and makes legal arguments that fall under the FAA's 14 CFRPar 16 jurisdiction. Most ofthe disputed issues inthis Complaint, including negative economic impact ofthe county's actions,237 

### lease provisions, operational requirements, minimum commercial standards/38 

### and the safety issues that are within the FAA's purview.. Finally, a review ofthe pleadings supports a structured argument concerning the alleged grant assurance violations, which are clearly articulated and referenced. The Directorfmds thatthe Complainanthas 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 pertainingto a sponsor's compliance with its federal grant assurance agreements, the Director does not replace or act on behalfoflocallaw enforcement, civil courts, or other legal forums outside

231 https://www.faasafety.gov/about/mission.aspx. Also see Skydiving and Parachute Operations,

**P~8740-57** (1997}, FAA Exhibit 1, Item 19. 232 FAA Exhibit 1, Item 1, pages 2-3. 233 FAA Exhib'1t 1, Item 3, page 1. 234 FAA Exhibit 1, Item 3, page 15. 235 FAA Exhibit 1, Item 3, page 1-2. 236 See 14CFR Part 16.26 {b) (1) {t) and {ii). 237 FAA Exhibit 1, Item 1, Exhibit 1, page 112. 238 FAA Exhibit 1, Item 6, page 12. Page 30Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) 

### the scope ofthe FAA's 14 CFRPart 16 purview.239 

### In dealing with airport compliance matters, negotiation is important, because both the proponent ofan 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. 240 

### A proponent ofa business at an airporthas a responsibilityto engage in negotiations regardingterms such as location, standards, qualifications, and business issues, including rents and terms. Airport sponsors have the proprietaryright to demandthat aeronautical business proposals include appropriate details, including reasonable protection from risk. Similarly, airport sponsors maynegotiate to protect themselves from liability and litigation.241 

### As part ofits Complaint, bothparties make state law claims. For example, SDMB argues thatthe County actions are "discriminatory and illegal mannerthat is contraryto
...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 positionthat the Countyrefused "to mediate within the bounds ofSouth CarolinaRules ofProfessional Conduct (SCRPC)

..."244 

### The County also raises issues under state law. Forexample, the County argues that SDMB's claims "are outside the FAA'sjurisdiction"245 

### and that "negotiation or commercial litigation" resides "under applicable state and local laws."246 

### The County also argues "followingthese principles, the FAAtypically does not consider interpretation ofleaseterms to be within its Part 16jurisdiction."247 

### The County adds, for example, that "the issue ofwhether an eviction action is wrongful is a matterto beresolved under State Law," 248 

### that the FAA does not "opine onmatters related to an evictionproceeding as such action is outside the scope of 14 CFRPart 16," and thatthe "allegations in SDMB's Complaintrelating to its state law claims are outside the FAA'sPart 16jurisdiction and should be dismissed withprejudice." 249 

### Finally, as part ofits pleadings, the Countynotes that "though SDMB attempted to enjoin the enforcement ofthe minimum standards at a recent hearing in a South Carolina state court action, their arguments were rejected bythe [state] Court."250 

### The Director does not opine on issues ofstate lawnoris the FAA bound by state court opinions on issues coveredbythe grant assurances or otherfederal obligations.251 

### While in some cases facts maybe relevant, (and some aspects are discussed below as appropriate), claims under state law are outside the FAA's

239 Skydive Sacramento v. City of Lincoln. California. Director's Determination, 19, FAA Docket No.

**16~09-09** (March 4, 2011). 240 In Penobscot Air Serv·lce 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 offederally obligated airports. The purpose is notto 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

...." 241 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 v. City of Concord,

**~** FAA Docket No.16-02-01, 27,Director's Determination (August 22, 2003).

**24~** FAA Exhibit 1, Item 6, page 8. Z 43 FAA Exhibit 1, Item 1, page 8. z.u FAA Exhibit 1, Item 1, page3. 245 FAA Exhibit 1, Item 3, page 15(citing 14CFR § 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), aff'd, Penobscot Air serv. v. FAA, 164 F.3d 713 (1st Cir. 1999)). 247 FAA Exhibit 1, Item 3, page 16 (citing Roadhouse Aviation LLC v. Citv ofTulsa & the Tulsa Airports ImprovementTrust, FAA Docket No. 16-05-08, 20 (June 26, 2007} (Final Decision and Order); Long Island Jet Center East. Inc. v. County ofSuffolk NewYork FAA Docket No. 16-04-05, 2005 {Jan. 21, 2005) (Director's Determination)}. 2 48 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)). 2 49 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 50MB'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. 2so FAA Exhibit 1, Item 15. 251 Jn 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 {S1h 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 airportwas complying with its obligations under Federal Jaw. See FAA v. Naples Airoort Authority. Florida Director's Determination, 26, FAA Docket No.

**16~01~05** (March 10, 2003}. Page 31Skydive Myrtle Beach, Inc. v. Harry County Department ofAirports, South Carolina (FAA Docket No. 16-14-05) jurisdiction and are not used in support ofa claim against the County for an alleged violation ofany ofits 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 supplantFAA's ability to reviewthe matter, which may include consideration oflease terms and provisions, and safety allegations, within the scope ofthe applicable grant assurances. 252 Similarly, the argumentbythe Countythatits minimum standards were somehowvalidated because they were accepted by a South Carolina state court action, is also rejected since the FAA, notthe state, ascertains compliance with the federal obligations. Finally, the Directorrejects arguments made byComplainant andthe County discussing or alleging state law irregularities, state lawrequirements (e.g., requirements ofthe South Carolina Administrative Procedure Act), allegations ofthe County's legislative andjudicial irregularities, and claims before the Horry County Court of Common Pleas,253 because those are outside FAA'sjurisdiction. 

### 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 ofpersons for skydiving, instruction in skydiving, and rental and sales ofskydiving equipment. Commercial skydiving is notpermitted atthe airport except in a DZ254 approvedbythe FAA andthe Director, and in strict compliance withthese Minimum Standards and laws, including without limitation 14 CFR Part 105 and a [LOA] amongthe Operator, the County, and the applicable ATCT. The FAA and the Countymust determine that skydiving will notpresent, or create, a safetyhazard to the normal operations ofaircraft arriving or departing the airport before aDZ 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 CFRPart I05 andrelated FAAAdvisory Circulars, as amended;
• No operations permitted ifthey create a hazard to air traffic, persons, orproperty; • Operator shall enter into a LOA with the ATCT and the County;
• Ifnecessary or desirable byFAA or the County, the Countymayundertake a safety and efficiency studyto determine whetherthe Airport can safely accommodate skydiving operations without adversely affecting the efficient operation ofthe Airport;
• The County shall seek input from the FAA, and request its own analysis, before making any decision on establishment ofa new skydiving operation;
• Operators operating shall monitor wind and other weather conditions as well as airtraffic conditions and ensure that, given the level ofskill or licensure ofthe persons seeking to skydive, all skydivers will be able to land safelywithin the designated DZ;
• Operators shall maintainradio 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.lG-06-09 (November 28, 2007). 253 FAA Exhibit 1, Item 9, pages 1-6. 254 See FAA Exhibit 1, Item 26, page 44. Page 32Skydive Myrtle Beach, Inc. v. Horry County Department of Airports, South Carolina (FAA Docket No. 16-14-05)


### • Skydivers shall not enter or cross any runway, taxiway or enter an activeportion ofthe movement area without approval ofthe ATCT, and the operator shall ensure that all skydivers, customers and staff, are adequatelyinstructed

...;
• The County [may impose] additional reasonable restrictions or conditions on commercial skydiving operations

...to ensure the safe

...operation ofthe Airport and protection ofpersons from harm

...[and] operators shall complyfully andpromptly with all suchrestrictions and conditions;
• Operator shall provide currentlyFAA certificated commercialpilot with ratings adequate to fly the aircraft owned or leased bythe operator and a sufficient number ofpersonnel 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 ofall 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 inAttachment C, unless such limits or coverage are superseded by order oftheDirector."2

### s5 

### While the FAA strongly encourages airport sponsors to develop and apply minimum standards, they are not required to do so bylaw orthe grant assurances. Furthermore, Advisory Circulars are guidance, and they are not bindingupon airport sponsors. 

### In this Director's Determination, allegations ofany failure to develop or apply minimum standards will onlybe considered withinthe context ofenforcing Grant Assurance 22, EconomicNondiscrimination. 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, EconomicNondiscrimination states in part that the sponsor must"

...make the airport available as an airport for public use on reasonable terms andwithout unjust discrimination to all types, kinds, and classes ofaeronautical activities, including commercial aeronautical activities offering services to the public

..." 

### Inreviewing 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 continuallyharassed" bythe 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 ofaccess for an aeronautical activity orunjust discrimination." 258 

### SDMB argues thatthe "harassment" bythe County is manifested by (a) the inabilityto receive mail and parcels at its business address during normal business hours, (b) having its secure hangar broken into by Countypersonnel, (c) having been cited to meet fire code compliance, (d) the County taking photos ofits facility and temporarily blocking (locating a pile ofpeatmoss) 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. 256 See Northern Air Inc. v. County of Kent. Michigan Director's Determination, 17, FAA Docket 16-11-10 (March 28, 2013). 257 FAA Exhibit 1, Item 1, page 1. 2SB BMI Salvage Corp & 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 Page 33Skydive Myrtle Beach, Inc. v. Horry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) 

### (e) the Countynotprovidingtemporary hangar space during airport/ramp rehabilitation260 

### Each ofthese 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. 261 

### This issue appears to have been caused bya delaybetween receipt of County's correspondence and the role ofthe FBO accepting SDMB's mail requiring signature.262 

### This issue does not rise to a level ofcompliance concerning the County's federal obligations. The record does not demonstrate unjust discrimination orunreasonableness onthe part ofthe County. Rather, it shows that on March 20, 2014, the County issued a policy letter for tenant mail andparcel 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 Countypersonnel, without SDMB'sknowledge or permission. 264 

### SDMB states thatthe County "routinely entered Hangar 7 without SDMB permission for no legitimate purpose forcing SDMB to completelyre-inspect all ofits 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 notimplicate the County's federal obligations and they are unsubstantiated. The Director notes thatthe Space Use Permit's

### Rightof 

### Entry section provides that the "County shall have the right to enter the Space at anytime for anyreasonable purpose."266 

### No "unreasonable" or discriminatory purposes have been documented inthe record. Based on the above, the Director fmds no violation based on the Complainant's allegations ofbreaking in and entering. 

### c. Fire Code Violation In October 2013, a local fire inspector informed SDMB that it neededto make certain electrical repairs/modifications to its facilities to avoid a violation and fme. SDMB requested the Countyto correctthe electrical deficiencies, but eventually, SDMB hadthe repairs made. SDMB statedthat due to the County's failure to correct the electrical deficiencies, SDMB was issued a fme for the violations of$205.267 

### The record does not substantiate the allegation thatthe local frre regulations were unreasonably appliedto SDMB orthatthey were applied in anunjustly discriminatory marmer. As a result, the Director finds no violation of Grant Assurance 22 related to the fire code violations described in the pleadings. 

### d. CountyTaking Photos ofSDMB's Facilities and Interfering with SDMB's Parking Spaces SDMB contends thatthe Countytook photographs ofits facilities and located a pile ofpeat moss on three parking spaces used by SDMB.268 

### SDMB implies thattakingphotographs was an action on the part ofthe Countytaken without SDMB's knowledge or permission or/and somehow constitutes a wrong. Similarly, locating a pile ofpeatmoss in three ofSDMB's parking area, possibly as part ofairport construction, was also described as a confrontational action, and yetno relevant details are provided otherthan alleged malice bythe County.

z60 FAA Exhibit 1, Item 6, page 3-4. <61 FAA Exhibit 1, Item 1, pages 1-2. 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, items, page HCDA-000178.

**~** FAA Exhibit 1, Item 1, page 1. Also see FAA Exhibit 1, Item 3, pages 18-19 255 FAA Exhibit 1, Item 6, page 5. 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 Page 34Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) 

### Neither action constitutes a compliance violation since the record does not substantiate unjust discrimination or unreasonableness onthe part ofthe County. Therefore, the Director fmds no violations ofGrant Assurance 22. 

### e. Temporary Hangar Space (Use of Hangar 1 l As part ofits Complaint, SDMB argues thatthe County did notprovide SDMB temporaryhangar space during airport/ramp rehabilitation at CRE in the summer and fall of2013. 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 aircraftbecause the contract for the plane required hangar storage when not flying." 270 

### SDMB also adds that "on one hand [the County] has argued that SDMB's continued occupancy ofHangar 7 will disrupt a planned ramp rehabilitationprojectbut, onthe otherhand, itrefuses to consent to SDMB's assumption ofthe 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 of2013, manytenants and airport operations had to be temporarilyrelocated over the course ofthe ramp repairs

...During Phase 1 ofthe project, which occurred in the summer and fall of2013, these temporaryrelocations occurred without incident There is no reason why such relocations now constitute discrimination orharassment simplybecause [the County] is advancing into Phase 2 ofthe 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 I [was] not an available alternative to Hangar 7." 274 

### The Countyprovides a reasonable and plausible explanation concerning Hangar 1's suitability,275 

### and this is well within its authority to manage assets, services, agreements, and leases during construction.276 

### It appears that the Countydid not act unreasonably when it declined to grant a lease for Hangar I as a replacement for Hangar 7_277 

### The Directornotes that although the record contains e-mail communications on the temporaryhangar space betweenthe County and SDMB, those same communications bring the on-going eviction proceedings into the discussion. SDMB'sSpace Use Permit expired in January 2014, 278 

### and SDMB was not operating with a valid agreement with the County.279 

### SDMB's claim- thatthe County must accommodate SDMB'srequests, is notpersuasive, especially when SDMB's inability to obtain hangar space is not a violation ofthe County's obligation to provide airport access. Grant Assurance 22 does notrequire the Countyto provide specific hangars orhangartypes. 280 

### Finally, the alleged failure to accommodate tookplace a year ago. In

### addressing allegations of noncompliance, the FAA will make a determination as to whether an airport sponsor is currently in

259 FAA Exhibit 1, Item 6, page 3-4. 270 FAA Exhibit 1, Item 6, page 3-4. 271 See Figure 2 for the location of Hangar 1. 272 FAA Exhibit 1, Item 6, page 11. 273 FAA Exhibit 1, Item 5, page 2. Z 74 FAA Exhibit 1, Item 5, page 14. 275 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 ofAirport Commissioners. and Los Angeles World Airoorts. Director's Determination, 19 and 22, FAA Docket No. 16-06-07 (June 21, 2007). 277 See FAA Exhibit 1, Item 6, page 11. Z7B FAA Exhibit 1, Item 3, page 1. Z 79 FAA Exhibit 1, Item 1, Exhibit 3, pages 56-57. zso See Thermco Aviation. Inc. and A-26 Company v. County of Los Angeles. Los Angeles Board of Airport Commissioners. and Los Angeles world Airports. D'lrector's Determ·lnation, 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 Airoort 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 ofcurrent tenants and subtenants when planning for the future development of the airport." (citing [See Santa Monica Airport Association KruegerAviation Inc and Santa Monica Air Centerv. Citv ofSanta Monica Final Agency Decision, FAA Docket No. 16-99-21 {February 4, 2003). Page 35Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) 

