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.

REMARKS / After two major FAA/industry meetings and two years of formal comment-gathering, the FAA has finished its policy re-think about non-U.S. citizen trusts for ownership of aircraft on the U.S. registry (“N-registered”) as reflected in the Federal Register. Greg Cirillo, Esq. of Wiley Rein LLP has concise and excellent summary. Comment: Among various details, note that now the FAA will require filing not only of the relevant trust agreement to spell out the trustee / beneficiary relationship, but also any document that will “legally affect a relationship under that trust”.

Greg Cirillo, Esq. of Wiley Rein LLP write-up available here.

Link to announcement from this Blog’s New Rules and Developments available here.

Legal take-away:

Some more transparency on whatever is the “deal” between trustee and beneficiaries on control of the aircraft’s ownership and operation.

Practical take-away:

Requires meticulous reading of the entire notice of clarification.

Nothing revolutionary here.

AVIATION (U.S. DEPARTMENT OF TRANSPORTATION) / Announcement “that DOT has determined that the recently enacted Reducing Flight Delays Act of 2013 will allow the FAA to transfer sufficient funds to end employee furloughs and keep the 149 low activity contract towers originally slated for closure in June open for the remainder of fiscal year 2013. The FAA will also put $10 million towards reducing cuts and delays in core NextGen programs and will allocate approximately $11 million to partially restore the support of infrastructure in the national airspace system.”

See text here.

AVIATION (REGULATION GUIDANCE TASKS) / FAA assigned the Aviation Rulemaking Advisory Committee (ARAC) two new tasks for guidance to the FAA: (1) “transport airplane performance and handling characteristics”, and (2) “existing engine bird ingestion requirements”.

March 8, 2013, Notice of New Task Assignment for the Aviation Rulemaking Advisory Committee (ARAC).

“The FAA assigned ARAC a new task to review and assess the adequacy of certain portions of the existing engine bird ingestion requirements. This notice is to inform the public of this ARAC activity.

“The FAA established ARAC to provide advice and recommendations to the FAA Administrator on the FAA’s rulemaking activities with respect to aviation-related issues. This includes obtaining advice and recommendations on the FAA’s commitments to harmonize FAA Regulations with its partners in Europe and Canada.

“Amendment 33-20, adopted September 5, 2000, revised the bird ingestion type certification standards for aircraft turbine engines to better address the actual bird threat encountered in service. These requirements were adopted, in part, as a response to National Transportation Safety Board (NTSB) safety recommendation A-76-64. The NTSB recommended increasing the level of bird ingestion capability for aircraft engines. Amendment 33-23, adopted October 17, 2007, added requirements to address larger flocking birds, mass greater then 1.15 kg (2.5 pounds), since existing engine certification requirements did not specifically address the threat that these size birds, or their growing population, present to airplane operational safety. Medium bird ingestion criteria for small engines were established consistent with corresponding criteria for medium and large engines, which is freedom from multiengine power loss events at a rate of 1E-8 per aircraft cycle. The objective of the ARAC task is to evaluate whether the requirements for small and medium bird core ingestion and the large flocking bird requirements for engines with 1.35m [2] -2.5m [2] inlet areas should be revised.

“Review and assess the standards and advisory material for bird ingestion requirements as follows:

1. Evaluate the core ingestion element of small and medium bird requirements to determine if the intended safety objective of the current rule is adequate. Consider the threat from large flocking bird species in this assessment. Identify any deficiencies in the current rule, and provide the FAA with recommendations for changes as appropriate.

2. Evaluate large flocking bird requirements, to determine the need for new large flocking bird requirements, or advisory material, or both, for Class D engines (1.35m [2] -2.5m [2] inlet areas). Identify any deficiencies of the current rule, and provide the FAA with recommendations for changes as appropriate.

