AVIATION (OSHA) / Recent legislation (FAA Modernization and Reform Act of 2012) requires the Federal Aviation Administration to develop a statement of policy about “the circumstances in which the requirements of the [U.S. Department of Labor Occupational Safety and Health Administration] OSHA may be applied to crewmembers while working in an aircraft”. This FAA “Policy Statement” does not state policy as much as it invites comment.

“Occupational Safety and Health Standards for Aircraft Cabin Crewmembers”

August 27, 2013. Notice Of Availability; Final Policy And Disposition Of Comments.

This announcement details various comments received from industry stakeholders, together with FAA and OSHA replies.

Text of “Policy Statement on Occupational Safety and Health Standards for Aircraft Cabin Crewmembers” available here.

AVIATION (ASDI LIMITATIONS) / Federal Aviation Administration finalizes the process by which aircraft owners and operators may ask the FAA to limit the FAA’s dissemination of their aircraft data by means of the Aircraft Situation Display to Industry (ASDI) data feed to the airline industry.

“Access to Aircraft Situation Display to Industry (ASDI) and National Airspace System Status Information (NASSI) Data”

August 21, 2013. Final Notice Of The Process For Limiting Aircraft Data Displayed Via ASDI.

ASDI is a data feed hosted by U.S. DOT’s Volpe Center. This data feed is made available to airlines for purposes of safety. It includes information about aircraft location, together with data relating to altitude, airspeed, destination and various additional points. Continue reading

AVIATION (PROPOSED CANCELATION OF NDB AND VHF-VOR CAPABILITIES) / Notice of Proposed Policy and Request for Comment – “The FAA [Federal Aviation Administration] is considering the cancellation of certain Non-directional Beacon (NDB) and Very High Frequency (VHF) Omnidirectional Radio Range (VOR) instrument approach procedures (IAP) at airports that have multiple instrument approach procedures. The FAA proposes specific criteria to guide the identification and selection of appropriate NDB and VOR instrument approach procedures that can be considered for cancellation. The VOR IAPs associated with this cancellation initiative would be selected from the criteria outlined below. This Notice is not a part of the FAA’s VOR minimum operating network (MON) initiative.”

FAA’s reasoning: “As, new technology facilitates the introduction of area navigation (RNAV) instrument approach procedures over the past decade, the number of procedures available in the National Airspace System has nearly doubled. The complexity and cost to the Federal Aviation Administration (FAA) of maintaining the existing ground based navigational infrastructure while expanding the new RNAV capability is not sustainable.”

“Proposed Policy for Discontinuance of Certain Instrument Approach Procedures” 

August 2, 2013. Notice Of Proposed Policy And Request For Comment

AVIATION (FAA CERTIFICATION OF AIRCRAFT) / Federal Aviation Administration (FAA) announced: “The FAA 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.”

FAA announcement available here.

Plan itself available here.

EMPLOYMENT (PILOT RIGHTS & SAFETY DECISIONS) / Cargo airline disciplined pilot in charge of flight where pilot / PIC took safety precaution (asked for change in alternate airport assigned in flight into China) and airline-employer believed pilot’s / PIC’s action unnecessary – held: (1) There is no private right of action available to pilot / PIC to vindicate his rights as he views them pursuant to the Federal Aviation Regulation, and (2) no violation by airline of the Railway Labor Act either.

Airline Professionals Association, Teamsters Local Union No. 1224 v. ABX Air, Inc., Case No. 1:12cv569 (U.S. District Court for the Southern District of Ohio, July 12, 2013. Copy of court-issued opinion available here.

AVIATION (DRUG & ALCOHOL TESTING) / “This rulemaking allows air carrier operators and commuter or on-demand operators that also conduct commercial air tour operations to combine the drug and alcohol testing required for each operation into one testing program. The current rule requires those operators to conduct separate testing programs for their commercial air tour operations.”

“Combined Drug and Alcohol Testing Programs.”

Final Rule. July 15, 2013.

The current rule, “results in an unnecessary duplication of effort. The intended effect of this rulemaking is to decrease operating costs by eliminating the requirement for duplicate programs while maintaining the level of safety intended by existing rules. This final rule also clarifies existing instructions within the rule, corrects a typographical error, and removes language describing a practice that has been discontinued.”

