We're back! Our last issue was published in June 1994. We publish this Newsletter periodically, and on a time-permitting basis, to apprise clients and colleagues of recent developments in areas in which we are primarily engaged--FAA/NTSB/DOT, certification and enforcement, aircraft and equipment acquisition, sales and leasing, and airports matters. This issue was supposed to have gone to press in December 1994/January 1995. However, our workload over the past several months has prevented this. Now that we're back, we hope that you will again find AVIALEX® ® interesting and informative. We would also appreciate receiving your feedback with any suggestions or comments. If you know of anyone who might be interested in receiving copies, please FAX their names and addresses to us. You may reproduce this Newsletter or use any information from it so long as you give us credit for same (please see our copyright notice below).
WHILE WE'VE BEEN AWAY...
Recodification of Federal Aviation Act
Just when we had almost committed the Federal Aviation Act to memory, Congress recodified it, as well as most federal transportation law. H.R. 1758 was signed into law last July (Pub. L. 103-272). It is now called "Title 49, United States Code (Transportation)". Gone are not only the Federal Aviation Act, but other familiar "friends"--the Independent Safety Board Act of 1974, Hazardous Materials Transportation Act, Airport and Airway Improvement Act of 1982.
Although there are purportedly no substantive changes from the former statutes, we'll be the first to confess that it's still more than a little confusing. Our colleagues in industry, private practice and even at the FAA are encountering this as well. We've nearly worn out our cross-reference table. If you don't have one and would like one, please drop us a line.
Public Aircraft
On April 23, federal legislation requiring that any aircraft operated by a U.S. governmental agency (federal, state, county or local), that carries passengers or obtains reimbursement from sources other than its own treasury, must comply with all Federal Aviation Regulations (FARs). Gone, for all intents and purposes, is the long-standing "public aircraft exemption" under which aircraft operated by public agencies were excluded from compliance with most FAR's. An agency can retain its public aircraft exemption only if each person aboard (crewmember or passenger) is necessary to the aerial mission. Public aircraft can perform certain services and receive payment under extraordinary circumstances where the need for the aircraft is imminent, the requesting and paying party is a governmental entity and no commercial operator is available.
In addition to the FAR-compliance requirements, government-owned and -operated aircraft now come within the purview of the accident investigation authority of the National Transportation Safety Board (NTSB). The NTSB will investigate accidents involving these aircraft, make probable cause findings and issue recommendations. Government aircraft operators will now be subject to the same accident reporting requirements as civilian operators.
FAA/DOT Reorganizations
Last December, the FAA Administrator announced a reorganization of the agency, intending to streamline the agency's bureaucracy. The FAA's six basic functions--air traffic control, research and acquisitions, regulation and certification, airports, security and administration now each fall under an associate administrator who reports directly to the Administrator. For you history buffs, the FAA "streamlining" appears to be remarkably similar to the agency structure that existed some 20-25 years ago.
A couple of months ago, Secretary of Transportation Frederico Pena proposed reorganization of the FAA's parent, the Department of Transportation. There would only be three agencies within that Department--the FAA, responsible for aviation safety, regulation and certification (and maybe ATC, if it is not spun off into an independent government corporation), Coast Guard having authority over all maritime navigation and safety, and a new Intermodal Transportation Administration, having authority over highways and rail. Where this goes remains to be seen.
If the FAA is truly being streamlined, why keep a layer of bureaucracy on top of it? In fact, the industry and aviation safety would be better served by an independent de-politicized agency.
Alcohol Testing
Effective the first of this year, the FAA implemented alcohol-screening policies, similar to existing drug-testing procedures for those employees performing safety-sensitive functions (e.g., pilots, flight engineers, maintenance personnel). Alcohol testing must be accomplished with breath tests and blood testing is not permitted. Those covered include Part 135 and 121 operators and Part 145 repair stations providing services to Part 135 and 121 operators. While the FAA-mandated policies included pre-employment screening as well as random and periodic screening, shortly before this Newsletter went to press, Secretary Pena announced that the Department would dispense with the requirement for pre-employment alcohol screening.
WHILE WE'RE ON THE SUBJECT OF DRUG TESTING...
