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.” 

AVIATION (FEDERAL AVIATION ADMINISTRATION SAFETY INSPECTORS) / U.S. Department of Transportation Office of the Inspector General: The FAA lacks a reliable model for determining the number of flight standards safety inspectors it needs.

Summary here and report here.

“Our audit found that although FAA introduced a new inspector staffing model in October 2009, FAA has not fully relied on the model’s results to determine the number and placement of inspectors needed. This is due in part to continued concerns with the model’s incomplete, inaccurate, and outdated data. Without a reliable inspector staffing model, FAA’s process for assessing the number of inspectors and analysts it needs does not differ significantly from prior ineffective methods. For example, inspector staffing processes vary by region, which can lead to subjective and inconsistent staffing decisions. Finally, FAA supplements its regular inspections through its geographic surveillance program, a helpful oversight tool. However, we identified concerns with geographic inspector training and workload levels that may undermine the program’s success.

“We made seven recommendations to enhance FAA’s inspector staffing model and geographic surveillance program; FAA concurred with six and partially concurred with one. We are requesting additional information or a revised response for two recommendations.”

REMARKS / National Transportation Safety Board Chair Deborah A.P. Hersman addressed the Wings Club of New York in a speech that emphasized the NTSB’s independence with respect to aviation safety as the NTSB’s role relates to the Federal Aviation Administration’s role, and states that the past 52 months’ absence of fatalities in commercial aviation “does not equal safety”. Former FAA Acting Administrator Joe del Balzo responds that Chair Hersman’s view is informed by the limits of her own professional background (U.S. Senate staffer and government official): “C]riticism is more powerful if the critic understands the capabilities of the criticized”. Comment: This tension of roles and professional backgrounds is healthy and necessary. That’s not a bromide: Even Babe Ruth needed umpires to call balls and strikes.

Copy of NTSB Chair Hersman’s speech to the New York Wings Club available here. Interview with Condé Nast thereafter available here.

Copy of Joe del Balzo’’s piece in JDA Aviation Consultancy Blog available here.

Legal take-away:

First, the NTSB and the FAA, respectively, each have roles that are distinct from the other. NTSB Chair Hersman’s view of her agency’s mission is to be a fiercely independent in its evaluation of the transport modes under its jurisdiction.

And, beyond transport modes, to infrastructure.

Second, aviation is not the only mode in which Chair Hersman’s NTSB is voicing starkly different safety prescriptions to those adopted (at least not yet) by the federal U.S. DOT agency tasked with safety regulation (see in-cab recorder issue as addressed by NTSB and U.S. Federal Railroad Administration, respectively, in this blog edition of “Comment”). 

Practical take-away

The fact that U.S. commercial aviation has not had a fatality during the past consecutive 52 months can give rise to more than one inference about the state of U.S. commercial aviation safety.

Post hoc, ergo propter hoc”: A occurred then B occurred, therefore A caused B.


I think that NTSB Chair Hersman has the better argument here. Unless you buy the post hoc approach, we need an unremitting demand for empirical evidence to conclude that U.S. commercial aviation is truly safe.

As Doug Hall, one of my favorite authors in another field (a chemical engineer who writes about marketing) puts it: “In God we trust, all others … bring data.” 

AVIATION (ENHANCED FLIGHT VISION SYSTEM) / “The FAA is proposing to permit operators to use an Enhanced Flight Vision System (EFVS) in lieu of natural vision to continue descending from 100 feet above the touchdown zone elevation to the runway and land on certain straight-in instrument approach procedures under instrument flight rules (IFR). This proposal would also permit certain operators using EFVS-equipped aircraft to dispatch, release, or takeoff under IFR, and to initiate and continue an approach, when the destination airport weather is below authorized visibility minimums for the runway of intended landing.”

“Revisions to Operational Requirements for the Use of Enhanced Flight Vision Systems (EFVS) and to Pilot Compartment View Requirements for Vision Systems

June 11, 2013. Notice of Proposed Rule Making.

“ … Under this proposal, pilot training, recent flight experience, and proficiency would be required for operators who use EFVS in lieu of natural vision to descend below decision altitude, decision height, or minimum descent altitude. EFVS-equipped aircraft conducting operations to touchdown and rollout would be required to meet additional airworthiness requirements. This proposal would also revise pilot compartment view certification requirements for vision systems using a transparent display surface located in the pilot’s outside view. The proposal would take advantage of advanced vision capabilities thereby achieving the NextGen goals of increasing access, efficiency, and throughput at many airports when low visibility is the limiting factor. Additionally, it would enable EFVS operations in reduced visibilities on a greater number of approach procedure types while maintaining an equivalent level of safety.”