### compliance with the applicable Federal obligations. The Directorrejects SDMB's claim thatthe County's actions concerning the temporary use ofHangar 1 violate GrantAssurance 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, parkingrestrictions, and the restrictions on grilling and alcohol use.281 

### Onthe issue of managingthe use ofvehicles at the airport and procedures orrequirements for holding special events,282 

### the Director finds that the County, as the airport sponsorhas the discretionto implementrules for their management, and the obligation to ensure those activities do not create safetyhazards. The record does not indicate that the County's requirements on the use ofvehicles atthe airport and requirements for planned events were only applied to SDMB. On the issue ofalcohol, there is nojustificationfor SDMB to argue that not permitting alcohol is contraryto the federal obligations since it is not an aeronautical activity, is an issue oflocal 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 ofthe County's actions are unreasonable and unjustly discriminatory. SDMB summarizes its position, stating that the Countyhas organized "awell-orchestrated continuous plan [including minimum standards] to remove a federally recognized aeronautical activity and preclude it from legally operating." SDMB also argues that the Countyhas cancelled a long-term lease, denied SDMB's requestto assume anotherhangar lease, onlypresented a lease no rational business could agree to, and fmally evicted SDMB, and that these are actions contraryto the County's federal obligations.284 

### The Countyrejects SDMB's allegations, and asserts that "SDMB has notmetits burden ofshowingthat it requested similar terms and conditions as other similarly situated airport users and was denied for unjust reasons," did not identifY "any other similarly situatedtenants at the airport, i.e., tenants who are making the same or similar uses ofthe airport facilities" or identifY "any othertenants have been offered different lease terms or rates than SDMB."285 

### The Countyrejects "claims ofunjust 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." 286 

### Finally, the County states that "SDMB continues to occupy the hangar unlawfully following expiration ofthatpermit" and the County "has filed an ejectment action in South Carolina state court against SDMB and the magistratejudge has ordered eviction. SDMB has appealed this order." 287 

### The Director organized SDMB's allegations as follows: (a) Inabilityto renegotiate a long-term lease, and eviction; 

### (b) Unreasonable conditions; (c) Differing treatment ofSDMB compared with other commercial tenants,288 

### and; (d) Minimum standards.289

2s1 FAA Exhibit 1, Item 6, page 5-7. For example, see paragraphs No. 12, 15, 17, and 18. The Director notes that SDMB raises other instances where it claims unjust discrimination or other possible violation ofthe County's federal obligations. Unless specifically discussed, the Director f!nds 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 ofthe 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. 283 See, e.g., 14 CFR §105.7, 14CFR §91.17. 284 FAA Exhibit 1, Item 6, page 12. 285 FAA Exhibit 1, Item 3, pages 17-18. {citing Springfield Flight A cad. v. Citv 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'IAirlift Support Corp. v. Fremont Citv. Bd of Comm'rs Final Agency Decision 15, FAA Docket No.16-98-18, (Sept. 20, 1999)) 286 FAA Exhibit 1, Item 3, page 1. 287 FAA Exhibit 1, Item 3, page 1. 288 FAA Exhibit 1, Item 1, page 1. Also see FAA Exhibit 1, Item 3, pages 18-19 289 FAA Exhibit 1, Item 6, page 7. Page 36Skydive Myrtle Beach, Inc. v. Horry County Department of Airports, South Carolina (FAA Docket No. 16-14-05)



### a. Inability to Renegotiate a Long-Term Lease, and Eviction In its Complaint, SDMB claims thatthe County's actions have resulted in SDMB beingunable to renegotiate a written long-term lease. 290 

### SDMB adds thatthe County cancelled its long-term lease [with the previous airport operator], denied SDMB the ability to assume another hangar lease, and was onlypresented a lease which no "rational business could agree to." SDMB also states that it was evicted.-" 291 

### The Countyrejects SDMB's claims statingthat "reasonable access under Grant Assurance 22 means for the use ofaeronautical facilities onthe airport, not necessarily the ability to lease particular space [hangar] on the airport."292 

### 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 ofskydiving operations that would constitute a violation of[Grant Assurance 22].''293 

### Finally, the County notes that SDMB refusal to enterinto the offered 

### Space Use Permitfor Hangar 7 (after it expired) caused SDMB to violate its 

### OperatingPermit, but even whenthe County sent SDMB a notice oftermination, 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 notpersuasive. As mentioned in the 

### Background section, in August 2013, after the Countyresumed control ofthe Airport, "all tenants were asked to sign a temporary 

### Space Use Permit with a six-monthterm, with the intentthat long-term leases would thereafter be negotiated."295 

### That is not an unreasonable action since the County's assumption ofthe airport from the previous airport operator terminated all existing agreements. 296 

### SDMB was among several commercial aviation tenants who executed these temporary permits in 2013297 

### While on-airport operators mayneed 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 thatthere was reasonable accommodation under the circumstances. On January 31, 2014, the 

### Space Use Permit under which SDMB hadbeen operating expired, yet SDMB continues to occupy the hangar. 299 

### OnApril 7, 2014, months after the expiration, the Countynotified SDMB that eviction proceedings wouldbe initiated ifSDMB did not accept the County's offer ofa new 

### Space Use Permit300 

### SDMB rejected the County's offer because SDMB disagreed with many ofthe terms. Bythis time, as the record establishes, a series ofsafety incidents related SDMB's skydiving operations had already taken place. As part ofthe offer for a new

### Space Use Permit, the County identified multiple instances ofunsafe practices and incidents bySDMB,301 

### all ofwhich constituted violations ofSDMB's existing (albeit expired) 

### Space Use Permit and its 

### OperatingPermit?02 

### Indeed, the 

### Space Use Permitrequired SDMB to "fully [comply] with

VJO FAA Exhibit 1, Item 1, page 1. Also see FAA Exhibit 1, Item 3, pages 18-19 29l FAA Exhibit 1, Item 6, page 12. m FAA Exhibit 1, Item 3, page 17 (citing Skydive Monroe Inc. v. Citv of Monroe. Georgia. Director's Determination, 20, FAA Docket No. 16-06-02, {Mar. 30, 2007)}. 2 '!3 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)}. 294 FAA Exhibit 1, Item 3, page 17. 295 FAA Exhibit 1, Item 5, page 9. 2S6 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. 297 FAA Exhibit 1, Item 5, page 9. 298 See Skydive Monroe. Inc. v. Citv of Monroe Georgia. Director's Determination, 10, FAA Docket No. 16-06-02 (March 30, 2007). 299 FAA Exhibit 1, Item 3, page 1

. .wo FAA Exhibit 1, Item 1, Exhibit 3, pages 2354-57. 301 FAA Exhibit 1, Item 1, Exhibit 3, pages 54-57.

**02** FAA Exhibit 1, Item 3, page 12-13. Page 37Skydive Myrtle Beach, Inc. v. Horry County Department of Airports. South Carolina (FAA Docket No. 16-14-05) 

### all safety and security policies/directives as established by the Airport," 303 

### while the OperatingPermit required SDMB to "complywith

... all [County's] directives

..., which now exist or which may be hereinafterbe [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 understandingthat a violation ofanyterms 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 contraryto the County's federal obligations when the denial ofthe lease is based on documented violations ofprevious arrangements, including safety violations. The County's refusal to renew the existing lease, restricting further permitting, and eventually, pursuing eviction, were notunreasonable or unjustly discriminatory. The grant assurances requirement ofreasonable access would notrequire SDMB to provide access to an operator who committed numerous, documented violations ofexisting agreements. The County and SDMB entered into a temporary Space Use Permit allowing SDMB to occupyHangar 7 through January 31,2014,306 

### but that after its expiration, SDMB refused to enter into a subsequent agreement. SDMB continued its use ofHangar 7 and ofthe 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 ofwhich can be categorized as violations ofthe terms and conditions SDMB agreed to in its first lease. The record establishes thatthe County did not renew the existing lease and initiated the eviction proceedings for cause. The County's actions were within the discretion and authority ofthe airport sponsor. Moreover, not only does the record lack any evidence showing thatthe County has taken steps to prevent SDMB from accessing the Airport, but in fact shows thatthe County offered a reasonable alternative despite SDMB's record ofnon-compliance withterms and conditions ofthe previous lease.308 

### SDMB continues to operate at CREtoday. The Director finds the County declined to enter into a lease with SDMB, in part based ontheir history of lawsuits, Part 16 complaints, and threats offuture litigation. Thus, the Director finds thatthe County is not in violation ofGrantAssurance 22 byrefusing to renew orproviding 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 ofits business at CRE.309 

### According SDMB, it "received an unreasonable offerto continue occupation ofits business in exchange for 10-24% ofits gross proceeds," 310 

### and the Countymaintained SDMB "would have to double its liability ofslip and fall policycoverage to $2,000,000 and pay $1,200 per month forHangar 7
...during the 6 month temporary period for a long-term lease." 311

303 FAA Exhibit 1, Item 5, page HCDA-000001. 304 FAA Exhibit 1, Item 3, page 8. 305 FAA Exhibit 1, Item 1, Exhibit 3, pages 54-57. 306 FAA Exhibit 1, Item 1, Exhibit 3, page 54-57. 307 FAA Exhibit 1, Item 3, page 1. 308 FAA Exhibit 1, Item 1, Exhibit 3, pages 54-57.

**30**

**~** FAA Exhibit 1, Item 1, page 1. Also see FAA Exhibit 1, Item 3, pages 18-19. 31

### °FAA Exhibit 1, Item 1, pages 1-2. 311 FAA Exhibit 1, Item 1, page 4, and Item 1, Exhibit 1, pages 14-15. Page 38Skydive Myrtle Beach, Inc. v. Horry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) In

### response, the County denies that its actions are contraryto its federal obligations,312 

### and argues that SDMB's rejection of"[the County's offer]," and refusal "to execute a lease

...on more favorable terms than those employed bycomparable tenants does not qualify as a denial ofaccess on reasonable terms without unjust discrimination." 313 

### A review ofthe recordprovides no evidence to substantiate the claim that the percentage ofgross proceeds (I

### 0-24%), the $1,200 monthly charge, or the $2 million in insurance are unreasonable orunjustly discriminatoryper se. There is no significant information discussing other rates and charges, or information showingthat the insurance requirement, were excessive, unobtainable, or applied in an unjustly discriminatory manner.314 

### Attachment C ofthe Minimum Standards, which covers tenant's insurance requirements at CRE, shows that the level ofinsurance imposedupon 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. 315 In

### that respect, itprovides a basis from whichto compare what was imposed upon SDMB to that imposed on other commercial tenants. A review ofthe 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 monthlylease percentage to 10%,316 

### therefore accommodating SDMB's concern regarding this "unreasonable" condition imposed bythe County. Based on this, the County's action concerning Complainant, including rates and charge and insurance requirements, are not reasonable, unjustly discriminatory, or contraryto 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 similarlyto comparably situated airporttenants
...constitutes prohibited discrimination," 317 

### and that it was "treated differently from other commercial tenants.'m8 In

### response, the Countynotes that "the onlyreference inthe record to othertenants 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 thatthe County "offered SDMB the same terms as have been offeredto, and accepted by, other commercial aeronautical service providers at [CRE]

..." Finally, the Countytakes the positionthat SDMB's choice "to reject [the County's offer]," and refusal "to execute a lease

...on more favorable terms thanthose employed bycomparable tenants does not qualify as a denial of access onreasonable 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 atthe airporthave permits instead or leases. The record contains no evidence that any other similarly situated tenantwith a lease at CRE was either evicted or otherwise challengedbythe County in any way contraryto 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

3n FAA Exhibit 1, Item 5, pages 1-2. 313 FAA Exhibit 1, Item 3, pages 17-18 (citing Nat'IAirlift Support Corp. v. Fremont City. Bd of Comm'rs. FAA Docket No. 16-98-18 atlS.) 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 avalid 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 LiabilityandProperty Damage Premises Policyfor 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 m·m·lmum standards do not support this assertion. See FAA Exhibit 1, Item 6, Exhibit A, page 85. 3l 6 FAA Exhibit 1, Item 1, Exhibit 3, page 23. 3l1 FAA Exhibit 1, Item lA. m FAA Exhibit 1, Item 1, pages 1-2. 3ls FAA Exhibit 1, Item 3, pages 17-18. (citing Nat'! Airlift Support Com. v. Fremont City. Bd of Comm'rs. FAA Docket No. 16-98-18, at 15). Page 39Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) been providedterms and conditions thanthose imposed upon SDMB. SDMB fails to identify specific similarly situated tenants, preventing any comparison on which to establish unjust discrimination. Even ifthe Complainant described another similarly situated tenant, any difference between anytwo leases or permits is insufficient to establish a violation ofGrantAssurance 

### 22 on its own. Differences, had they beenprovided, would depend on theirjustification. In this case, "similarly situated" would mean another tenant with record ofnon-compliance with terms and conditions or a history ofsafety incidents and violations such as the one SDMB has accumulated. The record contains no evidence ofsuch a tenant. Without evidence to support the allegations, SDMB's claims are unsupported. Therefore, the Director finds thatthese actions bythe County, are not contraryto GrantAssurance 

### 22. 

### d. Minimum Standards SDMB argues that the "minimum standards [did] not applyto anytenant with an existing lease

...SDMB is the only current occupant without a lease"320 SDMB objects to the timing ofthe promulgation ofthe minimum standards, in part because "while counsel for [the County] was arguing for dismissal ofSDMB's initial Part 16 Complaint due to SDMB's lack ofgood faith, [the Countywas] in the process of'covertly' draftingpunitive and 

### ultra vires minimum standards for presentation and enactment by [the County's] Council."321 SDMB argues that the manner inwhich the County acted in adopting the minimum standards was per se "discriminatory."322 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 anyrecognized 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 onmany aspects ofthe minimum standards including space use permit v. lease, insurance requirements, use ofvehicles at the airport, requirements for planned events, restrictions on alcohol use, enforcement provisions, andthe requirement for a safety and efficiency study.324 SDMB opposes the minimum standards because they are "additionalrestrictions beyond those articulated by FAA

...," andthatthe County "hasbeenretroactivelypromulgating [themwas] clearlytailored to legitimize its prior accusations and unwritten policies

..

