New Helicopter Rules on FAA's Horizon

The Federal Aviation Administration ("FAA") plans to change current rules governing the certification of rotorcraft weighing 7,000 pounds or less with nine passengers seat or less, under Part 14 of the Code of Federal Regulations, Part 27. 

According to the FAA,several comments on its proposal to move forward "indicated a substantial interest in favor of some form of revision or restructure of the rotorcraft design certification standards ... [and stated that] the current regulatory scheme is outdated by technology and impedes the development of new rotorcraft models."

According to one source:

Helicopter Association International, in its comments posted online, said, "Rapid advances in technology over the past 20 years have challenged the current standards. At the same time, recent rulemaking activities on Part 23 regulations have been making very promising progress with proposals to simplify complex rules and reduce certification costs significantly, while enabling design improvements and the adoption of new safety technology. Because of these developments, we believe that we have a unique opportunity, right now, to conduct a full-scale review and overhaul of Parts 27 and 29. We should take advantage of this opportunity by immediately moving ahead with an effort to restructure rotorcraft airworthiness standards." The current rules, HAI added, "create unnecessary impediments to the adoption of new technology, unnecessarily increase the costs and delay development of new aircraft designs."

No timeline has been set by the FAA and some general aviation manufacturers have said they hope the new Part 23 revision will enable them to certify new models twice as fast, with half the costs.

General Aviation Pilot Certification Re-Examined

The United States Department of Transportation has announced that it has "joined with the Cornell e-Rulemaking Initiative in a pilot project to explore ways to use the Internet, blogging, and social media to help ease and encourage greater public participation in DOT rulemaking."

The platform is "RegulationRoom," which is designed and operated by "CeRI" (the Cornell eRulemaking Initiative) to provide "an online environment for people and groups to learn about, discuss, and react to selected rules (regulations) proposed by federal agencies. It expands the types of public input available to agencies in the rulemaking process, while serving as a teaching and research platform."

Meanwhile, it is reported that the Federal Aviation Administration ("FAA") is bringing flying and driving together by evaluating a proposed rule that would allow private pilots to use a driver’s license instead of a medical certificate.

This issues arise from a joint petition filed two years ago by the Aircraft Owners and Pilots Association ("AOPA") and the Experimental Aircraft Association ("EAA") requesting that a third-class medical exemption cover more recreational pilots.

Meanwhile, related legislation in the form of a General Aviation Pilot Protection Act ("GAPPA," House Bill H.R. 3708 and Senate Bill S.2103), is pending in Congress.  Essentially, a driver's license would double as a pilot's license in specific situations.

These efforts parallel a study suggesting that the FAA improve the usability of its online application system and clarity of its pilot's medical form.

Aviation Diplomacy - Part of the Problem?

As I teach my aviation law students, where fault is established as a matter of fact and evidence, the law does the best it can to compensate the families of those who are lost in aviation accidents, but it is not a science and it is hard for survivors to believe that the concept of justice has ever "been done."

Quite simply, the emotional trauma -- present on a personal, social (e.g., community) and even global level -- is lasting.  All the more reason the recent tragedy of Malaysia Flight 370 is so disturbing and why the lack of a coherent explanation for the disaster some 8 days and counting aggravates a horrible situation.

Journalists and investigators and regular airline passengers around the world are stunned this week with news of perhaps the strangest tragedy in aviation history: A Malaysia Airlines Boeing 777 disappeared from civilian RADAR (apparently) during ordinary cruising flight.

At this early stage of the investigation (but a painfully late stage for the families and friends who hold out hope) there is no shortage of theories -- from the logical to the imaginative.  That said, Malaysian authorities have (more than a week after the incident) stated that the "Evidence is consistent with someone acting deliberately from inside the plane," officially confirming the plane's disappearance was not caused by an accident.  ["Deliberate" is not a sinister term standing alone, yet the context here suggests otherwise.]

Among other interesting things about all this is that the person making the announcement is no less than the Prime Minister of Malaysia.  That is a noticeable feature -- and not necessarily an encouraging feature -- of this aviation incident involving a national "flag carrier."

In the United States, air carriers are private and work with the National Transportation Safety Board ("NTSB") which takes the lead in investigating and determining the "probable cause" of an aviation accident.  The NTSB's report is not admissible in a court of law for liability purposes; the policy reason for this is to encourage efforts to find out what happened and why - not to adjudicate who is to blame from a damages perspective, if anybody.