“ … [I]n May 2009, the FAA published the Drug and Alcohol Testing Program rule. That rule moved the drug and alcohol testing regulations into a new part 120.

“Part 120 of Title 14 of the Code of Federal Regulations (CFR) requires the establishment of a drug and alcohol testing program designed to prevent accidents and injuries that result from the use of prohibited drugs and the misuse of alcohol. Specifically, the rule requires three groups of operators to implement a drug and alcohol testing program:

  • Part 119 certificate holders authorized to conduct part 121 operations.
  • Part 119 certificate holders authorized to conduct part 135 operations.
  • Commercial air tour operators as defined in § 91.147.

“These requirements are meant to ensure that any person who performs safety-sensitive functions for these operators, either directly or by contract (including subcontractor at any tier), is subject to drug and alcohol testing.

“Under the current rules, operators who are conducting a part 121 or part 135 operation and commercial air tour operations must administer separate drug and alcohol testing programs. Numerous operators have petitioned the FAA for an exemption from the requirement to maintain two separate drug and alcohol testing programs because having two programs often requires testing the same employees twice. This duplication adds administrative and financial burdens for the operator but it does not increase safety.

Since 2008, the FAA has granted approximately 135 exemptions allowing operators to implement a single testing program. Given the large number of exemptions that the Agency has granted, and the need to renew them every two years, the FAA believes it is appropriate to simply amend the existing rule. This approach relieves operators from seeking an operator-specific exemption. In granting these exemptions, the FAA has recognized that, in most cases, the same employees and equipment are used interchangeably between the part 121 or part 135 operation and its commercial air tour operation. Therefore, the FAA has found that when a part 119 certificate holder operates both a part 121 or a part 135 operation and a § 91.147 commercial air tour operation, combining the two testing programs maintains a level of safety equivalent to that provided by the current regulations. Under one testing program, employees are still subject to drug and alcohol testing in accordance with part 120. Any existing exemptions for combined testing programs held by part 121 or part 135 operators that also conduct § 91.147 operations will expire on the effective date of this rule. Those certificate holders with current exemptions need not take any action to comply with the requirements outlined in this rule.”

AVIATION (PILOT QUALIFICATIONS) / Now a second-in-command pilot (first officer) in domestic, flag, and supplemental operations must hold an airline transport pilot certificate and an airplane type rating for the aircraft to be flown. An airline transport pilot certificate requires that a pilot be 23 years of age and have 1,500 hours total time as a pilot. This is the so-called new “co-pilot” rule.

“Pilot Certification and Qualification Requirements for Air Carrier Operations.”

Final Rule. July 15, 2013.

This was the “co-pilot” rule the Federal Aviation Administration announced last week, to news stories with titles like “New, Tougher Co-Pilot Rule Aims To Boost Plane Safety.”

“This action creates new certification and qualification requirements for pilots in air carrier operations. As a result of this action, a second in command (first officer) in domestic, flag, and supplemental operations must now hold an airline transport pilot certificate and an airplane type rating for the aircraft to be flown. An airline transport pilot certificate requires that a pilot be 23 years of age and have 1,500 hours total time as a pilot. Pilots with fewer than 1,500 flight hours may qualify for a restricted privileges airline transport pilot certificate beginning at 21 years of age if they are a military-trained pilot, have a bachelor’s degree with an aviation major, or have an associate’s degree with an aviation major. The restricted privileges airline transport pilot certificate will also be available to pilots with 1,500 flight hours who are at least 21 years of age. This restricted privileges airline transport pilot certificate allows a pilot to serve as second in command in domestic, flag, and supplemental operations not requiring more than two pilot flightcrew members. This rule also retains the second-class medical certification requirement for a second in command in part 121 operations. Pilots serving as an air carrier pilot in command (captain) must have, in addition to an airline transport pilot certificate, at least 1,000 flight hours in air carrier operations. This rule also adds to the eligibility requirements for an airline transport pilot certificate with an airplane category multiengine class rating or an airline transport pilot certificate obtained concurrently with a type rating. To receive an airline transport pilot certificate with a multiengine class rating a pilot must have 50 hours of multiengine flight experience and must have completed a new FAA-approved Airline Transport Pilot Certification Training Program. This new training program will include academic coursework and training in a flight simulation training device. These requirements will ensure that a pilot has the proper qualifications, training, and experience before entering an air carrier environment as a pilot flightcrew member.” 