### :msin an efforttojustifythe allegations ofrule and policy violations. Finally, SDMB adds that although "MYR [Myrtle Beach International] would have separate standards,326 the County "cannottreat geographically separate airports under itsjurisdiction differently for no legitimate purpose." SDMB adds "admittedly, CRE is not identical to 

### MYR, HYW or 5J9, buthaving materially different leases, rules relating to customers, food consumption, access, parking, and grilling

...is impermissible discrimination without substantialjustification."327 The Countyrejects these allegations and states thatthe "adoption ofminimum standards for all [CRE] airport users does not constitute unjust discrimination under GrantAssurance 

### 22, and instead" is "consistent with the County's obligations under its GrantAssurances as part ofoperating CRE "in a safe and efficient manner.'ms The County defends the adoption ofminimum standards because it "is the responsibility [ofthe Countyto

32

### °FAA Exhibit 1, Item 11. 321 FAA Exhibit 1, Item 11, page 2. 322 FAA Exhibit 1, Item 11, page 5. 123 FAA Exhibit 1, Item 11, pages 2, and 4-5. 324 FAA Exhibit 1, Item 11, page 4. 325 FAA Exhibit 1, Item 6, pages 6-7. 326 FAA Exhibit 1, Item 6, page 7. 327 FAA Exhibit 1, Item 6, page 3. ns FAA Exhibit 1, Item 8, page 1. Page 40Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) enforce] adequate rules, regulations, orordinances as are necessaryto ensure the safe and efficient operation ofthe airport."329 The Countyalso recognizes that "such conditions must
...bereasonable and not unjustly discriminatory

...must berelevantto the proposed activity, reasonably attainable, and uniformly applied." The Countyrejects Complainant's claim that SDMB was not consulted orprovided an opportunityto participate in the minimum standards process and states that it has "implemented minimum standards at each ofthe airports it manages, including CRE" and that in the case ofCRE, these were based on the County Council's Ordinance No. 36-14, adopted afterthe requiredthree readings on May 20, 2014. 330 The Countytakes the position that it not only "enacted minimum standards for CRE that are uniformly applicable to all users ofthat airport," but also that they complywith its grant assurances in a manner consistent with "commonpractice[s] among municipalities that own more than one airport." 331 Adopting minimum standards is a valid action on the part ofthe airport sponsor. A review ofthe minimum standards indicates thatthey covermany aeronautical activities and services including FBO services, aircraft maintenance, aircraft sales, aircraftrental, charter operations, and flight training. A review ofthe minimum standards concerning skydiving operations shows that, as written, they are not contraryto the County's federal obligations. The standards outlined bythe 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 atthe CRE, are especially in line with FAArecommendations and guidance. The County's is within its authorityto promulgate minimum standards that address skydiving operations as an aeronautical activity, references compliance with I 4 CFRPart I05, require an LOA and adequate ATCT coordination, defines aDZ,requires trained personnel and certifications, incorporates a safety and efficiency study in the process, and reserves the abilityto add safety-based restrictions. A review ofSection Six (H) ofthe minimum standards, entitled 

### Skydiving Operator, is consistent with the scope and detail ofthe sections covering other activities. The County's correspondence with SDMB clearly states the County's interest in continuing skydiving operations.332 Therecord establishes thatthe County has published minimum standards for CRE or other airportunder itsjurisdiction.333 SDMB's claim that the County "has beenretroactivelypromulgating minimum standards" is notpersuasive nor is it per se a violation ofthe grant assurances. There is a difference between breaking leases or agreements in order to impose "newminimum standards" and institutingminimum standards to be applied prospectively. Contraryto SDMB'sposition thatthe County "cannottreat geographically separate airports under its jurisdiction differentlyfor no legitimate purpose," the Directornotes that the factthat SDMB itself recognizes that "CRE is not identical to MYR, HYW or 5J9," undermines the argument.334 The FAA would expectthatminimum standards might vary from airportto airport, even within an airport system operated by one sponsor. Much can vary across airports including types ofleases, services, and levels ofservice, levels ofinvestment, geographic and layout limitations, etc. Moreover, in light ofthe safety issues documented in the record, the County's actions relating to establishing, updating, and enforcingminimum standards are not onlyjustified, butnecessary. As provided in GrantAssurance 22, the Countymustretainthe abilityto 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 ofthe 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). 33

### °FAA Exhibit 1, Item 8, page 2. 931 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). :;sz 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. 3g4 FAA Exhibit 1, Item 6, page 3. Page 41Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) Finally, concerning the manner in whichthe County acted in adopting the minimum standards, the Director fmds no violation ofthe County's federal obligations. While GrantAssurance 22 allows the County to establish "suchreasonable, and not unjustly discriminatory, conditions to be met byall users ofthe airport as maybe necessary for the safe and efficient operation ofthe airport

.. } 35 it does notimpose FAA overview overthe local or state process governing the adoption ofsuchrequirements. 

### 3. Unreasonableness or Unjust Discrimination (Safety) Under GrantAssurance 22(h) ''the sponsormay establish suchreasonable, and notunjustly discriminatory, conditions to be metbyall users ofthe airport as may be necessary for the safe and efficient operation ofthe airport

...." Under GrantAssurance 22 (i), "the sponsormayprohibit or limit any given type, kind or class of aeronautical use ofthe airport ifsuch action is necessaryfor the safe operation ofthe airport

..." 336 Both subsections permitthe sponsorto exercise control ofthe airport sufficientto preclude unsafe conditions or activities as long as the sponsorhonors obligations to provide access to the airport on reasonable and not unjustly discriminatoryterms and conditions. In all cases involvingrestrictions on airport use imposed by airport owners for safety reasons, the FAA makes the final determination onthe reasonableness ofsuch restrictions whenthose restrictions appear to deny or limit access to, oruse of, the airport. 337 When making 14 CFRPart 16 fmdings regarding matters of aviation safety, the Directorwillrely on other offices within the FAAfor their safety expertise and experience.338


### a. Overview of Skydiving Operations Parachutejumping (or skydiving) operations, which the FAA defmes as the activities performed for the purpose ofor in support ofthe descent parachutists (or skydivers) whojump from aircraft, is a segment of general aviation. 

### It is also a recognized aeronautical activityby the FAA. According to the USPA, there are approximately 2.16 to 3 millionjumps annually inthe United States. While inthe United States, skydiving is, for the most part, a self-regulated sport, basic safetyrequirements are established bythe USP A while federal requirements are found in the Federal AviationRegulations (FARs ). Accordingto 14 CFR 119.1(e)(6), parachute operations conducted as nonstop flights within a 25-mile radius of the departure airport are exemptfrom the rules pertainingto commercial operators and are allowed to operate under 14 CFRPart 91. Additional parachute operations regulations are contained in 14 CFRPart I05 Parachute Operations. While most ofthe regulations concernthe aircraft, pilot and rules offlight (e.g. 14 CFRPart 91), 14 CFRPart 105 regulates when, and wherejumpsmaybe made, as well as requirements for parachute equipment and packing. 14 CFRPart 105 is intended to assure the safetyofthose notinvolved inthe sport, including persons and property onthe surface and otherusers ofthe airspace. The FAA also regulates certain aspects of parachute rigging under 14 CFRPart 65, Subpart F ParachuteRiggers. In skydiving, the drop zone (DZ) orlanding area is a designated area clear ofobstacles, and is usually marked. Some drop zones are located beneath complex airspace, andjump organizers will have a Letter ofAgreement (LOA) withthe appropriate FAA air traffic control facility to address site-specific issues and concerns. Some

335 See Grant Assurance 22 (a) and (h). 336 Also see Chapter 14Restrictions Basedon Safety andEfficiency Procedures and Organization, FAA Order 5190.66Airport Compliance Manual. 337 FAA Order 5190.68, § 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 Jon Airport Improvement, sections 47101-47142. 338 See In the Matter of Compliance with Federal Obligations by the City of Santa Monica. Ca!!fornia. Director's Determination, 38, FAA Docket No. 16-02-08 {May 27, 2008). Page 42Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) DZs are located on airportproperty, andrequire the airport's permission. Each day, beforejumping begins, the drop zone operator will contactthe FAA Flight Service Station for the latest weather andwinds aloft forecast. Thejumppilotfiles a Notice to Airmen (NOT 

### AM) at least I-hourbefore the frrstjump. NOTAMs help alert otherpilots about thejump. Duringjump operations, pilots followprocedures in 14 CFRPart 91 and 14 CFR Part 105. The pilotwill contact air traffic control a few minutes before thejump, advising ofthejump altitude and exittime. AirTraffic will advise ofany other aircraft or unsafe conditions inthe area. Once thejumppilot ensures alljumpers have exited, he or she advises airtraffic control and makes a descent to the airport.339 

### b. Skydiver's Information Manual (SIMl and Basic Safety Requirements (BSRl The Skydiver's fuformation Manual (SIM) provides basic skydiving standards BSRs (Basic Safety Requirements) and recommendations agreed upon byUSP A members for the conduct ofsafe and enjoyable skydiving340 

### In 20II, and complementingthe SIM, USP A published its Skydiving Aircraft Operations Manual. Thepurpose ofthis manual is to provide drop zone operators, pilots, aviation supportpersonnel, skydivers and others who mightbe involved in aircraft operations with additional and clarifyingprocedures and practices which supplement, butdo not supplant, existing rules and guidelines.341 Although USP A is a voluntarymembership association with no regulatorypower, USP A can suspend or revoke anyUSP A license, rating, award, appointment, ormembership it issues. Compliance withthe BSRs contained is mandatoryfor participation in USP A programs. The BSRs represent the commonlyaccepted standards for a reasonable level ofsafety. Onthe issue ofdrop zones, the SIM states that drop zone requirements are as follows:

• Areas used for skydiving shouldbe unobstructed, withthe following minimumradial distances to the nearesthazard (a) solo students and A-license holders -100 meters; (b) B-and C-Iicense holders and all tandem skydives- 50 meters; and (c) D-license holders- 2 meters.

• Hazards are defmed as telephone andpowerlines, towers, buildings, open bodies ofwater, highways, automobiles, and clusters oftrees coveringmore than 3,000 square meters.

• Manned ground-to-air communications to be present onthe DZ during skydiving operations.342 

### c. SDMB Position on Safety SDMB characterizes the County's actions, including attempts to restrictthe landing area and the continued practice ofreporting authorized parachute operations (landings) as violations

.... under the 'sheepskin' of 'safety concerns' as "unreasonablyrestrictive and discriminatory as applied to anFAA recognized aeronautical activity." 343 SDMB asserts thatthe County has imposed arbitrary and unreasonable restrictions and requirements underthe "pretext ofsafety," and thus interfering with SDMB's aeronautical activityskydiving.344 SDMBstates that "from May2012 to August 2013

... and over 2,500 parachutejumps, SDMB received no complaints from FAA, [the ATCT], or [the County],"345 butthat "from August 2013, to date (the period since [the County] has resumed control ofCRE), SDMB has received repeated complaints and been

339 See FAA Exhibit 1, Item 19, Skydivingf andParachute Operations- P-8740-57. :>40 See FAA Exhibit 1, Item 246. In 2011, USPA published its SkydivingAircraftOperationsManual. 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. Cl4l FAA Exhibit 1, Item 24A. *FAA Exhibit 1, Item 24B, 2014-2015 Skydiver's Information Manual, Section 2, pages 7-8. 343 FAA Exhibit 1, Item 1, page 10. 344 FAA Exhibit 1, Item 1, page 1. Also see FAA Exhibit 1, Item 3, pages 18-19 345 FAA Exhibit 1, Item 3, page 3. Page 43Skydive Myrtle Beach, Inc. v. Harry County Department of Airports. South Carolina (FAA Docket No. 16-14-05) 

### subjected to other intimidation attempts." SDMB further states thatthe County and the ATCT have a "partnership" that initiated policing "unusual" airport activity and refereeing the boundaries ofSDMB's primary [DZ]," and they "are working together to report and enforce subjective unusual incidents." 346 

### Complainant believes that it "became the victim ofa targetedplanto beremoved from CRE by [the County]

..."347 

### As part ofits defense, SDMB states that pursuantto its OperatingPermit, 

### it was "permitted to land anywhere within 5 (five) miles ofthe airport, ifnecessary." 348 

### SDMB goes further and states "a skydiver landing on a runway is not a 'pedestrian' as intended in Part 139 or otherFAA regulations." SDMB cites AC 105-2E, 116(c)(2) SportParachuting, 

### which states in relevant part "while skydivers attempt to land in such areas, attimes there maybe 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 ofAgreement (LOA) between the ATCT and the Countyrelatingto active movement areas, and argues that the County cited "multiple violations ofnon-existentrules and regulations," and created "anew unpublishedreporting system trackingparachute landings targeted for SDMB and its clients."350 

### Finally, SDMB objects to the mechanics ofthis reporting system itself. SDMB argues that "underthe direction of [the County], [the ATCT] has initiated a reportingprocess whereby conduct in compliance with 14 CFRPart 105 is styled as 'unsafe' and in violation ofPart 139 resulting in the unnecessary expenditure ofresources ofall concerned parties."351 

### SDMB also states that beginning May 2014, the County "began recording Unusual IncidentReports (UIR) and directed [the ATCT]

... to file "Mandatory Occurrence Reports" (MORs) withFAA

..." 352 

### and the "overwhelming bulk ofthe U1Rs 

### are against SDMB. Onlytwo UIRs produced by [the County] are unrelated to SDMB."353 

### d. The Countv's Position Concerning Safety The Countyresponds that it "has properlybalanced its obligations

... under Grant Assurance 22

...to maintain [CRE's] movement areas in a safe and serviceable condition." The County adds that it followed "FAAprotocols for safetyrisk management [SMS], and is properlytracking safety incidents in orderto develop means to mitigate the hazards they present." 354 

### The Countytakes the position that its "conduct falls well within the bounds ofpermissible regulation under GrantAssurance 22

..."andthat 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 ofthe LOA, and that in fact, "upon review ofthe 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 ofits skydivers cross active runways or

346 FAA Exhibit 1, Item 3, page 3. 347 FAA Exhibit 1, Item 6, page 2. 348 FAA Exhibit 1, Item 1, Exhibit 1, page 112. 349 FAA Exhibit 1, Item 9, page 8-9 (and footnotes). 350 FAA Exhibit 1, Item 6, page 5. 351 FAA Exhibit 1, Item 1, pages 1-2.