Compare that against the Malaysia investigation where the government itself seems guarded in its dissemination of information that is, for starters, time critical.

From a practical perspective, this is all explicable as the New York Times reported --

By international agreement, the country in charge of investigating a plane crash or other such event is the one where it occurred. If a plane comes down in international waters, jurisdiction goes to the country whose carrier was involved. In this mystery, the presumption is that the problem is Malaysia’s. But whoever is officially responsible, there is a guiding American principle.

We try very hard not to make it look like we are running the investigation, even if we more or less are,” said Bernard Loeb, a former head of aviation safety at the National Transportation Safety Board, which leads the American delegation of experts at any crash involving an American airline or an airplane built in the United States. When crashes occur here, foreign aircraft or engine manufacturers like Airbus or Rolls-Royce get the same “observer” status and often contribute technical expertise.

From a legal perspective, however, if (and when) lawsuits arise from Malaysia 370, the jurisdiction and laws (not least of which is the so-called Montreal Convention) involved will be as varied as the hundreds of souls from around the world aboard the airplane -- making a strong and transparent and organized investigation all the more important.

FAA Issues Final Rule to Improve Helicopter Safety

Nearly coincident with the helicopter industry's new global safety campaign (and as a follow-up to a previous blawg), the U.S. Department of Transportation’s Federal Aviation Administration ("FAA") recently issued a final comprehensive rule that 

requires helicopter operators, including air ambulances, to have stricter flight rules and procedures, improved communications, training, and additional on-board safety equipment. The rule represents the most significant improvements to helicopter safety in decades and responds to government’s and industry’s concern over continued risk in helicopter operations.

According to the FAA, within 60 days, all operators will be required to use enhanced procedures for flying in challenging weather, at night, and when landing in remote locations. And, within three years, helicopter air ambulances must use the latest on-board technology and equipment to avoid terrain and obstacles, and within four years, they must be equipped with flight data monitoring systems.

"Helicopter safety came under the spotlight after the number of air ambulance accidents reached 'historic levels' between 2003 and 2008, with 2008 being the deadliest," according to Aviation Week.

Under the new rule, all Part 135 helicopter operators are required to:

• Equip their helicopters with radio altimeters.

• Have occupants wear life preservers and equip helicopters with a 406 MHz Emergency Locator Transmitter (ELT) when a helicopter is operated beyond power-off glide distance from the shore.

• Use higher weather minimums when identifying an alternate airport in a flight plan.

• Require that pilots are tested to handle flat-light, whiteout, and brownout conditions and demonstrate competency in recovery from an inadvertent encounter with instrument meteorological conditions.

In addition, under the new rule, all air ambulance operators are required to:

• Equip with Helicopter Terrain Awareness and Warning Systems (HTAWS).

• Equip with a flight data monitoring system within four years.

• Establish operations control centers if they are certificate holders with 10 or more helicopter air ambulances.

• Institute pre-flight risk-analysis programs.

• Ensure their pilots in command hold an instrument rating.

• Ensure pilots identify and document the highest obstacle along the planned route before departure.

• Comply with Visual Flight Rules (VFR) weather minimums, Instrument Flight Rules (IFR) operations at airports/heliports without weather reporting, procedures for VFR approaches, and VFR flight planning.

• Conduct the flight using Part 135 weather requirements and flight crew time limitation and rest requirements when medical personnel are on board.

• Conduct safety briefings or training for medical personnel.

The complete rule can be viewed here.

Rule Changes in the Air

The Federal Aviation Administration ("FAA") has determined that airlines can safely expand passenger use of Portable Electronic Devices (PEDs) during all phases of flight, and is immediately providing the airlines with guidance. "Expanded use will not happen overnight," says the FAA.  "The process will vary among airlines, but the agency expects airlines to allow passengers to safely use their devices in airplane mode, gate-to-gate, by the end of 2013."

Meanwhile, as part part of its "ongoing efforts to enhance safety and put the best qualified and trained pilots in the flight decks of U.S. airplanes," the FAA also issued a final rule that will significantly advance the way commercial air carrier pilots are trained. 

In addition, FAA Administrator Michael Huerta is inviting the nation’s commercial aviation safety leaders to Washington, D.C. on November 21, to discuss additional voluntary steps that can be taken to further boost safety during airline operations, including pilot training.

“Today’s rule is a significant advancement for aviation safety and U.S. pilot training,” said U.S. Transportation Secretary Anthony Foxx. “One of my first meetings as Transportation Secretary was with the Colgan Flight 3407 families, and today, I am proud to announce that with their help, the FAA has now added improved pilot training to its many other efforts to strengthen aviation safety.”