AVIATION (U.S. TRUSTEES FOR NON-CITIZEN TRUSTORS AND BENEFICIARIES) / In major public meetings in 2012 and 2011, and in gathering responses to its notices in the Federal Register April 26, 2011 and February 9, 2012, the FAA has undertaken a major review of it, “policies and practices regarding the registration of aircraft in the United States involving U.S. citizen trustees and non-U.S. citizen trustors and beneficiaries”. Speaking very broadly, the “U.S. citizen trustees” are often banks and the “trustors and beneficiaries” are various non-U.S. business interests that own aircraft and who wish to have a United State, “N-registered”, status for such aircraft. The day before this post the FAA announced a major policy clarification which this blog will address this weekend in its “Comment” section. This is a major development in a very intense discussion between the FAA and the aviation community during the past two – now going on three – years.

“Notice of Policy Clarification for the Registration of Aircraft to U.S. Citizen Trustees in Situations Involving Non-U.S. Citizen Trustors and Beneficiaries.”

June 18, 2013. Notice of FAA Policy Clarification.

AVIATION (TYPE CERTIFICATES & SPECIAL CONDITIONS) / FAA Testimony to Congress – FAA Associate Administrator Margaret Gilligan testified before the Aviation Subcommittee of the U.S. House of Representatives Committee on Transportation and Infrastructure about the 787 lithium-ion battery system matter. This testimony in my view raised a critical question about the operative status of “DO-311, Minimum Operational Performance Standards for Rechargeable Lithium Battery Systems” as adopted in 2008. I have an e-mail inquiry pending with the FAA’s Deputy Assistant Administrator for Public Affairs on this and will follow up with readers when and as I receive a reply.

Testimony is available here.

AVIATION (REGULATION) / FAA proposes to amend certain airworthiness regulations for transport category airplanes based on recommendations from the Aviation Rulemaking Advisory Committee in order to eliminate certain regulatory differences between the airworthiness standards of the FAA and those of its European counterpart, the European Aviation Safety Agency (EASA) without affecting current industry design practices. These relate variously to standards-gust and maneuver load requirements.

“Harmonization of Airworthiness Standards-Gust and Maneuver Load Requirements.”

May 28, 2013. Notice of Proposed Rulemaking.

“Following an accident in which an airplane shed a large wing-mounted nacelle, the National Transportation Safety Board (NTSB) recommended that the FAA amend the design load requirements to consider multiple axis loads encountered during severe turbulence (http://www.ntsb.gov/doclib/recletters/1993/A93_136_141.pdf).”

“The FAA proposes to amend the airworthiness regulations described below. This action would harmonize Title 14, Code of Federal Regulations (14 CFR) part 25 requirements with the corresponding requirements in Book 1 of EASA Certification Specifications and Acceptable Means of Compliance for Large Aeroplanes (CS-25).

“The following proposals result from ARAC recommendations made to the FAA and EASA:

1. Amend § 25.331, “Symmetric maneuvering conditions;”

2. Amend § 25.341, “Gust and turbulence loads;”

3. Amend § 25.343, “Design fuel and oil loads;”

4. Amend § 25.345, “High lift devices;”

5. Amend § 25.361, “Engine torque;”

6. Add § 25.362, “Engine failure loads;”

7. Amend § 25.371, “Gyroscopic loads;”

8. Amend § 25.373, “Speed control devices;”

9. Amend § 25.391, “Control surface loads: General;”

10. Amend § 25.395, “Control system;”

11. Amend § 25.415, “Ground gust conditions;”

12. Amend § 25.1517, “Rough air speed, V RA;”

13. Remove appendix G, “Continuous Gust Design Criteria.”

AVIATION (FAA) / FAA Administrator Speech – National Air Traffic Controllers Association legislative conference: Addressed NextGen, ASIAS (FAA’s Aviation Safety Information Analysis and Sharing program), CISP (FAA’s confidential information share program), Performance Based Navigation, and budget issues. And general statement to House of Representatives Transportation and Infrastructure Committee for annual reauthorization.

Speech to air traffic controllers available here.

Testimony to House Committee available here

AVIATION (FAA & AIRPORT SLOTS) – FAA issues a “Notice of Extension to Order” that freezes in place current limits on numbers of operations at the three airports pending eventual promulgation of a “long-term rule at LaGuardia Airport (LGA), JFK, and Newark Liberty International Airport (EWR)” titled “a notice of proposed rulemaking for Slot Management and Transparency for LaGuardia Airport, John F. Kennedy International Airport, and Newark Liberty International Airport” – that has not yet been finalized (to put it mildly).

On May 15, 2013 the FAA issued a “Notice of Extension to Order” with respect to each of JFK (here), LGA (here) and EWR (here) New York City area airports.

Note well that some of the more astute economists have suggested that the free market might provide a better vehicle to allocate scarce airport resources in cities like New York through some sort of “congestion pricing”. But the free market’s use of a price mechanism to do that allocation is unpopular in some quarters – notably the Government Accountability Office’s determination that the FAA not be allowed to auction off such slots: “We conclude that FAA currently lacks authority to auction arrival and departure slots, and thus also lacks authority to retain and use auction proceeds.”