**52** FAA Exhibit 1, Item 9, page 8-9 (and footnotes). 353 FAA Exhibit 1, Item 9, page 8-9 (and footnotes 354 FAA Exhibit 1, Item 3, pages 1-2. 355 FAA Exhibit 1, Item 3, page 20. 356 FAA Exhibit 1, Item 3, page 7. Page 44Skydive Myrtle Beach, Inc. v. Harry County Department of Airports. South Carolina (FAA Docket No. 16-14-05) 

### taxiways." However, the County continues, "inthe following months, SDMB's skydivers and personnel continued to cross active runways and taxiways, either on foot or in golfcarts, without first asking the [ATCT's] permission. This uncontrolled movement creates a significant safety risk to other aeronautical users at CRE

..." 357 

### The Countydefends its actions to "mitigate the safetyhazard created each time one ofthese vehicle or pedestrian incursions occurred," and that it "developed a standard report form to track such deviations, along with all other safetyhazards at CRE."The County adds that the ATCT and County staffreport "safety incidents involving any aeronautical user" at CRE.358 

### The County disagrees with SDMB's objections to the ground communications and documentationprotocols for safe skydiving operations atthe airport's DZ. The Countynotes that SDMB'sposition is contradicted "bythe documents that SDMB attaches to its Complaint, which clearly state the exact location ofSDMB's proper [DZ]" and that safetyis compromised by "the high number of'inadvertent' landings outside the [DZ] by SDMB skydivers

..." 359 

### The County concludes that "neitherthe documentation protocol northe 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 byall users ofthe airport as maybe necessary for the safe

...operation ofthe airport." The County supports this positionby statingthat such conditions are contained in the LOAs, "which requires pedestrians and vehicles to contactthe [ ATCT] before crossing an active runway or taxiway and potentially causing an accident with aircraftusing thatrunway ortaxiway." 360 

### e. Safety of Skydiving Operations at CRE Before analyzing the safety allegations, the Director fmds that it is necessary to review the record in orderto ascertain the nature, scope and detail, frequency, and severity ofthe safety incidents involving skydiving at CRE. It

### is a common and expectedpractice for FAA to collect and analyze safety data on safety events to prevent theirrecurrence. Data collection and analysis is also used to support a more proactive approach to managing risk. 

### In line with safety managementmethodologies, FAA analyzes data proactivelyto 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 accidentto happen, then figuring out howto prevent itfrom happening again. As part ofthe review ofthis 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 bythe parties andhave been identified as part of FAA inquiries. The safety ofskydiving operations at CRE are represented in terms ofskydiving-related safety incidents in the form ofVPDs, MORs, and UIRs [Vehicle PedestrianDeviations (byFAA), Major Occurrence Reports (by FAA), Unusual IncidentReports (by County)], and entries inthe CRE ATCT skydiving log. 361 

### All of these are valid safetymanagement metrics as data collection methodologies. The table below combines the data.

m FAA Exhibit 1, Item 3, page 2. 358 FAA Exhibit 1, Item 3, page 3. 359 FAA Exhibit 1, Item 3, page 3-4. 360 FAA Exhibit 1, Item 3, page 23. 351 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 DataAnalysis and Reporting Toot {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. Page 45Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) 

### Table 1- Skydiving Safety Incidents at CRE (March 2013- September 2015)

": :;, 

### . 

### ; 

# ..-. ..,. ·._ ·.. R_eport

.·_.••
_ •.••••..



### <~- ....... _._ . (. Deta_ils

.·.· 

## ..···· ' .. 

### '

# ...··. ·

## ... ._.·

- . 1. March 29, 2013 Two skydivers landed outside the DZ, west of landing zone and east oftaxiway A. 362 2. May 18,2013 A skydiver landed between runway and taxiwayA, while another crossed the taxiway without 3. May 22,2013 4. May 2S, 2013 

### s. May27, 2013 6. JulyS, 2013 7. July 17, 2013 8. July 19, 2013 9. September 3, 2013 10. September 28, 2013 11. October 1S, 2013 12. October 19, 2013 13. October 19, 2013 14. October 20, 2013 1S. October 20, 2013 16. October 21, 2013 17. October 27, 2013 18. November 2, 2013 19. November 10, 2013 20. November 13, 2013 21. November 17, 2013 22. December 21, 2013 23. December 23, 2013

362 FAA Exhibit 1, Item 21. 36a FAA Exhibit 1, Item 21. 364 FAA Exhibit 1, Item 21. 365 FAA Exhibit 1, Item 21. 366 FAA Exhibit 1, Item 21. 367 FAA Exhibit 1, Item 21. 368 FAA Exhibit 1, Item 21. 369 FAA Exhibit 1, Item 21. ATC approval. 363 A skydiver landed between taxiway A and runway 23. Picked up by FB0. 354 A skydiver landed approximately 200 feet to the left of runway 23 approach lights.365 A skydiver landed on taxiway A. 366 A skydiver landed between taxiway A and runway 23. Another landed on the southwest side ofthe airport. 367 A skydiver had a cut away and landed in neighborhood or
...golf course. 363 Two skydivers landed west of runway 23 and abeam the ATCT. 369 SDMB acknowledged that one of its employees was not properlytrained, which resulted in an offfield landing. 370 Eight (8) out of 10 skydivers landed on the beach, notthe airport. 371 ATCT manager reported that skydivers "walked across taxiway B, and then into the ramp." 372 A skydiver landed at Barefoot golf course pass Highway 31. 373 Nightjump, but skydivers had no lights as per FARs. 374 A skydiver landed on taxiway Band was injured. 375 Nightjump, but skydivers had no lights as per FARs. 376 The ATCT reported to "uncertified" nightjumps with an off-site landing requiring medical assistance. 377 A skydiver landed on the taxiway adjacent to the DZ and was evacuated to the hospital.373 A skydiver missed the DZ and crossed runway at mid-field. 379 A skydiver walked across the runway. 380 An incursion onto the active runway occurred when ajumper who missed the DZ walked across the runway. 381 A skydiver crossed taxiway Bwithout approval. 382 Two skydivers landed by Highway 31, while 6 landed northwest of runway, plus a cut away chute. 383 out of 14jumpers, 111anded well outside the DZ, landing on various parts ofthe runway, taxiway, and Highway 31. 334

370 FAA Exhibit 1, Item 1, Exhibit 1, page 12. 371 FAA Exhibit 1, Item 21. 372 FAA Exhibit 1, Item 3, page 9. 373 FAA Exhibit 1, Item 21. 374 FAA Exhibit 1, Item 21. 375 FAA Exhibit 1, Item 21. 376 FAA Exhibit 1, Item 21. 377 FAA Exhibit 1, Item 1, Exhibit 3, page 55. 378 FAA Exhibit 1, Item 21. 379 FAA EXhibit 1, Item 15. 38

### °

FAA Exhibit 1, Item 21. 381 FAA Exhibit 1, Item 1, Exhibit 3, page 55. 382 FAA Exhibit 1, Item 21. 383 FAA Exhibit 1, Item 21. 384 FAA Exhibit 1, Item 1, Exhibit 3, page 55. Page 46 # Skydivers_ Involved 2 2 1 1 1 2 1 2 1 8 1 1 1 1 1 2 1 1 1 1 1 8
11Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) 24. January 19, 2014 No notification offirstjump. 385 25. January 20, 2014 The ATCT reported that out of 10jumpers, 4 ended up well outside the DZ, withjumpers landing on various parts ofthe runway, taxiway, and one at the Barefoot golf course. 386 26. January 24, 2014 Three skydivers landed way west ofthe Intracoastal Waterway (ICW). 387 27. January 26, 2014 A golfcart entered taxiway Cand A to retrieve skydiver that landed on taxiway A. 388 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 29. March 9, 2014 One parachute malfunctioned and landed near Highway 17 and 30th Ave. 390 30. March 15, 2014 A skydiver landed on the tarmacjust east oftaxiway C/B. m 31. March 15, 2014 A skydiver landed bythe windsock and another landed near Highway 31. 392 32. March 22, 2014 A parachute malfunctioned and skydiver landed 1 mile east. Another was injured. 393 33. April 5, 2014 A skydiver landed in the drainage ditchjust right in front of an aircraft {NSSSBV) on taxiway 8.394 34. April12, 2014 No 2 minutes notification. 395 35. April 24, 2014 A skydiver landed within 5 feet of a businessjet and fuel truck and 15ft. from the FBO building. 396 36. May 10, 2014 Three skydivers landed in between runway 23 and taxiway A, then crossed taxiway A without clearance. 397 37. May 10,2014 Two skydivers landed on the other side ofthe runway while another landed far northeastern field area. 398 38. May 14, 2014 Three skydivers landed outside the OZ, one in front ofthe ATCT, and two abeam of Runway 5 threshold. 399 39. May 16, 2014 Two skydivers landed outside the DZ north ofthe approach for runway 5. 400 40. May 16,2014 Two skydivers landed we!J outside the DZ west of runway 5/23. 401 41. May 18, 2014 A skydiver landed right in front ofthe ATCT. 402 42. May22, 2014 Three skydivers landed outside the DZ. 403 One landed on taxiway A and ran back ran the ramp. 404 43. May 23,2014 A skydiver landed on a taxiway and ran back to the DZ without contacting the ATCT. 405 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. 405 45. May 24, 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 46. May 24,2014 One skydiver landed between taxiway A and runway 23 and one landed on the west side of runway 23 abeam the ATCT. 408 47. June 7, 2014 A skydiver landed on the northwest side of runway 23. 409

385 FAA Exhibit 1, Item 21. 386 FAA Exhibit 1, Item 1, Exhibit 3, page 55. 3s7 FAA Exhibit 1, Item 21. 388 FAA Exhibit 1, Item 15. Also see FAA Exhibit 1, Item 21. 389 FAA Exhibit 1, Item 1, Exhibit 1, page 138. 390 FAA Exhibit 1, Item 21. 391 FAA Exhibit 1, Item 21. 392 FAA Exhibit 1, Item 21. 393 FAA Exhibit 1, Item 21. 3'J4 FAA Exhibit 1, Item 21. The pilot's report on this incident in contained in FAA Exhibit 1, item 5, page HCDA-000176. 39s FAA Exhibit 1, Item 21. 396 FAA Exhibit 1, Item 8, page 4-6. Also see witness report, FAA Exhibit 1, Item 5, page HCDA-000149. 397 FAA Exhibit 1, Item 15. 39a FAA Exhibit 1, Item 21. 399 FAA Exhibit 1, Item 8, page 4-6. 4oo FAA Exhibit 1, Item 8, page 4-6. 401 FAA Exhibit 1, Item 8, page 4-6. 402 FAA Exhibit 1, Item 21. 403 FAA Exhibit 1, Item 8, page 4-6. 404 FAA Exhibit 1, Item 21. 40s FAA Exhibit 1, Item 8, page 4-6. 406 FAA Exhibit 1, Item 15. 407 FAA Exhibit 1, Item 15. 40a FAA Exhibit 1, Item 21. Page 47 1 5 3 1 1 1 1 2 2 1 1 1
3
3
3 2 2 2 3 1 1
1
2 1Skydive Myrtle Beach, Inc. v. Horry County Department of Airports, South Carolina (FAA Docket No. 16-14-05)

48. June 15, 2014 49. June 20, 2014 

### so. June 22, 2014, 51. June 22, 2014 52. June 29, 2014 53. July 4, 2014 54. July 5, 2014 55. July 10, 2014 56. July 19, 2014 57. July 20,2014 58. July 24, 2014 59. July 26, 2014 60. July 27, 2014 61. August 8, 2014 62. August 16, 2014 63. August 27, 2014
64. August 31, 2014 65. September 6, 2014 66. September 13, 2014 67. September 28, 2014 68. November 9, 2014

409FAA Exhibit 1, Item 21. 41o FAA Exhibit 1, Item 21. 41 1 FAA Exhibit 1, Item 21. A skydiver landed on the west side of the runway, abeam the ATCT and another landed 2 between taxiway A and the runway south oftaxiway 0. 410 A skydiver landed between taxiway A and the runway between taxiways Cand 0. 411 1 A skydiver landed on top of a fuel tank.412 1 Two skydivers landed outside the designated landing zone, between taxiways T and Cand 1 the ramp. 413 An airport employee reported that a skydiver miss the mark north ofthe fuel farm.414 2 one skydiver landed on the other side ofthe runway; west ofthe ASOS. 415 1 A skydiver landed on the other side of the runway by the VOR. 416 1 A skydiver landed next to sewage plant and brought back by a city worker.417 1 Two skydivers landed in the grass on the west side ofthe runway north east of runway 23's 2 numbers.418 One skydiver landed between taxiway A and the runway. 419 1 A skydiver landed dose to the runway approach end causing helicopter to initiate a go- 1 around. 420 ATCT referred to this incident as a near co!lision. 421 Three skydivers landed outside the DZ in the non-movement area while another landed 4 between ataxiway and a runway. 422 A skydiver landed between taxiway A and runway, northeast of taxiway 0. 423 1 Several skydivers landed in the grass on the other side ofthe ramp and were picked up by a 2 golf cart which drove on the taxiway to reach them.424 One skydiver landed in the grass on the west side ofthe runway abeam the numbers. 425 1 Seven skydivers landed outside the DZ including one in a neighborhood east ofthe Airport, 7 and one on the public road adjacent to airport property. 426 One skydiver landed near left edge of runway 23, northeast oftaxiway Cwith JUMP1 aircraft 1 on short final.427 One cut away resulted in the skydiver landing between the VOR and the w·1ndsock.428 1 One skydiver landed between taxiway A and the runway. 429 1 A skydiver landed on taxiway A near runway 23 run-up pad.430 1 Several skydivers landed outside the DZ nearly missingthe moving blades of a military 2 helicopter preparing to take-off.431

**41**

**~** FAA Exhibit 1, Item 8, page 4-6. SDMB rejects several ofthese 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 injuryto person or SDMB propertytook place. SDMB maintains that no landing near a fuel truck occurred, let alone a moving truck. Had this actually taken place, physical injuryto 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 injurywould 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. 415 FAA Exhibit 1, Item 21. 416 FAA Exhibit 1, Item 21. 417 FAA Exhibit 1, Item 21. 418 FAA Exhibit 1, Item 21. 419 FAA Exhibit 1, Item 21.

**~°** FAA Exhibit 1, Item 8, page 4-6.

**1** FAA Exhibit 1, Item 21. = FAA Exhibit 1, Item 8, page 4-6. 423 FAA Exhibit 1, Item 21. 424 FAA Exhibit 1, Item 8, page

**4~6.** 425 FAA Exhibit 1, Item 21. 426 FAA Exhibit 1, Item 8, page

**4~6.** 427 FAA Exhibit 1, Item 21. 42B FAA Exhibit 1, Item 21. 429 FAA Exhibit 1, Item 21. 430 FAA Exhibit 1, Item 21. 431 FAA Exhibit 1, Item a, page 4-6. Page 48Skydive Myrtle Beach, Inc. v. Harry County Department ofAirports, South Carolina (FAA Docket No. 16-14-05)
69. March 15, 2015 70. March 15, 2015 71. March 28, 2015 72. March 29, 2015 73. April1, 2015, 74. April 3, 2015 75. April 5, 2015 76. April13, 2015 77. April 21, 2015 78. April 28, 2015 79, May 2, 2015 80. May 2, 2015 81. May 3, 2015 82. May 4, 2015
83. May 16,2015
84. May 16,2015 85. May 17,2015
86. May 31, 2015
87. June 7, 2015
88. June 8, 2015
89, June 16, 2015
90. June 20,2015
91. July 4, 2015

432 FAA Exhibit 1, Item 15. 433 FAA Exhibit 1, Item 21. 434 FAA Exhibit 1, Item 15. 435 FAA Exhibit 1, Item 21. 436 FAA Exhibit 1, Item 21. 437 FAA Exhibit 1, Item 21. 438 FAA Exhibit 1, Item 21.
439 FAA Exhibit 1, Item 21. 440 FAA Exhibit 1, Item 21. 441FAA Exhibit 1, Item 21. 442 FAA Exhibit 1, Item 21. 443 FAA Exhibit 1, Item 21. 444 FAA Exhibit 1, Item 21. 44s FAA Exhibit 1, Item 21. 446 FAA Exhibit 1, Item 21. 447 FAA Exhibit 1, Item 21.