The final rule stems in part from the tragic crash of Colgan Air 3407 in February 2009, and addresses a Congressional mandate in the Airline Safety and Federal Aviation Administration Extension Act of 2010 to ensure enhanced pilot training. The rule is one of several rulemakings required by the Act, including the requirements to prevent pilot fatigue that were finalized in December 2011, and the increased qualification requirements for first officers who fly U.S. passenger and cargo planes that were issued in July 2013.

The final rule requires:

• ground and flight training that enables pilots to prevent and recover from aircraft stalls and upsets. These new training standards will impact future simulator standards as well;
  
• air carriers to use data to track remedial training for pilots with performance deficiencies, such as failing a proficiency check or unsatisfactory performance during flight training;
  
• training for more effective pilot monitoring;
  
• enhanced runway safety procedures; and
  
• expanded crosswind training, including training for wind gusts.

"This pivotal rule will give our nation’s pilots the most advanced training available,” said FAA Administrator Michael Huerta. “While the rule marks a major step toward addressing the greatest known risk areas in pilot training, I’m also calling on the commercial aviation industry to continue to move forward with voluntary initiatives to make air carrier training programs as robust as possible.”  

The FAA is focusing on pilot training for events that, although rare, are often catastrophic. Focusing on these events will provide the greatest safety benefit to the flying public. The recent rule to boost pilot qualifications for first officers has raised the baseline knowledge and skill set of pilots entering air carrier operations. Many air carriers have also voluntarily begun developing safety management systems (SMS), which will help air carriers identify and mitigate risks unique to their own operating environments.

The FAA proposed to revise the training rules for pilots in 2009, one month prior to the Colgan Flight 3407 accident. The FAA issued a supplemental proposal on May 20, 2011, to address many of the NTSB’s recommendations resulting from the accident, and incorporate congressional mandates for stick pusher, stall recovery and remedial training. A stick pusher is a safety system that applies downward elevator pressure to prevent an airplane from exceeding a predetermined angle of attack in order to avoid, identify, or assist in the recovery of a stall.

On Aug. 6, 2012, the FAA issued Advisory Circular (AC) Stall and Stick Pusher Training to provide best practices and guidance for training, testing, and checking for pilots to ensure correct and consistent responses to unexpected stall events and stick pusher activations.

Air carriers will have five years to comply with the rule’s new pilot training provisions, which will allow time for the necessary software updates to be made in flight simulation technology. The cost of the rule to the aviation industry is estimated to be $274.1 to $353.7 million. The estimated benefit is nearly double the cost at $689.2 million. 

The final rule is available here.

Small Airplane Revitalization Act of 2013

ConProgress!

This week the government shutdown on account of a fierce dispute between Republicans and Democrats concerning, chiefly, President Obama's Affordable Health Care Act.

Somehow, someway, however, Congress also found time to do something productive, namely by enacting the "Small Airplane Revitalization Act of 2013 " ("SARA2013").

On October 5, 2013, the Senate announced its adoption of the SARA2013, with amendment:

Small Airplane Revitalization Act of 2013
 
At its core, the SARA2013 would help manufacturers bring new technology for Part 23 general aviation airplanes to the market faster.

Back in August (when the legislation initially (and unanimously passed the House of Representatives), the president of the General Aviation Manufacturers Association ("GAMA") remarked:

“This legislation will help industry and the FAA develop and adopt more effective regulations and standards that will spur manufacturers’ investment in new aircraft designs; it will also help put critical lifesaving equipment into the existing fleet of airplanes.  These changes represent a ‘win-win’ by enhancing safety and relaxing unnecessary regulatory cost burdens on industry and the FAA, which will help revitalize the lighter end of general aviation.”

Keeping up with the Times: Aircraft Certification Rules Updated

The FAA Modernization and Reform Act of 2012 requires the Federal Aviation Administration ("FAA"), in consultation with the aviation industry, to conduct an assessment of the aircraft certification and approval process.