3. Review and consider the following related National Transportation Safety Board (NTSB) safety recommendations when evaluating items 1 and 2 above:

a. “A-10-64: Modify the 14 Code of Federal Regulations § 33.76(c) small and medium flocking bird certification test standard to require that the test be conducted using the lowest expected fan speed, instead of 100-percent fan speed, for the minimum climb rate.”

b. “A-10-65: During the bird-ingestion rulemaking database (BRDB) working group`s reevaluation of the current engine bird-ingestion certification regulations, specifically reevaluate the 14 Code of Federal Regulations § 33.76(d) large flocking bird certification test standards to determine whether they should: (1) Apply to engines with an inlet area of less than 3,875 square inches and (2) Include a requirement for engine core ingestion. If the BRDB working group`s reevaluation determines that such requirements are needed, incorporate them into 14 CFR § 33.76(d) and require that newly certificated engines be designed and tested to these requirements.”

4. Define an industry led process for periodic update and review of engine bird ingestion data, such that industry and the authorities can maintain an awareness of the bird threat experienced in service.

“Tasks 1 through 4 above should consider the Aerospace Industries Association engine bird ingestion database recently updated in coordination with FAA and the European Aviation Safety Agency. That database update was in response to the US Air Flight 1549 Hudson River accident in January 2009 and related NTSB safety recommendations.

“The final ARAC report should include a summary of the overall work scope, conclusions and rationale for all recommendations related to the above tasks.

“Schedule: Required completion is no later than March 31, 2015.”

March 8, 2013, Notice of New Task Assignment for the Aviation Rulemaking Advisory Committee (ARAC).

“The FAA assigned ARAC a new task to prioritize potential topic areas for development of new or revised requirements and guidance material for airplane performance and handling characteristics in new transport category airplanes. The output of this task is intended to support FAA planning for subsequent ARAC taskings in these topic areas. This notice is to inform the public of this ARAC activity.

“The FAA established ARAC to provide advice and recommendations to the FAA Administrator on the FAA’s rulemaking activities with respect to aviation-related issues. This includes obtaining advice and recommendations on the FAA’s commitments to harmonize FAA regulations with its partners in Europe, Canada, and Brazil; in this instance, on airplane performance and handling characteristics standards. ARAC will address this task under the Transport Airplane and Engine (TAE) Subcommittee, and will reestablish the Flight Test Harmonization Working Group (FTHWG) to assist in completion of this task.

The FAA has established regulations and policy in the areas of airplane performance and handling characteristics. However, existing standards do not adequately address airplane designs using fly-by-wire technology. Additionally, there are a number of issues, such as several items in the areas of takeoff and landing performance and flying qualities that may not be adequately addressed by the existing airworthiness requirements and guidance material. Finally, there are cases where guidance information provided by the airworthiness authorities is not harmonized, sometimes leading to different compliance findings.

“The FAA tasked ARAC to consider several areas within the airplane performance and handling qualities requirements of the 14 CFR part 25 airworthiness standards and guidance for possible revision. The task includes prioritizing the list of topic areas provided in this notice based on prioritization criteria established by the FTHWG. The prioritization criteria should consider harmonization of regulatory requirements and associated guidance material for airworthiness certification of airplane designs. “Recommendations may result in subsequent ARAC taskings for standards recommendations in follow-on phases. ARAC may also recommend additional topics in the general area of airplane performance and handling qualities that are not on the list provided in this notice.

“The working group will provide a draft report to ARAC recommending focus areas and work plans to address those areas the FTHWG identified as high priorities for airworthiness standards development relative to new airplane designs. This report will provide the rationale for the priority recommended as well as identify those items for which coordination with other working groups or experts outside the FTHWG may be needed. The report will also include a proposed schedule for accomplishment of the plan, including whether multiple topics can be worked simultaneously. If there is disagreement within the working group, those items should be documented, including the rationale from each party and the reasons for the disagreement.

“The following subject areas should be considered:

“1. Fly-by-wire (FBW) Flight Controls. Regulatory requirements and associated guidance material for airworthiness certification of airplane designs using FBW technology to obviate longstanding, repetitively used FBW special conditions. Specific areas include:

a. Applicability/adaptation of Amendment 25-121 airplane performance and handling characteristics in icing conditions requirements

b. Design maneuver requirements,*

c. Design dive speed,*

d. Side stick controls,*

e. Flight envelope protection, and *

f. Interaction of airplane systems and structure.*

*Note: These items should be considered for coordination with other working groups.