**~FAA** Exhibit 1, Item 21. 449 FAA Exhibit 1, Item 21. 450 FAA Exhibit 1, Item 21. 451 FAA Exhibit 1, Item 21. 452 FAA Exhibit 1, Item 21. 453 FAA Exhibit 1, Item 21. 454 FAA Exhibit 1, Item 21. 455 FAA Exhibit 1, Item 21. A skydiver landed outside DZ, walked onto taxiway B then onto ramp without 1 communicating with air traffic contro!. 432 A skydiver landed on the golf course. ATCT received cal1. 433 1 A skydiver landed outside the DZ on taxiway A between taxiway Cand taxiway D without 1 clearance from the ATCT.434 ATCT reported a skydiving-related MOR with the FAA. 435 1 ATCT reported a skydiving-related MOR with the FAA. 436 1 ATCT reported a skydiving-related MOR with the FAA. 437 1 ATCT reported 4 skydiving-related MORs with the FAA. 438 4 A skydiver reported that he landed outside the DZ and was injured. 439 1 A skydiver landed in the AOA and crossed the runway. SDMBN's aircraft was landing at the 1 time. 440 ATCT reported a skydiving-related MOR with the FAA. 441 1 ATCT reported a skydiving-related MORs with the FAA. 442 1 ATCT reported a skydiving-related MORs with the FAA. 443 1 ATCT reported a skydiving-related MOR with the FAA."' 1 ATCT reported a skydiving-related MOR with the FAA. 445 1 One skydiver landed between the runway and taxiway A near the approach end of runway 23 and outside ofthe DZ,446 another landed within 15 feet east of runway 23, approximately 2 1,500 feet from landing threshold. This is outside DZ and inside runway safety area.447 ATCT reported a skydiving-related MOR with the FAA."' 1 One skydiver landed nextto the VOR and outside ofthe DZ. 449 1 Eleven (11) parachutistsjumped with SDMB and eight (8) ofthe parachutists landed on the beach. The other three (3) landed in the designated landing zone at CRE. Public safety was 8 informed ofthis incident. 4so ATCT reported a skydiving-related MOR with the FAA. 451 1 Two parachutistsjumping with SDMB missed the DZ. Onejumper landed between taxiways C and T adjacent to the ramp and was able to exit onto the ramp without incident. The other 2 landed west of the intercostal near the rock mound along Highway 31. 452 One skydiver landed on taxiway A between taxiway C and D and exited to the grass towards 1 the DZ.453 ATCT reported two skydiving-related MORs with the FAA. 454 They landed outside the OZ. One came to rest on west side of runwaywhile the other remained on west s"1de of airfield 2 until retrieved by SDMB.455 A skydiver landed outside the DZ on taxiway A (VPD) without ATCT authorization. 456 1

Page 49Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05)

92. July 5, 2015
93. July 5, 2015
94. July 6, 2015 95. July 19, 2015
96. July 25, 2015

97. July 25, 2015
98. July 25, 2015
99. July 25, 2015
100. August 9, 2015

101. August 9, 2015

102. August 9, 2015

103. August 9, 2015

104. August 9, 2015 105. August 9, 2015 106. August 9, 2015 107. August 22, 2015

45li FAA Exhibit 1, Item 21. 457 FAA Exhibit 1, Item 21. 458 FAA Exhibit 1, Item 21. 459 FAA Exhibit 1, Item 21. 460 FAA Exhibit 1, Item 21. 461 FAA Exhibit 1, Item 21. 462 FAA Exhibit 1, Item 21. 453 FAA Exhibit 1, Item 21. 464 FAA Exhibit 1, Item 21. 465 FAA Exhibit 1, Item 21. 466 FAA Exhibit 1, Item 21. 467 FAA Exhibit 1, Item, 228. 468 FAA Exhibit 1, Item 21. 469 FAA Exhibit 1, Item 21. 47

### °

FAA Exhibit 1, Item 21. 471 FAA Exhibit 1, Item 21. 4n FAA Exhibit 1, Item 21. A skydiver landed beside the intersection oftaxiway Cand A. The skydiver remained until 1 permission was granted to retrieve him. 457 A skydiver landed beside the intersection oftaxiway Cand A. The skydiver remained until 3 permission was granted to retrieve him. 458 A skydiver landed on the grass between Taxiway A and the runway. After receiving permission from the ATCT to move out ofthe active area, the skydiver gathered his chute 1 and walked to the ramp. 459 ATCT reported a skydiving-related MOR to the FAA. 460 1 Three skydiversjumping with SDMB landed outside the DZ. 21anded southwest ofthe Tower, just east of taxiway A, while the other landed in the area between taxiways A, B, and 3 C,461 Three skydiversjumping with SDMB landed outside the DZ. 2 landed abeam Runway 23 3 approach lights, east ofthe runway. 11anded between taxiways T and C.462 Two skydiversjumping with SDMB landed outside the DZ. One touched down on active 2 taxiway A, while the other landed near runway 23 approach lighting system.463 A skydiversjumping with SDMB landed outside the DZ, landing north east ofthe landing 1 zone, abeam Runway 23 approach lights.464 A parachutistjumping with SDMB landed outside the DZ, east of the runway, southwest ofthe 1 ATCT.46s A solo parachutistjumping with SDMB, landed outside the DZ, between taxiway C, T, and the ramp. Jumper landed northeast oftaxiwayA, 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 ofthe 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 1 let a parachutist get his chute offofthe taxiway, and another when ajumper had to cut away his main, and was away from the otherjumpers descending. Tower didn't see this jumper

... [and] let an aircraft takeoff, and although not close, was a concern because they didn't know thejumper was there."467 A tandem parachutistjumping with SDMB, landed outside the DZ. The skydivers landed 2 northeast of runway 23, between taxiway A and taxiway C.468 A solo parachutistjumping with SDMB, landed outside the DZ. Thejumpertouched down on west side of the runway, southwest end of airfield. Itwas reported that the jumper had to cut away from main chute and deploy

**back~up.** CRE ATC stated that it appeared the 2 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 A solo parachutistjumping with SDMB, landed outside the DZ, between taxiway C, T, and the 1 ramp. Jumper proceeded to ramp. No clearance required from ATC.470 A skydiver landed in the grass between runway 23, taxiway A, taxiway C, and taxiway B.471 1 A skydiver landed in the grass on the northwest side of runway 23. Another landed in the 1 grass between taxiway Ctaxiway T, and the rampY2 A solo parachutist,jumping with SDMB, landed outside the designated landing zone. Jumper 1

Page 50Five skydivers with SDMB landed outside ofthe OZ. The jumperstouched down on the grass 108. August 28, 2015 area, abeam the approach end of RWY 5. The jumpers did not cross any active taxiways or 5 Five skydivers from SDMB missed the DZ and landed in the RSA for runway 5. One skydiver's 109. September 5, 2015 descent path took him into the approach of runway 5, causing an aircraft (N208TS) to 5
110. SeptemberS, 201S 111. September 19, 201S

112. September 27, 2015 a 360 maneuver on final. 474 outside the designated landing zone. The skydiver touched the ATC Tower. 475 A skydiver touched down outside the landing zone, landing between the ATCT and taxiway A.475 ATCT observed a parachutist land on taxiway alpha approximately 300 feet northeast of taxiwayT. Prior to the parachutist landing, jump 1 had landed runway 05 and was exiting the feet from the 1
1

1

The data in Table I 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 ofincidents, the data appears to indicate an increase in the rate as well. The related trends lines (graph), number ofreports and number ofskydivers involved, are also a concern, and are indicative ofsystemic safetyproblems concerning skydiving operations at CRE. The data illustrates that, overtime, the skydiving safety deficiencies at CRE not onlyhave not been resolved, buthave worsened. 

### Skydiving Safety Incidents at CRE (March 2013- September 2015) 2S 2.3 22 20 19 16 1S 12 .1.


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478 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 ATCf skydiving log. The list and graphical depictions contain only those incidents that the FAA was able to document as part ofthe record. Page 51Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) 

### Routine landings outside the DZ are a safety issue requiring mitigation and the type ofsafety 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 ofmany ofthe reported safety incidents at CRE479

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### These skydiving incidents at CRE canbe categorized as accident precursors, which, unless addressed, can leadto an accident.480 

### Precursor identification, which these data supports, is critical in preventing accidents before theyhappen,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 ofskydiving operations. From a risk managementperspective, and under its federal obligations as the airport sponsor, these safety deficiencies must be mitigated bythe County.

479 The chart illustrates some ofthe safety incidents which could be reasonably located on the airport. Not aU incidents in the record were detailed enough as to be placed in a precise or even general location at the airport. 480 FAA Exhibit 1, Item 14. Afailure may, in combination with less favorable circumstances or !eft unattended for longer time periods, lead to a severe consequence. Ifthere 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 accidentprecursor. 481 See Causal Factors for GeneralAviation Accidents/Incidents Between January 1984 and October2004, page vii. 482 See FAA National RunwaySafety Plan (2015 -2017), page 58. Page 52Two photographs ofthe 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 ofthe hazards associated with skydiving operations discussed in this case such as skydivers missingthe DZ, crossing active runways, landing close to moving aircraft, failure to adhere to established procedures, inadequate integration ofskydiving with normal airport operations, the need for an adequate DZ, and potential injury, numerous case studies were reviewed. From a safetymanagement perspective, case studies illustrate the consequences ofnot mitigating the hazards since they are real and contextuallyrelevant situations to whathas and could occur at CRE. The following excerpts from NTSB, FAA, and NASAASRS483 reports are samples which illustrate several ofthe safety issues inthis case. 

### Case l On October 21, 2000, a Champion 7ECA, pilotedby 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 andnotedthat "inmyjudgment it was clear to land on the sod runway as the skydiver was ontarget over his designated landing spot, well to the left ofrunway 12. I touched the aircraft down and at that time the skydiver must have turned downwind as he ended up landing in the middle ofthe runway. I applied myright rudder to avoid a collision with the skydiver. This action resulted in my crossing the pavedrunway 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 ofrunway 3/21. This is not the first time this has happened. During these days ofheavy parachute traffic, sometimes as many as 25-30 are released at a time and they land all over the airport, crossing back and forth overthe active runway on their descents. No particular drop zone seems to be observed, as theyjustuse the whole airport surface creating a hazard to normal airport traffic

.. .it isjusta matter oftime before someone is killed and would like the FAA to monitor the sit atthis airport to help improve safety."4Bs

4113 Aviation Safety Reporting System. 484 FAA Exhibit 1, Item 28, NTSB CHI01LA020. 485 FAA Exhibit 1, Item 28, NASAASRS Report No. 616472. Page 53Skydive Myrtle Beach, Inc. v. Horry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) 

### Case 3 OnApril23, 2005, a De HavillandDHC-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 cinematographerparachutist 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 ofthe airplane collidedwith him. A representative ofthe aircraft operator was asked byNTSB about the protocol to enterthe traffic pattern. [This representative] stated that verbal guidance is given to them (pilots) to follow the FAArules and itup to their discretion. There are no written protocols. The onlything is the noise abatement procedures. The acting airport manager stated that there is no Letter ofAgreement for airport operations between Skydive Deland andthe City ofDeland, only the lease for the property agreement.486 

### Case4 On May26, 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 thathe was on fmal approach for landing, when a parachutist "made a rapid descent and accelerated from behind [his] right wing." The parachutisthitthe right wing and the airplane entered an unrecoverable descendingright turn, subsequently striking a tree line. The parachutist involved in the accidentnoted that he intendedto land in front ofthe hangar. He reported he did not hear or see thejump plane. The drop zone for experienced parachutists was located north ofthe turfrunway and west ofthe hangar buildings. The NTSB determines the probable cause(s) ofthis accident to include (1) failure ofthe pilotto maintain clearance from the parachutist descent area/drop zone, (2) parachutist's failure to maintain an adequate visual lookout for thejumpplane during all phases ofthejump, and as an additional factor, "theproximity ofthe runwayto the drop zone."487 

### Case 5 Thisjump occurred early afternoon onJanuary 29, 2006. The winds were from the west, stronger at altitude, but about 7 to 20 mph onthe ground. Because ofstronger uppers, thejumperfound it not possible to land in the regular landing area. He chose to landjust on the other side ofthe runway in a field east ofthe drop zone. However, he was determininghis landing direction according to the windsockthat was about 250 yards away, andfaced west for landing, although his canopy was beingpushed from his left, a stronger south wind in the field he chose. He was crabbing on final approach, and did not flare pasthis 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 correctlyto land in a safe, alternate landing area, he failed to use his ownperception ofhis direction under canopy, instead ofa wind sock that indicated something different than what he was experiencing488 

### Case 6 OnNovember 11, 2012, a licensed skydiver exited thejump plane. The freefall and parachute deployment were uneventful and thejumperwas in control ofhis parachute. He was seen making a 360 degree turn, losing more altitude and landing in a field short ofthe drop zone. He landed on the ground but his parachute was caught in the tree line indicatingthathe overshot his alternate landing area. The parachute equipment was undamaged and in working order. He was takenby ambulance to cooper hospital where it was determinedthathe broke his hip.489

486 FAA Exhibit 1, Item 28, NTSB MJAOSLA096. 487 FAA Exhibit 1, Item 28, NTSB CH!05LA130. 488 FAA Exhibit 1, Item 28, FAA ASIAS Report 2006-01290014491. 439 FAA Exhibit 1, Item 28, FAA ASIAS Report 2012-11110235191. Page 54Skydive Myrtle Beach. Inc. v. Horry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) 

### Case 7 On December 15, 2012, four skydivers exited ajump aircraft and performed a routine free-fall and all four parachutes opened normally and had good flying canopies. Three ofthejumpers 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 ofa mile, missingthe drop zone. He struck a tree and fell approximately 20 to 25 feet. It

### is believedthatthe victim landed onhis back onthe reserve parachute pack causing serious injuries to his spine. It was determinedthatthe victim, due to lack ofexperience or work overload, thathe 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.490 

### Case8 OnMarch 8, 2014, a Cessna 170B collidedwith a parachutist and parachutejustbefore touchdown. The pilot ofthe airplane that struckthe parachutistreported the following that "he was on final approach for runway 32 and was about 15 feet above the ground" when "a parachutist dropped down infront ofme and was a going to land in the center ofthe approach end ofthe runway." He immediately climbed to avoid the parachutist and the parachute rigging caughthis wing. He crashednose first into the ground. Two witnesses reported thatthe parachutist's glide path crossed the approach end ofrunway 32. One ofthese witnesses reported thatthe right wing caughtthe parachute's suspension lines, causing the airplane to crash and the parachutistto be thrownto the ground.491 

### g. Director's Analysis of the Safety Issues A review ofthe pleadings shows SDMB dismisses not only the safety concerns expressed bythe County, the ATCT, andFAA, but also the safety implications oflanding outside the drop zone. The Director will address the safetyissues presented by the parties as follows:
• Safety Issue 1 

### -TheLOAs andRelatedSafety Protocols; • Safety Issue 2

- 

### ATCTRole andActions; • Safety Issue 3 

### -14 CFR Part 139 v. Part I05

### Interpretation andAC I05-2E; 

### 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 

### defmes responsibility for the control ofaircraft, vehicular, and pedestriantraffic within the airport movement areas ofCRE in orderto "limit

... the movement area involving aircraft, vehicle, pedestrian, or object

...thatwould 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 inthe defmed movement area and (2) notifying airport operations ofmovement area incursions committedby vehicle operators or pedestrians. The County's roles include (1) informing all authorized users onthe use ofthe movement area, includingthe requirement to receive ATCT authorization, (2) informing users ofthe requirement that vehicles or equipment on the movement area must maintain radio communications, and (3) addressing lost communication procedures493

490 FAA Exhibit 1, Item 28, FAA ASIA$ Report

**2012~12150283791.** 491 FAA Exhibit 1, Item 28, NTSB ERA14lA146. 492 FAA Order JO 7210.3Y Facility Operation andAdministration, paragraph

**4-3~1,** and 18-4-1. For additional cases and investigations, see the NTSB database, FAA Aviation Safety Information Analysis and Sharing {ASIA$) system, and USPA accident data base at http://www.uspa.org/USPAMembers/SafetyIAccidentReports.aspx. 493 FAA Exhibit 1, Item 15, page 86. Page 55Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05)


### The secondLOA, dated May 11, 2012, is an agreement between the County, the ATCT, and SDMB for conductingparachute operations at CRE. 