In response to this mandate, the FAA announced it is "streamlining aircraft certification and approval processes to keep pace with technological advancements in aviation products and to help the United States maintain global competitiveness. The plan responds to recommendations in the May 2012 Aircraft Certification Process Review and Reform Aviation Rulemaking Committee report to enhance the efficiency of getting new products to market while improving safety." Says the FAA:

Many initiatives are already complete or underway. For example, the FAA is preparing to update the Part 23 regulations that cover design and safety standards for small, general aviation aircraft. The goal is to increase safety, decrease costs, and increase the installation of safety equipment for general aviation. The FAA also published for public comment a new process for initiating and managing FAA resources assigned to projects; it promotes more predictable planning for the applicant. And the FAA has issued an update to the Organization Delegation Authorization Order (8110.4D) and established an Aviation Rulemaking Committee to consider updates for certification procedures and safety management systems in Part 21.

As aircraft operators review their compliance strategy, the plan, which will be updated every six months, can be evaluated here. 

Ground Matters

News is now filtering in about a recent commercial airline accident apparently owing to a front landing gear malfunction.

View more videos at: http://nbcnewyork.com.

There have been several accidents or incidents at New York's LaGuardia Airport, including this one. There was Flight 5050, where a 737 went off a runway

And, of course, there was Captain "Sully" Sullenberger and the "Miracle on the Hudson"

All of these events, together with the recent tragedy in San Francisco, highlights how important the aviation environment and airports are even beyond safety in the national airspace.  The Federal Aviation Administration ("FAA") strictly regulates most airport operations.  Ground operations can make aviation incidents worse, or as apparently happened in this case, well, not as bad.  

From a legal perspective, aviation accidents involve many more actors than just the airplane and its crew.  Air traffic control, ground operators, manufacturers, and many other parties are involved (thought not necessarily responsible or liable) both in accident litigation - and aviation safety.

FAA General Aviation Records Incomplete

It is not the case that anybody can own an airplane in America.  This statement is not a comment about who can or cannot afford a general aviation airplane, but rather a legal fact.  Federal regulations strictly limit and mandate ownership and registration of airplanes to American citizens.  Alternatively, non-U.S. interests can take ownership stakes in airplanes through legal mechanisms called trusts.

Under federal law aircraft owners must keep the registration of their airplanes current with the Federal Aviation Administration ("FAA").  The FAA has a corresponding interest in keeping its records fresh, but apparently that has not been done.

Given the above background, it is interesting to note recent news that, according to an audit by the Department of Transportation's Inspector General, the FAA's civil aviation registry is incomplete with respect to the identify of non-citizen aircraft owners and pilot certifications.

“We found incomplete registrations for about 5,600 aircraft, or 54 percent, owned under trusts for non-U.S. citizens,” the audit report said. “As a result, the FAA has been unable to provide information on these aircraft to foreign authorities upon request when U.S.-registered aircraft are involved in accidents or incidents in foreign lands, as required by the Convention on International Aviation.”

(The full report is here.)

All of this follows the FAA's release of long-anticipated policy clarification related to the registration of aircraft to U.S. citizen trustees in situations involving non-U.S. citizen trustors and beneficiaries.

Why General Aviation is Important to Oklahoma

Think quickly: If you are a car owner, where must you register and record ownership of your car? 

Think more carefully: If you own an airplane, where should you register and record your ownership interest?

The solution is a typical lawyer's refrain: It depends. For cars, owners simply register their ownership in the state in which they reside as a general rule. Airplane ownership is more nuanced, complicated (necessarily so) by issues like tax, nationality, and even national security.

In fact, not all airplane owners are even eligible to register their airplanes in the United States (let alone any particular state) unless they meet certain requirements under federal aviation regulations. The law says that

[a]n aircraft is eligible for U.S. Registration if it is not registered in another country and it is owned by: 

• a U.S. citizen as defined by law;
• a Resident Alien (foreign individual lawfully admitted for permanent U.S. residence);
• a U.S. governmental unit or subdivision; or
• a non-citizen corporation lawfully organized and doing business under the laws of the U.S. or one of the States as long as the aircraft is based and primarily used in the U.S. (60% of all flight hours must be from flights starting and ending within the U.S.).

An aircraft may be registered only by and in the legal name of its owner.

Interesting, but what does it have to do with the title of this blawg.  Well, presuming an aircraft can be registered in the United States, it is vital that its owner  understand that the recording and registration process for airplanes registered in America are maintained through the Oklahoma aircraft registration branch of the Federal Aviation Administration and not simply in the state (Florida, Nebraska, wherever).  Aviation counsel plays an important role in aviation transactions in this regard.

It would be a mistake to conclude this legal discussion without acknowledging the pain of many in Oklahoma on account of recent devastating tornadoes there.  The important deployment and use of  weather helicopters, together with  search and rescue efforts by the business aviation community, should be a reminder of the vital importance of general aviation.