Hopefully, the alcohol screening policies will be implemented in a more deliberate and sensible manner than were the drug testing policies several years back. As it turns out, there is cause to question whether drug testing is even essential. Using the FAA's own figures, it appears that for four consecutive years, less than one percent of the aviation industry's employees and job applicants tested positive for drugs. The fact of the matter is that drug use is virtually non-existent among the aviation population.
Perhaps the following horror story will illustrate this point. In the interests of preserving privacy and confidentiality, the names of thepersons and companies involved shall remain nameless.
Several months ago, we were retained by a professional pilot who had been flying for over 20 years in Part 121, 135 and 137 operations. The pilot had been conditionally hired by a Part 121 air carrier, subject to completion of training and drug screening. Prior to reporting for training, the pilot quit his well-paid captain position with a Part 135 on-demand jet charter operator. The pilot's training was going along well. One afternoon during his second week of training, and after the pilot and his fellow trainees had returned from lunch, the carrier's personnel manager announced that drug screening would take place momentarily. The 20-or-so member class reported to a local hotel room where they met the laboratory technician and personnel manager and took turns using the "blue room". Considering the number of people and the nature of activity, the room was nothing less than chaotic.
The personnel manager had the best of intentions. She tried to make the class, which had come from all over the country as comfortable as possible, and took it upon herself to "cater" the training sessions, bringing in coffee, donuts and various other baked goods (including poppy seed muffins). Notwithstanding his 20 or so years of professional flying, our client was somewhat naive when it came to poppy seed muffins. He recalled never having had one before, at least not by name, and didn't know how they looked or tasted. To make a long story short, the muffins that he consumed during his training a few hours prior to the collection contained poppy seeds. To compound matters, his dinner the evening before and his lunch the day of the collection included foods and sauces that have been known to trigger false positives for opiates.
As you can probably imagine, the laboratory report indicated a borderline positive for opiates. Test results for all other drugs were negative. (The strongest medication our client ever took was aspirin, and he did not drink alcohol.) When the carrier's Medical Review Officer (MRO) received this report, he telephoned the pilot, who was then some 2,000 miles away. He advised the pilot of the positive test and asked him if he used any drugs, to which the pilot responded in the negative. The MRO conceded that it must have been a mistake and told the pilot that he would have the remainder of the split sample (from the same collection) tested at another lab. The MRO made no inquiry as to what, if anything, the pilot had eaten or otherwise consumed, and did not suggest that the pilot present himself at the MRO's offices for consultation, evaluation or examination.
The second sample also tested borderline positive. This time, the MRO made no effort to contact or communicate with the pilot. Instead, he called the personnel manager, advised that the pilot had tested positive again and was an apparent drug user. Again, no consultation, evaluation or examination was suggested by the MRO. The pilot was called out of training and was given a one-way ticket home.
The MRO then wrote to the Federal Air Surgeon advising of these positive findings. The Federal Air Surgeon thereupon sent the pilot written notification that his eligibility for a first class airman medical certificate could not be established by reason of his "history of drug abuse", cautioned him against exercising the privileges of his airman certificate, and requested that the pilot submit to a complete psychological and psychiatric evaluation.
The pilot was now out of his new job, couldn't go back to his former employment, and the status of his medical was being questioned by the FAA, potentially leading up to the institution of an enforcement action!
We had the pilot evaluated by a well-qualified psychiatrist (to whom we and our client remain gratefully indebted) who was intimately familiar with the FAA's drug screening policies. Our psychiatrist wrote a scathing letter to the Federal Air Surgeon citing numerous improprieties by the MRO. The Federal Air Surgeon agreed. Despite this, the FAA could not clear the pilot without the approval of the FAA's own Drug Program Office. The Drug Program Office indicated that it would not grant its approval until such time as it decided whether to initiate enforcement action against the carrier and that enforcement process had been concluded--in other words, years! In essence, what was purely a medical call was not going to be resolved by the FAA's medical experts, but rather by the Drug Program Office. The medical call was going to be subservient to a policy call and the human issues were less important than preserving the integrity of the FAA's drug screening policies and bureaucracy.