### It defmes the location (DZ), and the authorization for parachutists "to land inthe defmed [DZ]." 

### It does not authorize landings on any runway, taxiway, or ramp area ofthe airport.494 

### LOAs ofthis type can and should include movements required bythe 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 ofLOAs and related processes are not onlyreasonable 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 J07210.3Y,496 

### SMS guidance), but essential to achieve an acceptable level ofsafety in skydiving operations. BothLOAs are legitimate and reasonable actions bythe 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 airtraffic conflicts and those which can be created by uncontrolled access or/and movements inthe airport's movements areas, an LOA and related processes are common safetypractices used by airport sponsors and advocated by the FAA at many other airports in the country.497 

### SDMB challenges the LOAs and the use ofground 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."499 

### SDMB also objected to specific provisions inthe revised draft LOA (June 2014), including the provisions regarding the documentation ofsafetyhazards including landings outside oftheDZ, other deviations bythe skydiving operator, notification bythe ATCT to the County,500 

### 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 Countyposition is that "the reporting protocol [the County] and the [ATCT] have implementedto document safetyhazards, including vehicle andpedestrian incursions on active runways and taxiways, and its further objectionto purported restrictions on its landing zone," are warranted. 502 

### The Countyrepeatedly 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 bythe record, the type, frequency, and high number ofsafetyincidents involving SDMB's operations, mainly attributable to landing outside the DZ, demonstrate that SDMB is unable to meet several ofthe safety requisites in both LOAs. The LOAs are common and necessary safetypractices for safe skydiving operations, as required by, but not limitedto 14 CFR 

### § 105.23. Both LOAs andthe proposed changes to which SDMB objects are in accordance with FAA guidance, which recommends that airports develop an LOA withthe skydiving operatorthat describes specific operating requirements andboundaries ofthe DZ.504 

### Even ifsome ofthe LOA's protocols were considered 'restrictions' affecting SDMB, the record offers no evidence for determining these protocols to be anything otherthan the County acting upon valid safety

494 FAA Exhibit 1, Item 3, page 8. Also see FAA Exhibit 1, Item 17A. 495 FAA Exhibit 1, !tem 3, pages 23-24. 496 See OrderJ07110.65VAirTraffic Control, Section 7 Parachute Operations and FAA Order J07210.3Y, Section 4 Parachute Jump Operations. 497See DOT

**/FAA/AR~ll/30** DevelopmentofCriteriafor Parachute LandingAreas onAirports at 26, § 8.2.2. 498 FAA Exhibit 1, !tern 3, page 23. 499 FAA Exhibit 1, !tem 3, page 3-4. 500 FAA Exhibit 1, Item 1, Exhibit 1, pages

**149~151.** 501 FAA Exhibit 1, Item 15. soz FAA Exhibit 1, Jtem 3, page 20. 503 FAA Exhibit 1, Item 3, page 7. 504 See FAA OrderJO 7210.3Y Facility Operation andAdministration,

**18~4~1.** Page 56Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05)



### concerns. The protocols are reasonable, and notunjustly discriminatory. As stated in FAA Order 5190.6B, "a prohibition or limit on aeronautical operationsjustifiedbythe sponsor onthe basis ofsafety

... will be evaluated based onthe statedpurpose,justification, and support offered by the sponsor." 505 

### Both the Complaint and the record make clearthat the County, the ATCT, FAAAirports, and FAAFSDO have repeatedly presented their safety concerns to SDMB. The record also shows that, although SDMB participated inthe 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 unjustlytargeted bythe LOA process, its contents, orits application. Therefore, the Directorfinds that the LOAs in place, includingrelated processes and documentation protocols, are well within the bounds ofan airport's permissible regulation ofskydivers 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 atthe Airport (e.g., ground communications and documentation protocols for vehicle and pedestrian incursions on active taxiways andrunways at CRE). However, in its Complaint, SDMB goes a step further and argues that the Countyhas a "partnership" with the contract ATCT thatresults in "policing unusual airport activity and refereeing the boundaries ofSDMBs primary [DZ]." SDMB alleges thatthe County and the contract tower "are working together to report and enforce subjective unusual incidents."506 

### 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" ofsome 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 ofthe operations performed bythe contract ATCT at CRE. The ATCT at CRE follows and adheres to FAArequirements and guidance507 

### Moreover, a review ofthe record shows no evidence to suggest thatthe contractATCT has misrepresented skydiving safety issues at CRE. To the contrary, the level ofdetail and recordkeeping maintained bythe ATCT508 

### concerning the safety incidents at CRE are indicative ofa proactive approach to safetymanagement. The record also indicates that SDMB knew the stated purpose ofthe 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 ofthe ATCT's obligation, pursuant to the LOA, to "NotifY the airport operations

...ofobserved Movement Area incursions committed by vehicle operators orpedestrians.'609

505 See FAA Order 5190.68 § 14.4{d) at 14-3. 506 FAA Exhibit 1, Item 1, pages 2-3. 507 FAA Order JO 7210.3Y Facility Operation andAdministration, 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 staffthem and all contract controllers are certified bythe 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 controlfers. Therefore, for the purpose ofthis Complaint, including all issues, discussion, or a!legations concerning CRE's ATCT, the Director considers its performance, credibility, and integrity to be equal to any FAA facility ofthe same type, along with all ofthe related expectations and responsibilities. 506 See FAA Exhibit 1, Item 21. 509 FAA Exhibit 1, Item 3, page 12. Page 57Skydive Myrtle Beach."Inc. v. Horry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) 

### Therefore, objection to the ATCT documenting and notifying the County ofany incidents is unreasonable and inconsistent with common safety practices. On this, the Director adds that SDMB's claims that it was not aware ofthe LOAs, orthat it was notprovided with copies or otherwise that the Countykept 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 penetratingmovements areas, the runway or taxiways. 510 In 

### any event, the 'partnership' betweenthe County and the ATCT as described in the Complaint is the type ofcollaborative approach to safety managementthat assists an airport sponsorto achieve safe operations. The County sought and seeks to gather safety data regarding incidents and accidents in a manner consistent with the guidance inFAA AC No. 150/5200-37 Introduction to SafetyManagement Systems (SMS)for Airport Operators. 51I 

### The actions ofthe ATCT, including the actions SDMB objects to (e.g., reporting, documenting), are consistent with the applicable FAA guidance, including FAA Order J07110.65VAir Traffic Control, Section 7 Parachute Operations and FAA OrderJ07210.3Y, Section 4 Parachute Jump Operations, FAA Order 7050.1B Runway SafetyProgram, andFAA Order I000.37ATOSafety Management System. FAA Order 5!90.6B states"

.. .ifa sponsor believes that there is a safety issue with the flight operations ofan 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 ofthe operations performed bythe contractATCT at CRE. Moreover, a review ofthe 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 andthe ATCT "are confused about the proper application" ofParts I05 and 139

..."and the difference between 'pedestrians' and 'parachutists' inParts 139 and 105 respectively." SDMB states that the County and the ATCT "are either unable orunwilling 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 orhard-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 notprohibited areas but should notbe 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] thatrequires all pedestrians and vehicles to have two-wayradios and receive [ATCT] authorizationpriorto entering active areas defined as taxiways andrunways at GSA

...it appears that [the ATCT] and [the County] 'feel' that Part 139 supersedes Part I05 and FAA's interpretation ofthe regulatory interrelation ofsportparachuting operations and airport

510 See Background section for narratives ofthis and the related references in the record. 511 For example, see FAA Exhibit 1, Item 5, page 23. The essence ofthis 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 ofwhich have resulted in runway and taxiway incursions, are clearly safety hazards to other aeronautical operations at CRE. 512 FAA Order 5190.6B, pages**14~2.** 513 FAA Exhibit 1, Item 1, page 9. 514 AC 105-2E,**~** 6(c)(2). Page 58Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) 

### safety found in FAAAC 105-2E." SDMB adds that "this apparentregulatory misinterpretation is the genesis ofthe current issues" in the Complaint. 515 

### SDMB also contends that the County "negligentlyfailed to meet its obligations under 14 CFR § 139.329 (to inform tenants ofunpublished agreements) and then cites 14 CFR § 139.329 asjustification for its safety concerns and new unpublishedpolicies. These practices are per se discriminatory." 516 

### However, SDMB also argues that "the safetyprovisions of 14 CFR § 

### 139.329 do not apply to itbecause sportparachuting safety is governedby 14 CFRPart 105."517 

### The Countyrejects these claims and specifically the claim that SDMB's "skydivers should not be considered pedestrians

..., and should not therefore be subjectto 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 insteadremain 'parachutists' under 14 CFRPart 105

..." The County contends that "under this self-serving and dangerous interpretation ofthese two regulations, SDMB's skydivers would be allowed to walk across the taxiways andrunways with impunity, whenever they chose, even ifan aircraft were aboutto take offor 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 onthe ground after landing, to be analogous to an "aircraft."520 

### An "aeronautical activity" is an "activity which involves, makes possible, or is required for the operation ofan aircraft, or which contributes to or is required for the safety ofsuch 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 caunotbe construed as granting a skydiverthe classification ofan aircraft and certainly not as permitting walking skydivers 'freeroaming rights' onthe airport's runway, taxiways, ormovement 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 safetyprotocol to "vacate" the area "as soon as practicable" allows itto ignore its obligationto contact the ATCT for permission before crossing active taxiways and runways, is not acceptable.522 

### Iffor safetyreasons, an aircrafthas to adhere to ATCT instructions and procedures, so must a skydiver. Ifa pilotviolates 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 bythe ATCT" are hazards the FAA expects the County to mitigate accordingly. This is true regardless ofwhether the term 'pedestrian,' 'parachutist,' or any other name or classification is used. Aviation safety is an area whollyregulated bythe Federal Government and the FAAis the agency with the authority to implement 49 U.S.C. §

### 40101 through its regulations and guidance, and its interpretation ofthese statutes receives deference. 523

515 FAA Exhibit 1, Item 1, page 2. 516 FAA Exhibit 1, Item 6, pages 8 and 13. s17 FAA Exhibit 1, Item 3, pages 20-21. 518 The County states that CRE is not a Part 139 certificated airport, however, !ike many general aviation airports, it looks to Part 139for guidance in complying with its federal grant obligations. FAA Exhibit 1, Item 3, page 3. 519 FAA Exhibit 1, Item 3, page 3. szo See Skydive Paris Inc. v. Henrv County. Tennessee Director's Determination, 18, FAA Docket No.

**16~05~06** (Jan. 20, 2006). ln 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 can 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 wlll remain in a fixed position," was based on the specifics ofthat 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 ofsafety 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 Directorfrom finding any relevant similarity. 521 See FAA Order 5190.68, pages 2-14, and 8-8. 522 FAA Exhibit 1, Item 3, pages 20-21. 523 See FAA v. Citv of Santa Monica, Director's Determination, 30, FAA Docket 16-02-08 (May 27, 2008). A!so see Chevron USA, !nc. v. National Resources Defense Council, 467 U.S 837 {1984). Page 59Skydive Myrtle Beach, Inc. v. Harry County Deportment of Airports, South Carolina (FAA Docket No. 16-14-05)


### 14 CFRPart 105 provides that "no person may conduct a parachute operation

...ifthat operation creates a hazard to air traffic orto persons or property onthe surface." 524 

### A skydiver descending upon an unsuspecting taxiing aircraft, a skydiver crossing an active runway, or one landingnear the rotating blades of a helicopter, is a hazard. Not controlling these introduces unnecessaryrisks. The Director notes that while CRE is not a 14 CFRPart 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 ofwhetherthe airport has a 14 CFRPart 139 certificate ornot. Many general aviation airports voluntarily incorporate appropriate elements of 14 CFRPart 139 and their supportingAdvisory Circulars to enhance the safetyoftheir facilities.525 

### Contrary to SDMB's assertion that skydiving landings outside ofthe designated drop zone and inside the airport should be permitted because skydiving operations arejust like any other aircraft, is nonsensical. In many cases, skydivers have drifted across the runway and taxiways with aircraft inthe proximity, landed or intruded upon active movement areas, and this plainly constitutes a hazard to airtraffic.526 

### Landing "anywhere at the airport," as SDMB implies, is dangerous, and is not acceptable. SDMB's argumenthere appears to be that, because Part 105 states that in an emergency a parachutist may land anywhere at the airport, the "landingzone" nowbecomes the entire airport. FAArejects this. The guidance in AC 105-2E

### SportParachutingis very clear. While skydivers, attimes, may 

### inadvertently [emphasis added] land outside the DZ [and this could include landings on runways, taxiways, clearways, or Obstacle Free Zones (OFZ)],527 

### this cannotbe 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 veryhigh number of"inadvertent" landings outside the landing zone by SDMB skydivers at CREhas created a serious and permanent safety concern that the County must manage and mitigate. SDMB's claimthat it is "permitted to land anywhere within 5 (five) miles ofthe airport, ifnecessary," 528 

### onlyrefers to the airspace to be used, not a particular DZ. The hazards associated with a skydiver "moving" anywhere at the airport cannotbe ignored. To do otherwise would create unnecessarily dangerous conditions in the movement areas ofthe airport, notjustfor the skydivers, but other aircraft, people, and possibly property as well.529 

### 14 CFRPart 105 does not supersede common safetypractices, FAA's safety guidance for runways, taxiways, and movement areas, VPDs, orrelated safety elements inPart 139. Such an approach, as SDMB suggests, is unacceptable from a safety standpoint, andhas the effectofrendering FAA's guidance null and void.53

# ° For example, and usingPart 139 as guidance, an airport operatormust "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 identifyingthe consequences ofnoncompliance with the procedures by an employee tenant, or contractor." 531 

### Certainly, adopting such practices at a GA airport cannot and would not be considered an unreasonable practice. Ifa skydiver were to land in front ofa 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. S2S GeneralAviation Safety andSecurity Practices: ASynthesis of AirportPractice, Airport Cooperative Research Program, 2007, page 6. 526 See FAA v. Peters. 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 150-5300.13AirportDesign. saFAA Exhibit 1, Item 1, Exhibit 1, page 148. S29 FAA Exhibit 1, Item 3, page 3. 530 FAA Exhibit 1, Item 3, pages 22. 531 14 CFR § 139.329(b). FAA Exhibit 1, Item 3, page 20. Page 60Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) 

### the same occurs at a GA airport. Both are dangerous, and both may require a common mitigating strategy, whichmay befound in 14 CFRPart 139. Even ifno 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 ofthe airport's movement areas constitutes unsafe practices that still require mitigation. Therefore, the use ofan acceptable process, such as relying on 14 CFRPart 139 to address a particular hazard, is not unreasonable.532 

### The Director cannot accept that airport safety areas be defacto considered "acceptable" as DZs, as SDMB implies. It is a basic concept in airport operations to maintain certain safety areas clear during aircraft takeoffand landing operations. The FAA's Runway Safety Office and otherFAAorganizations concur with restrictingthe use ofairport safety areas as DZs. Although aDZ may, in some cases and under certain conditions mitigations) overlap a safety area, as a matter ofsafety, this is not a blank authorization that a DZ can overlap runway and taxiway safety areas. 