AVIATION (AIRLINE DERULATION ACT & PREEMPTION) – Airline Deregulation Act preempted state common law claims of unjust enrichment and tortious interference, among others, in putative class action brought by skycaps at Boston Logan Airport against airlines that each introduced a $2 per bag fee for curbside service for departing passengers at airports (i.e., that the airlines, not the skycaps, received).

Brown v. United Airlines, Inc., No. 12-1543 (U.S. Court of Appeals for the 1st Circuit, July 10, 2013). Free copy of court-issued opinion available here.

AVIATION (FLIGHT DATA RECORDERS) / Amends the operating regulations (14 C.F.R.) for flight data recorders by correcting errors in recording rates in three different appendices.

“Flight Data Recorder Airplane Parameter Specification Omissions and Corrections.”

July 3, 2013. Final Rule; Request for comments.

“This final rule amends three appendices in 14 CFR related to flight data recorder (FDR) requirements.

First, Appendix E to part 91 is amended to correct what appears to be a typographical error introduced when the rule was published. Currently, for the altitude parameter, the sampling rate per second is listed as 11. The correct rate has always been 1 sample per second. A review of the original typewritten document that was submitted for publication suggests that a stray mark caused the number to be translated as 11. The sample rate of 1 per second was in the proposed rule (53 FR 4314; February 12, 1988) and the final rule (54 FR 34284; August 18, 1989). Since a sample rate of 11 is unknown in the industry and compliance would require a major airplane equipment modification, affected operators have understood that this was a typographical error, and complied with the 1 sample per second rate. Despite the age of the error, this correction does not comprise the adoption of a different standard that will affect airplanes operating under these regulations since any initial misunderstandings have been clarified when the agency was contacted.”

“The second and third corrections concern identical standards in Appendix M to part 121 and Appendix E to part 125. In each Appendix, footnote 5 was added following a petition for rulemaking from Airbus Industries and subsequent rulemaking to adopt the changes (64 FR 46117; August 24, 1999), as evidenced by the discussion in the preamble to that rule. However, the current regulation lists only the adjustment for the resolution, and not the sampling interval. This action puts the sampling interval of once per second back in to the footnote for the affected airplanes. Since the airplane can be operated under parts 121 or 125 using the identical standard, the appendices for each are being corrected.”

“None of these changes will require action by airplane owners, operators or manufacturers as the affected airplanes already comply with the requirements of the originally adopted rules and the corrections adopted here. Since these requirements were intended in the original rules, there is no new impact on safety. The correction of these errors and omissions will prevent future confusion and require less contact between the FAA and regulated entities who must comply with the regulations.”

AVIATION (SPECIFIED SMALLER JET LESS THAN 75,000 POUNDS) / Amends the airplane operating regulations for jet airplanes with a maximum weight of 75,000 pounds or less operating in the United States: After December 31, 2015, such airplanes will not be allowed to operate in the contiguous United States unless they meet Stage 3 noise levels.

“Adoption of Statutory Prohibition on the Operation of Jets Weighing 75,000 Pounds or Less That Are Not Stage 3 Noise Compliant.”

July 2, 2013. Final Rule.

“This rulemaking amends the airplane operating regulations to include certain provisions of the FAA Modernization and Reform Act of 2012 that affect jet airplanes with a maximum weight of 75,000 pounds or less operating in the United States. The law provides that after December 31, 2015, such airplanes will not be allowed to operate in the contiguous United States unless they meet Stage 3 noise levels. This final rule incorporates that prohibition and describes the circumstances under which an otherwise prohibited airplane may be operated.”

“In February 2012, in section 506 of the FAA Modernization and Reform Act of 2012 (“the Act”), Congress prohibited the operation of jet airplanes weighing 75,000 pounds or less in the contiguous United States after December 31, 2015, unless the airplanes meet Stage 3 noise levels. The Act also describes certain circumstances under which otherwise prohibited operations will be allowed. These provisions have been codified at 49 U.S.C. 47534.

“This final rule codifies the statutory prohibition and relieving circumstances into the regulations in 14 CFR. The FAA has no discretion to change any provision of the statute, and it is being codified into the regulations as adopted. The statute also directs the Secretary of Transportation to prescribe the regulations necessary to implement the statutory provisions.”