Don't get me wrong. The people in the Federal Air Surgeon's Office and in the Drug Program Office were concerned over the pilot's plight and were responsive. They recommended the psychiatrist and did give this matter a high priority--even personally serving the carrier with documents rather than mailing them.
We finally did resolve this matter, to the satisfaction of my client, the FAA, and even the carrier, and it didn't take years--but it did take several months of my client's life, during which he was unable to be gainfully employed in his chosen profession. It wasn't inexpensive, either. The pilot is now employed by that carrier, his seniority has been restored, the FAA and the carrier have resolved their mutual concerns, and, best of all, the MRO is no longer an MRO.
CAVEAT ON SELF DISCLOSURE (...or be careful what you give the Feds...)
Over the past several months, there has been a lot of media attention concerning air safety issues, particularly those involving regional airlines, on-demand charter operators and helicopter tour operators (i.e., about 80% of our clientele). Long before these pieces were aired, the media literally barraged the FAA with Freedom of Information Act (FOIA) requests for records of enforcement actions taken by the FAA against these carriers and operators. While it varied from FAA Region to Region, most of the Regional legal offices, aware that we were or had been counsel of record, gave us a "heads up" and permitted us to submit objections to the release of this information.
While we did submit objections to the release of certain information, no amount of objecting can prevent the government from releasing information which it deems releasable under FOIA or each department or agency's implementing regulations (FAA and DOT implementing regulations are found in 49 C.F.R. Part 7). The government's position has long been "when in doubt, give it out."
While active FAA enforcement files are "records compiled for law enforcement purposes" and are not releasable, the FAA has consistently taken the position that closed files are releasable. The problem for the person, firm or corporation whose record is being requested is determining what is in that closed file and should the closed file be releasable in its entirety?
Self-disclosures made pursuant to Advisory Circular (AC) 120-56 [UPDATE:
See Avialex Volume 4]
. usually result in the FAA's generation of an Enforcement Investigative Report (EIR), and then closing it upon the certificate holder's initiation of appropriate corrective actions to the FAA's satisfaction. While no action may have been formally instituted by the FAA, this EIR, together with the disclosures and submissions of the certificate holder, will constitute a closed record, which under the FAA's guidelines, is releasable. The bottom line is this: WHEN YOU SELF-DISCLOSE TO THE FAA, ANTICIPATE THAT WHATEVER YOU SAY, AND WHATEVER YOU SUBMIT (manuals, records, employee information, internal memoranda, and the like) WILL EVENTUALLY BE RELEASABLE AND MADE AVAILABLE TO THE PUBLIC!
We have some recommendations. (We've just started doing this and as we go to press, we cannot vouch for their success, but we think that they're worth a try).
First, when furnishing the FAA with copies of manuals, either in connection with initial certification, manual revisions, responding to LOI's or making self-disclosures, do it in writing. In your transmittal, specifically state:
These submissions are proprietary. They contain procedures, processes, methods and ideas which are trade secrets and commercial information; they are evolutionary in nature, reflecting the certificate holder's unique operating experience and the combined years of experience and specialized training that its management and personnel have undergone, and numerous man-hours which have been expended in preparing these manuals, and all revisions thereto. Considering this substantial investment, the release of these manuals would certainly cause substantial harm to the certificate holder's present or future competitive position. Objection is made to the release of these submissions or to any other document, material or information that references or describes any of these submissions, including but not limited to manuals or any of the procedures, processes, methods or ideas embodied therein. The requirements for manuals, and the contents thereof, are contained in FAR's which clearly contemplate that the manual is to be prepared solely for the use of that certificate holder and is to be made available only to the certificate holder's own personnel and to representatives of the FAA. To the extent that any certificate holder envisions that the FAA would make available for public release and dissemination copies of those manuals will undoubtedly have a chilling effect. Accordingly, confidential treatment of this submission is requested under 49 C.F.R. 7.69 and under 49 U.S.C. Sec. 40115.
Second, if you are identifying employees or former employees of your organization, request confidential treatment of same under 49 C.F.R. 7.73, as disclosure could result in an unwarranted invasion of personal privacy.