### Itis a basic airport designpremise to maintainthese areas (e.g., TSA,533 

### OFZ) clear during aircraft takeoffand landing operations.534 

### SDMB has agreedto adhere to CRE's establishedprocedures and DZ

... SDMB acknowledges that it "agreed to complywith these provisions

... and implemented internal procedures to meetthe terms ofthe

...LOA." In fact, as part ofdiscussions 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 longerpresent itselfas an issue henceforth." 535 

### It is reasonable for an airport sponsor with an ATCTto "ensure that eachpedestrian and ground vehicle inmovement areas or safety areas is controlled by

...radio

...between each pedestrian orvehicle and the tower." Similarly, itis reasonable for the airport sponsorto maintain a "description and date ofany accidents or incidents inthe movement areas and safety areas involving

...aircraft, a ground vehicle, or a pedestrian."536 

### The fact that both ofthese are in 14 CFRPart 139 does take away from the fact that the safetybenefits ofsuch practices are real, consistentwith safetymanagementprinciples, and shouldbe encouraged. Finally, as a matter ofstatutory interpretation the safety provisions of 14 CFRPart 105 and 14 CFRPart 139 (and related policies and guidance) mustberead together to give both meaning and be effective safety mitigation tools. The relevant sections in 14 CFRPart 105 and 14 CFRPart 139 are not mutually exclusive. They complement each other, as discussed above. Both "point generally in a common direction," as the County argues. 537 

### The issue here is not, nor could it be, a violation of 14 CFRPart 139, butrather the use of reasonable 14 CFRPart 139 safety guidance to assistthe airport and ATCT in mitigating a demonstrated safety issue. The Director rejects SDMB's arguments (its own interpretation ofthe regulations) on this matter and fmds that the use and interpretation ofboth 14 CFRPart 105 and 14 CFRPart 139 and related guidance, bythe County are consistent with ensuring safe skydiving operations atthe airport. They are appropriate, reasonable, and inthis case, necessary. Their use is consistentwith the County's Federal obligations. 

### Safety Issue 4- FAA Safety Concerns (FAA Airports- FSDO- ATO) In all cases involving restrictions on airport use imposed by airport owners for safety reasons, the FAA makes the fmal determination on the reasonableness ofsuch restrictions when those restrictions appearto

532 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 avai!able 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.

**3** Taxiway Safety Area. 534 For example, see AC 150/5300.13AirportDesign, page 8, definitions of OFA and OFZ. 535 FAA Exhibit 1, Item 3, page 21. 536 FAA Exhibit 1, Item 3, page 21. 537 FAA Exhibit 1, Item 3, pages 22. Page 61Skydive Myrtle Beach, Inc. v. Horry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) 

### deny or limit access to, oruse of, the airport. 538 

### As part ofa 14 CFRPart 16 investigation, the Director, working in conjunctionwithFlight Standards and/or the Air Traffic Organization, will carefully analyze supporting data and documentation and make the fmal call on whether a particular activity can be conducted safely and efficiently at an airport.539 

### Inthis case, and in addition to FAAAirports, FAAATO and Flight Standards have been closely involved on the matter ofthe safety ofskydiving operations at CRE.540 

### 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 ofmore than two years, consistentlyvoiced safety concerns aboutthe situation at CRE. The ATCT has not onlyreported this to FAA, but also made itknown to SDMB many times. As part ofits numerous communications with SDMB, the ATCT has reiterated the safety concerns over SDMB's recurrent incidents, includingroutinely landing outside the DZ, crossing active taxiways, and causing VPDs and MORs to be filed. In fact, as part ofthis case, onJune 11, 2014, the ATCT manager at MYR stated that "the safety ofparachute operations is a major concern in theNational Airspace System. More specifically, it is currentlyone ofthe top 3 safety concerns." 542 

### OnApril 7, 2015, FAA's SouthernRegion Airports Division notifiedthe County that ithad been "raising concerns over skydivingoperations at CRE."543 

### The FAA letter also noted that "the purpose ofthis inquiry is to identifY what actions [the County] is takingto address what [the FAA] now consider[s] a significant safetytrend and accidentprecursors thatmust be mitigated" and "to determine ifCRE is safely operating in accordance withthe County's federal airport obligations."544 

### On May 6, 2015, the FAA's West ColumbiaFSDO sent a letterto SDMB raising safety concerns about "number ofnotifications to which this office has been made party. These growing numbers ofnotifications primarily entail parachute operations in which parachutists egressing aircraft operated by SDMB are reportedly landing in areas otherthan the landing zone as outlined in your [LOA] with [the ATCT and the County]," The FSDO addedthat "prudence would almost certainly dictate thatthis.,.agreement to which you are signatory was designed and installed into the LOA in order to ensure notjustthe safety ofany jumpers

... but also to protect the safety ofpersons and property on the ground." The FSDO also offered the resources ofthe FAA Safetyteam (FAASTeam). 545 

### The letter also characterizedthe skydiving incidents at CRE as constituting "intheirnumber and onthe basis oftheirrepetitive nature, an egregious and callous disregard for the safety ofnot only thejumpers, but the safety and security ofpersons and property on the ground." The FSDO added that the "evident disregard for the well-being ofpersons and property represents an intolerable hazard and these events must be diminished or eradicated without delayinthe interest ofoperational and public safety," 546 

### The FSDO offered assistance to SDMB inmitigating 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 ofcorrecting this clear safety deficit..." byMay 15, 2015. 547 

### SDMB did notrespond to the FSDO's offer. The FSDO characterized its interactions with SDMB as "unproductive in that SDMB brushed aside, rather forcefully,

s3S FAA Order 5190.68, § 14.3 at 14-3. . 539 FAA Order 5190.68, pages 14-2, 14-4, and 14-5. 541) 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. 541 FAA Exhibit 1, Jtem 1, Exhibit 1, page 242. 542 FAA Exhibit 1, Item 1, Exhibit 1, page 311. 543 FAA Exhibit 1, Item 14. 544 FAA Exhibit 1, Item 14. 545 FAA Exhibit 1, Item 22A. 546 FAA Exhibit 1, Item 228. 547 FAA Exhibit 1, Item 22A. Page 62Skydive Myrtle Beach, Inc. v. Horry County Department of Airports, South Carolina [FAA Docket No. 16-14-05) 

### any and all safety concerns raised bythe FSDO." Finally, the FSDO stated that SDMB also refused to cooperate with the FSDO personnel inthe performance oftheir safety inspection duties.548 

### In addition, the August 4, 2015 ESC/QCG Memorandum (Audit of Parachute Operations in the Myrtle Beach, South Carolina) discussed the safety ofskydiving 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 violatingthe landing zone parameters" and thatthis "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 ofoperational and public safety

..." The Memorandum also "recommend[ed] that the LOAbe terminated immediately until all parties can meetto mitigate the unsafe operation." 549 

### On September 1, 2015, the FAA's Director ofAirport Safety and Standards (AAS-1) in FAAHQ 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 skydivingpractices at CRE and the risks imposed upon other airport users, within the context ofoverall airfield safety." The letter addedthat "these safety incidents maybe indicative ofserious systemic safety issues involving skydiving operations (e.g., landings outside ofthe Drop Zone) at CRE" and that the County should "use its authority to ensure safe on-airport skydiving landings, to include the DZ." 550 

### On September 17, 2015, the County responded to FAA's letter and concurred thatthere are "serious safety concerns" at CRE with regards to skydiving operations. The County and adds that ithas "been working diligently and continuously with various FAA departments to ensure all avenues available to the airportto mitigate any safetyrisks 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 orderto immediatelyremedy what FSDO described as "an egregious and callous disregard" forthe safety ofCRE users and operators."551 

### 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 byaddingthat "while it is fortunate that no injuries orproperty damage were reported as the result ofeither incident, [the County] fears that it will only be a matter oftime before we are writing to inform you ofa 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." 552 

### After reviewing the record in this case, including safety data and related FAA correspondence concerning the safety ofskydiving operations at CRE, the Director finds that at all levels-FAAAirports, FAAAir Traffic (includes ATCT), and FAA Flights Standards -theunsafe skydiving operations by SDMB at CREhave been substantiated. This record contains extensive safety data, which clearly showthat unsafe conditions at CRE, have, and continue to exist, despite SDMB assertions to the contrary. 

### h. Summary on Unreasonableness or Unjust Discrimination (Safety) Contraryto SDMB's claims, the Countyhas not circumvented the FAA "by enacting rules regulating skydiving that are clearly within the exclusivejurisdiction ofthe FAA," nor are the County's actions "disguised

...safetyrules in an attemptto circumvent the FAA." 553 

### The Director finds that the County's actions were implementedto mitigate valid and substantiated safety deficiencies directly related to SDMB

548 FAA Exhibit 1, Item 228. 54S FAA Exhibit 1, Item 30. 550 FAA Exhibit 1, Item 29. 551 FAA Exhibit 1, Item 30. 552 FAA Exhibit 1, Item 31. 553 FAA Exhibit 1, Item 9, page 9-10. Page 63Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) 

### skydiving operations at CRE. As such, the County has not imposed unreasonable restrictions on or unjustly discriminated against SDMB, in violation ofGrant Assurance 22, EconomicNondiscrimination, but has acted in a manner consistent withthe safety elements in GrantAssurance 22 

### (h) and (i). 

### C. Issue 2
- Whether the action taken by 

### Countywith respectto Complainant's skydiving operations 

### at CRE are in violation of Grant Assurance 19, Operation andMaintenance Grant Assurance 19, Operation andMaintenance, ofthe prescribed sponsor assurances, implements the requirements ofTitle 49 United States Code (U.S.C.) § 

### 47107(a)(7) and (a)(8). Assurance 19 provides, in pertinentpart, that the sponsor ofa 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 GrantAssurance 19 and requires the sponsor to protectthe public usingthe airport by adopting and enforcing rules, regulations, and ordinances as necessary to ensure safe and efficientflight operations. FAA Order 5190.6B also provides that when it becomes unsafe for aeronautical purposes, the airport sponsormayhave to discontinue an aviation use. It adds thatthere should berules coveringvehicular traffic

..., security, crowd control, access to certain areas, and fire protection

...." and that "sometimes, measures are neededto reduce the likelihood ofa 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 underthe pretext ofsafety.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 necessaryto serve the aeronautical users ofthe airport

...in a safe and serviceable condition," which extends to active runways andtaxiways.556 In 

### complementingthis, the County adds that ithas "followed approved FAAprotocols for safetyrisk management, and is properlytracking safetyincidents in orderto develop means to mitigate the hazards they present."557 

### A distinction is to bemade between the safety elements in GrantAssurance 22 [(Grant Assurance (i) and (h)] and safetyunder Grant Assurance 19. As discussed above, compliance with the safety elements in Grant Assurance 22 relate to ascertaining whetherthe County's actions were unreasonable or unjustly discriminatory with respect to SDMB's skydiving operations at CRE. Under GrantAssurance 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 whetherthose measures and actions have been effective in ensuringthe safety and efficiency ofaircraft operations and to protectthe public using CRE. In

### mitigating skydiving safety, it is critical to mitigate the risks imposed upon other airport users, as well as non-participantpeople andproperty onthe ground. The record shows thatthe County attempted to control the use ofthe airport in a manner that would eliminate hazards to aircraft andpeople and structures onthe ground.558 

### The underlying safety risks were coordinated with and validatedbyFAA 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 ofthese prior incidents at the airport," but asks SDMB to give its "full commitment" in orderto continue to allow SDMB to conduct skydiving operations at CRE.559

sS4 FAA Order 5190.6B, pages 7-7, 7-8, and 7-9. sss FAA Exhibit 1, Item 1, page 10. SSG FAA Exhibit 1, Item 3, page 20 and 23. 557 FAA Exhibit 1, Item 3, pages 1-2. 558 For example, see FAA Exhibit 1, Item 5, pages 20-23. 559 FAA Exhibit 1, Item 1, Exhibit 3, pages 57. Page 64Skydive Myrtle Beach, Inc. v. Horry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) 

### As shown above, the record substantiates that, since 2013, a significant number ofsafety incidents have been documented. The numbers have increased and so has the rate. As recent examples, on July 25,2015, a total ofnine SDMB's skydivers landed outside the DZ. 560 

### On August 9, 2015 another five SDMB's skydivers landed outside the DZ, one ofwhich 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 descentpath took 

### hlm into the approach ofrunway 5, causing an aircraft (N208TS) to perform a 360 maneuver on fmaL563 

### 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 conditionrelated to a DZ on airportpropertyto exist. The high number ofroutine 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. 