“2. Takeoff and Landing Performance. Regulatory requirements and associated guidance material for airworthiness certification in the following areas listed below. (Note: This topic area excludes items addressed by the Takeoff and Landing Performance Assessment Aviation Rulemaking Committee.)

a. Flight test methods used to determine maximum tailwind and crosswind capability. Additionally, for crosswind testing, better define intended operational use of demonstrated maximum steady and gusting crosswind performance.

b. Wet runway stopping performance. Recent landing overruns on wet runways have raised questions regarding current wet runway stopping performance requirements and methods. Analyses indicate that the braking coefficient of friction in each case was significantly lower than expected for a wet runway (i.e., lower than the level specified in FAA regulations). Consideration should also be given to the scheduling of landing performance on wet porous friction course and grooved runway surfaces. Recommendations may include the need for additional data gathering, analysis, and possible rulemaking.

c. Go-around performance, specifically height lost in executing a go-around. While airplanes may be able to demonstrate the climb gradient capability prescribed in 14 CFR/European Aviation Safety Agency (EASA) Certification Specification (CS) 25.121, it may not be able to achieve it quickly enough, particularly when executing a go-around close to the ground.

d. Performance standards and guidance regarding landing in abnormal configurations.

e. Guidance regarding the function and use of the amber band on airspeed tapes. Manufacturers’ philosophies differ regarding the meaning of the amber band in an airspeed tape display, as do U.S. and European regulatory authorities’ policies regarding acceptance of target airspeeds within the amber band.

f. Guidance on piloting procedures used to evaluate airplane tail clearance during certification flight tests for takeoff performance.

g. Landing distance performance for autoland and landing distance performance using heads-up-displays (HUD). Use of autoland or HUD may invalidate landing distance performance determined for compliance to 14 CFR/CS 25.125.

h. Steep approach landing performance. Current airplane certification standards are not harmonized among the U.S., Canadian, Brazilian, and European airworthiness authorities.

i. Narrow runway operations. Current airplane certification standards do not identify minimum runway widths for which the standards apply.

j. Reduced and derated takeoff thrust procedures. Updates to existing guidance material may be appropriate to limit the number of derates permitted for a specific airframe/engine combination.

k. Guidance material for pressure error measurement during takeoff until out of ground effect to ensure proper data reduction for calculation of takeoff distance performance.

l. Guidance material addressing the adverse effects on stall speed in ground effect.

“3. Handling Characteristics. Regulatory requirements and associated guidance material for airworthiness certification in the following areas:

“a. Guidance material for assessing handling qualities. Advisory Circular 25-7C, “Flight Test Guide for Certification of Transport Category Airplanes,” provides an FAA Handling Quality Rating Method (HQRM) that is intended to provide a systematic way of determining appropriate minimum handling qualities requirements and evaluating those handling qualities for failure conditions affecting an airplane’s flying qualities. The FAA handling quality rating system is not universally accepted within industry, nor is it accepted by EASA.

“b. Guidance for assessing susceptibility to pilot-induced oscillations/airplane-pilot coupling (PIO/APC). Guidance provided in AC 25-7C for evaluating PIO/APC is also not well accepted by airplane manufacturers, is not harmonized with EASA, and has been superseded to some extent in recent certification programs. Modified guidance is needed to both simplify and standardize the methods for evaluating an airplane’s susceptibility to PIO/APC.”

COMMERCIAL (BUSINESS TORT) / Plaintiff aircraft purchaser made out a case of negligent misrepresentation under Missouri law against defendant overhaul provider “for failing to log or disclose previous fuel tank repairs”. This was despite absence of any direct dealings between plaintiff aircraft purchaser and defendant overhaul provider. Rationale: Overhaul provider “had a public duty created by federal aviation regulations to disclose the repairs”.

Dannix Painting, LLC v. Sherwin-Williams Co., 2012 WL 6013217 (U.S. District Court, E.D. Mo., December 3, 2012. Free copy available here.

Cited to B.L. Jet Sales, Inc. v. Alton Packaging Corp., 724 S.W.2d 669 (Missouri Court of Appeals, January 6, 1987). Free copy available here.

Who is affected? Purchasers of aeronautical goods that are subject to the Federal Aviation Regulations (14 Code of Federal Regulations); service providers obligated to make records of service on such goods under Federal Aviation Regulations. Continue reading