Third, assert that the continued viability and success of the FAA's self disclosure program requires that certificate holders be able to report safety concerns and possible discrepancies without fear that these reports will become matters of public record or otherwise disseminated to the public. Disclosure of reported matters will have a chilling effect and undermine the integrity of the self-disclosure program.
We can't guaranty that the FAA will adhere to these conditions, but it may give them reason to pause or at least consult with you and afford you the opportunity to object prior to releasing the information.
WHATEVER HAPPENED TO 'REGULATION BY NEGOTIATION'?
Remember that concept? That's where the FAA pledged that it would take a cooperative approach with industry and solicit industry input prior to promulgating regulations.
We haven't heard much of this recently, and based upon the FAA's recent promulgation of Special Federal Aviation Regulation (SFAR) 71, it appears that 'regulation by negotiation' is a concept whose time has, unfortunately, run out.
SFAR 71, which was promulgated on an emergency basis as a final rule on September 26, 1994, and made effective 30 days later, imposes stringent operational and flight rules upon Hawaiian air tour operators. Its requirements are four-fold:
- Requires flotation equipment for non-amphibious single-engine air tour helicopters or, alternatively, requires that each person on board wear approved flotation devices;
- Requires that prior to departure, each helicopter tour operator, through its pilot in command, complete a performance plan for the flight;
- Requires that pilots in command operate helicopters within certain operating limitations (i.e., within the height/velocity envelope); and
- Imposes minimum flight altitudes and stand-off distances of 1500 feet (AGL).
There were certainly no objections voiced by the aviation community with respect to the flotation equipment/devices requirement. Although the requirements for the completion of a performance plan and operations of helicopters within certain operating limitations were not necessary (inasmuch as these requirements are already imposed by FAR's 91.3(a), 91.9, 91.13, and 91.103), there was no objection voiced with respect to these requirements.
However, the minimum altitudes and stand-off distances hit the proverbial nerve. It is also undermining the economic viability and survivability of the Hawaiian air tour industry.
In essence, this rule is not a safety regulation, but a noise regulation . While the FAA indicated that the promulgation of an emergency rule was necessary "because of an escalation of air tour accidents", the rule was an outgrowth of the four public meetings conducted in Hawaii in January 1994 at which the overwhelming concerns voiced were over noise issues. As the FAA states in the SFAR preamble:
In January 1994, the FAA held four public meetings in Hawaii to investigate complaints regarding flight safety, aircraft noise, and possible intrusive flights of helicopters. While the vast majority of the commenters addressed the noise issue , some commenters did raise safety issues. ( emphasis added ).
This rule is not necessary. As mentioned earlier, the rule's requirements "imposing" a helicopter performance plan and operations within the height/velocity curve already exist in the FAR's. Moreover, existing FAR's impose minimum safe altitude requirements (please see FAR 91.119). While the existing FAR does not prescribe a set AGL altitude for helicopters, it does require that the aircraft be operated at an altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons or property on the surface ( 91.119(a)) and without hazard to persons or property on the surface ( 91.119(d)). Aircraft other than helicopters are governed by 91.119(b) and (c), which impose fixed minimum altitudes and distances from persons or property.
There is substantial doubt that an emergency truly existed which justified the FAA's deviation from the requirements of the Administrative Procedure Act. That Act requires that unless an emergency exists, an agency, prior to finalizing a rule or regulation, must publish a notice of the proposed rule and afford the public the opportunity to comment on same. In this case, the rule was promulgated prior to the public, as well as the tour operators affected by the rule, being afforded the opportunity to comment.
There were several questions as to the factual findings and assumptions made by the FAA which serve as the basis for (1) promulgation of this rule and (2) promulgation of this rule on an emergency basis. As but a few examples:
Number of Operations
The FAA concluded that 400,000 passengers are carried annually in Hawaiian air tours. However, the number is actually closer to 600,000. The numbers of passengers carried safely, and flights without incident, are critical to the safety data analysis. Naturally, the greater numbers of passengers/flights without incident derogates the FAA's determination that a safety emergency exists.
Accident Data
The FAA concluded: During the 9-year period between 1982 and 991, there were eight fatal accidents with 24 fatalities. The accident data shows an escalation of fatal accidents during the 3-year period between 1991 and 1994. During this time there were five fatal accidents with 24 fatalities.