### Itshould do so by coordinatingwith the FAA, utilizing reasonable protocols for safety risk management, revising related procedures, and enforcingthose requirements as needed. Skydiving operations at CREtake place under LOAs, and these shouldbeupdated. 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 91 564 

### and certain elements of 14 CFRPart 105 andrelated activities bythe certificated pilot, the aircraft itself, notthe uncertificated skydivers.565 

### The County, as the airport sponsor, bears the responsibilityfor takingmeasures to manage the safety ofits DZ. From a safety and compliance perspective, the Countymust assert its authority in this matterto ensure safe on-airport skydiving landings- that is the issue. While the FAAunderstands the complexities associated withthe current skydiving operations at CRE, including the contentious relationship betweenthe 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 cannotbe conducted safely at CRE under the existing conditions, whichrely, largely, on the existing DZ and related procedures. The safety incidents thathave been documented have been left unattended for a long time, and must be mitigated. 

### Summary on Grant Assurance 19 Againstthis background, because safetyhas been significantly compromised by SDMB operations at the Airport, and no satisfactoryresolution has been achieved despite the actions ofthe County, the County must take appropriate action such as closing the existing parachute DZuntil acceptable risk mitigation measures and revised procedures are considered and implemented. TheDirectorfmds that although the Countyhas taken steps towards mitigatingunsafe skydivingpractices, in orderto achieve an acceptable level ofsafety and ensure the safe operation ofthe airport, protectthe public and all aeronautical users at CRE, and to be consistent with GrantAssurance 19, the County is required to take additional corrective actions. As the airport sponsor, the County is obligatedto ensure that operations atthe airport are conducted with an acceptable level ofsafety. This may require adequate procedures, adherence to relevant standards and

560 See Table 1. 5&l See Table 1. 562 Runway Safety Area. SG3 FAA Exhibit 1, Item 21. 564 Such as Part 91.307 Parachutes andParachuting. 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 14CFR Part 105.17(a) and (b) when the pilot of askydiving 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. Page 65Skydive Myrtle Beach, Inc. v. Horry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) guidance, andthe abilityto take additional actions whennecessary, including enforcement. This is best achievedbyusing safetymanagementprinciples. FAA will also offer anyneeded assistance from its Airports (ARP), FAAAir Traffic (ATO), and FAAFlight Standards (AFS) offices to resolve this matter. Since this request for action by the FAA is based on substantiated safety concerns, temporarily closingthe DZ would not be considered contraryto the obligation to provide access onreasonable and not unjustly discriminatoryterms or conditions or other applicable federal obligations. Failure to take corrective action, on the other hand, wouldbe inconsistent with the County's federal obligations, as discussed above.566 

### D. Safety Summary The skydiving activities ofSDMB have been documented to be inconsistent with and in contravention ofthe applicable safetyguidance and requirements including minimum standards, leases safetyrequirements, requirements in the LOAs, ATC requirements, and 14 CFRPart 105. The findings regarding unsafe conditions are based onreasonable evidence and demonstrate that airport safety will continue to be compromised ifSDMB is allowed to continue the aeronautical activityuncorrected.567 The background and data inthis case puts the responsibilityfor the occurrences on the operator. Ofparticular concern to the Director is the fact that SDMB has denied thatthere are any safety deficiencies in this case and challenges any FAAintervention orrecommendations. This posture, indicative ofa poor safety culture, compoundsthe safety issue significantly. The Director fmds thatthe Countymust immediately address safety problems at CREto ensure safe operations, and to protectthe public and aeronautical users at CRE. VII. FINDINGS AND CONCLUSION Upon consideration ofthe submissions ofthe parties, andthe entire record herein, and the applicable law and policy and for the reasons stated above, the Director fmds and concludes: 

### Issue 1 - The County is notin violation ofGrantAssurance 22

### EconomicNondiscrimination. Issue 2- Unless immediate steps aretakeu, up to and includingclosure ofthe DZ, the County 

### will be considered to be in violation ofGrantAssurance 19 

### Operation andMaintenance. ORDER All Motions not expressly granted inthis Determination are denied. The FAAhas also determined that good cause exists to take action deemednecessaryto carry out the aviation statutes, including 49 U.S.C. 

### § 40113, 

### § 4710l(a)(1), 

### §47104(a), and 49 U.S.C 

### §47122. Therefore, the FAArequests that as soon as possible, the Countytake actionto mitigate the unsafe skydiving operations at CREby:
• (1) Taking appropriate action, such as ciosing568 the existingparachute DZ and rescinding related approvals; and

• (2) Submitting a corrective action plan incorporating acceptable riskmitigation measures and revised procedures under which safe skydiving operations mayresume.569

566 !n addition to the discussion concerning GrantAssurance 19, and although notdiscussed as a separate issue in this case, the Director notes that the request for a corrective action plan is consistent with Grant Assurance 29 AirportLayout

**Plan~** implements provisions of49 U.S.C.§ 47107(a)(16). This 1s because Grant Assurance 29 states that the "the sponsor will not make or permit any changes or alternations in the airport or any ofits faciHties that are not in conformity with the Airport Layout Plan as approved bythe Secretary and which might, in the opinion ofthe Secretary, adversely affect the safety, utility, or efficiency ofthe airport," and "ifa change or alteration in the airport or the facilities is made which the Secretary determines adversely affects the safety, utility, or effidency of any federally owned, leased, orfunded property on or offthe airport and which is not in conformity with the Airport Layout Plan as approved bythe Secretary, the owner or operator will, if requested bythe [FAA], eliminate such adverse effect in a manner approved by the [FAA].•." See Grant Assurance 29 AirportLayoutPlan. 567 See FAA Order 5190.68, page 8-8.

**~This** temporary closure ofthe 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 a!! classes ofskydivers (e.g., solo students, Class A) are all part ofthe safety deficiencies that have to be mitigated. Page 66Skydive Myrtle Beach, Inc. v. Horry County Deportment of Airports, South Carolina (FAA Docket No. 16-14-05)


### RIGHT TO APPEAl This Director's Determination, FAA DocketNo. 16-14-05, is an initial agency determination and does not constitute a fmal agency decision and order subject tojudicialreview. [14 CFR § 

### 16.247(b)(2)]. A party to this proceeding adversely affectedbythe Director's Determination may appeal the initial determination pursuant to 14 CFR 

### § 16.33(c) within thirty (30) days after service ofthe Director's Determination.

Randall S. Fiertz Director, Airport Compliance and Management Analysis Federal AviationAdministration Date '.' 7 /,..- ' (....- i;'} / .\

5Gs See Item 32. The information contained in Item 32 includes recommendations, gtJidance, and mitigating strategies which may be useful in addressing the situation at CRE. Page 67Skydive Myrtle Beach, Inc. v. Horry County Department of Airports, South Carolina (FAA Docket No. 16-14-05)


### INDEX OF THE ADMINISTRATIVE RECORD The following items constitute the administrative record in this proceeding: 

### FAA Exhibit 1 Item 

### lA Part 16Complaint dated February 24,2014. (First Complaint). Item 

### lB ComplaintDismissal, dated March 18,2014. Item 

### 1 Part 16 Complaint dated July I, 2014, includingExhibits 1-5 withpagination. (Second Complaint). Exhibit I

• E-mails between Complainant andRespondent (pages 1-25); • Grand Stand Space Use Permit (pages 26-21); Certificate ofInsurance, 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 72- 323); Exhibit 2

• Letter ofAgreement, January I, 2012 (page 1-3); • Operatingpermit, August I, 2013 (page 4-9); • E-mail from Mr. AaronHollyto Mr. RobertEastman (page 10-11); • HCDA Unusual IncidentReport, 5/26, 2014 (page 12); • E-mail from David 

### Y. Bannardto Mr. RobertEastman, June 27,2014 (page 14); • Office photography (page 15-16); • Affidavit ofAaron Holly, July I, 2014) (page I7-18); • Letter ofAgreement, 5/11/2012 (page 19-21); • Fire Code fme (page 22-24); • Voluntary Statements (page 25-26); • Letter from Myrtle Beach Aviation to Mr. AaronHolly, November 27, 2013 (page 27); • Certified Mail Receipt (page 28); Exhibit 3

• Correspondence between Complainant andRespondent from April through June 2014 (pages 1-25); • Grand Strand Airport Space Use Permit (not executed) (page 26-33); • Memorandum, from Myrtle BeachAviation all Customers, March 20, 2014 (page 34 ); • FAA letter dismissing Complaint, March 18,2014 (page 35-36); • Letter from HCDAto FAA concerningPart 16 proceedings, March 7, 2014 (page 37-38); Page 68Skydive Myrtle Beach, Inc. v. Horry County Department of Airports, South Carolina (FAA Docket No. 16-14-05)


### • Letter from Complainantto FAA amending pleadings, March 6, 2014 (page 39-42); • Letter from HCDAto FAA concerning Part 16 proceedings, March 4, 20-14 (page 43-45); • Letter from Mr. 

### RobertEastman to Mr.

### David Y. 

### Bannard, February 28, 2014 Qpage 46-47); • Letter from Mr. 

### David Y. 

### Bannard to Mr. 

### RobertEastman, February 26, 2014 (page 48-49); • Part 16 Complaintfiled by SDMB, February24, 20-14 (page 50-53); • Letter fromHCDA to SDMB, February 19,2014 (page 54-57); • Grand StrandAirport Space Use Permit (unexecuted) (page 58-66); • Letters between Complainant and HCDA, February 20I4 (page 67-88); Exhibit4

• Eviction documentation, May-June 17, 2014 (page 1-4); • Letter from David Y. Bannard to Mr. 

### RobertEastman, April28, 2014 (page 5-6); • Grand Strand Airport Space Use Permit, September 18,2013 (page 7-11); • OperatingPermit, August I, 2013 (page 12-15); Exhibit 5

• State Courtproceedings, February 20I4 (page 1-36); 

### Item2 FAA Notice of Docketing, July 28, 20I4. 

### Item3 Respondent'sMotion to Dismiss, August 22, 20I4, including exhibit A. 

### ExhibitA

• Copy ofPart I6 Complaint, dated July I, 20I4. 

### Item4 Complainant's Statementof Material Facts, September 8, 20I4, includingExhibits A, and B with pagination. Exhibit A

• State Court Proceedings documentation, July 25, 20I4 (page 1-109); Exhibit B



### ItemS • Letter from HCDA to Mr. 

### Aaron Holly, July I1, 2014 discussing the occupancy ofHangar 7 (page 1-5);
Respondent's Horry CountyDepartmentof Airport'sAnswerandAffirmative Defonses to Complainant' Skydive Myrtle Beach, Inc.'sPart 16Formal Complaint andStatement of MaterialFacts, dated October22, 20I4.

Page 69Skydive Myrtle Beach, Inc. v. -Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05) 

### Schedule A
• Statement ofFacts with Answers (page 1-26), and attachments (page 3-185); 

### ltem6 Complainant'sReply to Respondent'sAnswer, November 3, 2014, including ExhibitA with pagination. ExhibitA



### Item 7 • 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 7/3112014 (page 94-105); • E-mail from 

### Mr. Aaron Hollyto HCDA objectingto certsin Minimum Standards provisions, November 3, 2014 (page 106-107 );


### Complainants'Motion to Supplement the Pleadings, dated November 10,2014, including Exhibit I. 

### ExhibitA

• South Carolina State Case No. 2014-COP-26-1193; 

### ItemS Respondent'sRebuttal in Support of ItsAnswerandAffirmativeDefenses Complainant' Skydive Myrtle Beach, Inc. 's Part 16Formal Complaint andStatement of Material Facts, November 13, 2014, including attachments. Attachments

• E-mail from 

### Mr. David Smithto 

### Mr. Aaron Holly, November 12,2014 (page 188-190); • Unusual Incidentreports andphotography (page 191-194 ); • Minutes Horry County Council RegularMeeting, May 20,2014 (page 195-200); 

### Item 9 Complainant'sMotion to Supplement the Pleadings, December 30, 2014, including Exhibit I with pagination. Exhibit 1

• Minutes Horry County Council, April 4, 2014 (page1-25); • Chronological Table ofContents -Record ofAppeal (page 26-38); 

### Item 10 Respondent'sLetter in Opposition to Motion to Supplement the Pleadings, January 9, 2015. 

### Item 11 Complainant'sLetter in Support of Motion to Supplement the Pleadings, January I4, 2015, including Exhibits A and B with pagination. Page 70Skydive Myrtle Beach, Inc. v. Harry County Department of Airports, South Carolina (FAA Docket No. 16-14-05)


### Exhibit A

• Affidavit ofAaron Holly (page 1-8); • Letterto 

### Mr. AaronHolly from HCDA (no date) (page 12); • Harry County Hangar Use Permitfor N2019X (page 13-20); Exhibit B

• Memo from HCDArevisions 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 

### GrantHistory Report, CREAirport, 

### dated June 10, 2010. Item 13B 

### FAAForm 5010 for CRE. Item 13C 

### Harry CountyDepartment ofAirports Web Page. Item 14 

### FAA Southern Region Letter of Inquiry, 

### dated April?, 2015. Item 15 

### Harry County Letter to FAA Southern Region re: Letter of Inquiry, 

### April27, 2015. Item 16 

### RelevantNews Media. Item 17A 

### Letter ofAgreement (LOA) Parachute Operations atNorth Myrtle Beach, SC, 

### May 11,2012. Item 17B 

### Letter ofAgreement (LOA) GrandStrandAir Trqffic Control Tower andHarry County Departmentof Airports, 

### January 1, 2012.
Page 71Skydive Myrtle Beach, Inc. v. Harry County Deportment of Airports, South Carolina (FAA Docket No. 16-14-05) 

### Item 18 Reserved. 

### Item 19 Skydiving andParachute Operations, P-8740-57 (1997). 

### Item20 Harry CountyAdministrative CommitteeAgenda, December 6, 2013 and ResolutionR-13, December 10, 2013. 

### Item 21 CRE SafetyIncidents data (Compiled August 18,2015 byM. Vasconcelos, AC0-100). 

### Item22A West Columbia, South CarolinaFSDO Letterto SDMB, May 6, 2015. 

### Item22B Memorandum SkydiveMyrtle BeachParachuteIssues, from FSD0-13 to AS0-200, July 31, 2015; (Updated 8/13115). 

### Item23 USPA Safety & 

### TrainingAdvisorHandbook, January 2015. 

### Item24A USP A SkydivingAircraft OperationsManual. 

### Item24B 2014-2015 Skydiver's Information Manual. 

### Item 25 Horry CountyPress Release, September 26, 2013. 

### Item26 CREMinimum Standards, January 20, 2015. 

### ltem27 Canopy Risk Quotientrisk assessment tool. 

### Item28 Accident and incidentreports. Page 

### 72Skydive Myrtle Beach, Inc. v. Harry County Department ofAirports, South Carolina (FAA Docket No. 16-14-05)


### Item29 Letter from FAADirector ofAirport Safety and Standards to the County, September 1, 2015. 

### Item30 Letter from the Countyto FAADirector ofAirport Safety and Standards, September 17, 2015. 

### Item 31 Letter from the Countyto FAADirector ofAirport Safety and Standards, September 30, 2015. 

### Item32 Skydiving safetyrecommendations, references, and guidance.

Page 73