Other than the FAA's selectively picking a few accident examples, the SFAR is devoid of any meaningful accident data or any showing that these "statistics" are in any way relevant. There was no "common thread" indicating that had the SFAR been in effect, these accidents would have been prevented. Moreover, for this accident/fatality record to have any meaning, it would have to be put in a proper perspective, for instance:
- this accident/fatality rate per flight hour/passengers carried (Hawaiian air tour operators only);
- accident/fatality rate per flight hour/passengers carried (U.S.-wide air tour operators);
- accident/fatality rate per flight hour/passengers carried (U.S.-wide helicopter operations); and
- accident/fatality rate per flight hour/passengers carried (U.S.-wide general aviation).
Despite the FAA's claims of an "escalation", it appears that there were long periods in which no accidents had occurred. The FAA ignored the fact that there were no accidents in the 19-month period between September 1982 and April 1984; the 10-month period between May 1986 and March 1987; the 13-month period between April 1987 and May 1988; the one-year period between May 1988 and May 1989; the 21-month period between August 1989 and May 1991 (all of 1990 was accident-free); and 13-month period between January 1993 and February 1994.
Failure of Voluntary Measures
Citing the "failure" of voluntary measures taken by the Hawaiian operators themselves, the FAA-issued Handbook Bulletin No. 92-01 and the FAA's extensive inspection and surveillance program, the FAA concluded:
Despite the voluntary measures, the cooperation of the Hawaii air tour operators, and the FAA's inspections, the accident data show that additional measures are necessary to ensure safe air tour operations in Hawaii. The current regulatory scheme is not comprehensive enough to ensure the safety of all air tour operations in Hawaii.
Yet it was during the 3-year period of the FAA's "extensive inspection and surveillance program" that the FAA claimed that the accident/fatality rate escalated, which calls into question the quality and effectiveness of the FAA's inspection and surveillance program
Operations in IMC
As justification for imposing the altitude restrictions contained in the SFAR, the FAA asserts that one major causative factor in the evaluation of air tour accidents is "flying into bad weather". The 1500 foot restriction will not eliminate this problem. In fact, given the local climactic conditions in the Islands, the altitude restriction may exacerbate any problem that has been perceived to exist. It will virtually force operators to operate either at the same altitudes as scattered to broken clouds or "on top". Moreover, this may increase, rather than reduce the potential for midair collisions. The NTSB has not only agreed with this, but has flatly stated that the FAA produced no specific safety - related data supporting the altitude restriction.
Economic Considerations
The FAA acknowledged that the bulk of Hawaiian air tour operators are small entities and that the SFAR will have a significant economic impact upon them, but nonetheless underestimated the actual costs.
Enforcement
Since the SFAR became effective, we have been defending several FAA enforcement cases against pilots and operators. The bulk of these cases involve flights in which the aircraft has had to deviate from the minimum altitude restriction to avoid unforeseen, unforecast weather or avoid conflicting traffic. Other cases involve what appears to be the FAA's clear misunderstanding as to which operations the SFAR actually applies. These cases remain pending as we go to press. However, regardless of the outcome, the costs of defense for the pilots and operators has not been insignificant.
And now for the really bad news...
The FAA is now considering similar regulations for Alaska air tour operators as well as for tour operators in other locales within the United States.
ON THE SUBJECT OF RULE MAKING...
As we go to press, the FAA Administrator has announced that the FAA will be conducting a top-to-bottom review of its regulations and certification procedures. The review will be called "Challenge 2000". Despite shrinking federal budgets, the FAA intends to hire outside consultants to assist in this review.
No, we haven't been asked....
SURFIN' THE NET (and a Word from our Sponsor...)
Following up a topic that appeared in Volume 2 of AVIALEX ®, on communicating with clients, just a reminder that in addition to 24-hour telephone coverage and/or voicemail and 2 full-time FAX machines, we can be reached via E-Mail at: law@avialex.com
Additionally, upon request we will furnish our clients with nationwide pager numbers so that we can respond to any emergency needs.
In the interim, have a good summer. We've already started publication of Volume 4, and we hope that it won't be another year in the making.
