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NATA Comments on OSHA Regulations For Aircraft Cabin Crewmembers

Mon, 04 Feb 2013 11:02:00 GMT

January 22, 2013

Docket Operations M-30

U.S. Department of Transportation

1200 New Jersey Avenue, SE

Room W12-140

West Building Ground Floor

Washington, DC 20590-0001

Delivered electronically via www.regulations.gov

RE: Docket No. FAA-2012-0953; Policy Statement on Occupational Safety and Health Standards for Aircraft Cabin Crewmembers

NATA appreciates the opportunity to comment on behalf of our members operating aircraft that are impacted by this proposed action. Following our review of the proposed policy statement, we conclude that the intended course of action, i.e. imposing Occupational Safety and Health Administration (OSHA) regulations for any person whose work environment includes duties within an aircraft cabin while the aircraft is in operation, will impact our members conducting passenger and cargo flights in a commercial on-demand capacity and noncommercial flights under the operational control of an aircraft owner[1].

We conclude after our evaluation that the proposed course of action is ill-advised with respect to both commercial and noncommercial aircraft operations in that it fails to consider the safety ramifications this drastic shift could create and that it remains extremely unclear in the how the Federal Aviation Administration (FAA) proposes to develop and enact these new requirements.

The lack of clarity makes it difficult to determine the true purpose behind the draft statement. If this policy is a document to explain that the FAA intends to move forward collaboratively with OSHA but that no actual changes to current practices are intended, NATA expects that prior to making any changes the FAA will evaluate and give public hearing to the issues articulated within these comments. If in fact this draft policy statement is actionable and intended to modify, replace or nullify the FAA’s 1975 notice wherein the agency asserted its sole authority over the aircraft cabin environment, then FAA cannot proceed until a full and proper rulemaking occurs.

Absent statements to the contrary, NATA must presume that the draft policy statement is indeed actionable and we are especially concerned that the proposed policy does not indicate how OSHA and the FAA will determine which OSHA standards may or may not have safety implications and whether such determinations will include industry representation from operators.

FAA Should Retain Primacy Role

While we respect the statutory obligation the FAA has under Section 829 of the FAA Modernization and Reform Act of 2012 (Pub. Law 112-95), it is still well within the purview of the FAA to retain sole oversight for the in-aircraft environment rather than cede oversight and enforcement responsibilities to OSHA. OSHA does not have the appropriate skills to ensure that its regulations, policies and guidance do not have adverse airworthiness or operational safety implications for aircraft operations. Any OSHA activity will require substantial on-going interaction with the FAA to prevent such negative consequences and is more appropriately addressed by the FAA consulting with OSHA in the development of regulations promulgated by the FAA rather than what the FAA appears to propose; i.e. that the OSHA will take the lead in regulating.

This is supported by the FAA assertion in the draft policy statement that “[o]n the other hand, existing FAA regulations address the same hazards addressed by OSHA's sanitation standards, so those OSHA standards would not apply on aircraft.” The FAA is clear that when it has promulgated rules addressing an existing OSHA standard the FAA rules are adequate and there is no need to change course and apply the OSHA rules instead. Our recommendation is that the FAA continue on this course of pursuing its own rulemaking as appropriate rather than engage in a complex process to determine the necessity of OSHA rules and how to adapt them for environments that were not previously taken into consideration.

Jurisdictional Confusion

NATA is concerned that the shared jurisdiction policy described by the FAA is ripe for confusion and contradiction between FAA, OSHA and OSHA-approved state programs. As articulated in the FAA/OSHA Aviation Safety and Health Team Report published in December 2000 (hereafter referred to as the 2000 Report)[2], the OSHA Act encourages states to develop and operate their own job safety and health programs. This is in stark contrast to aviation oversight wherein no state may regulate aircraft operations and airworthiness standards. According to the OSHA website, there are now 26 states that operate OSHA-approved plans. The 2000 Report explains that while states may not impose standards that are less than the equivalent OSHA rule they may impose more stringent standards. When and if the FAA permits an OSHA requirement to apply to an aircraft cabin and a more stringent state OSHA regulation exists, it is unclear who will evaluate the state rule to determine that it is not in conflict with FAA safety requirements and ensure that compliance is not necessary in such cases.

The 2000 Report notes that these areas require evaluation:

There is a need to determine the effect that state jurisdiction and state plans (pursuant to 29 U.S.C. § 667) would have on FAA’s ability to assure aviation safety.
There is a need to determine the effect that state jurisdiction and state plans (pursuant to 29 U.S.C. § 667) would have on OSHA’s ability to enforce standards applicable on aircraft that operate in, and over, a number of States.

While this review was submitted in 2000, NATA is concerned that the draft policy explains only that “OSHA is also able to initiate [emphasis added] a process to ensure that airlines will not be subject to multiple different sets of rules as they fly into and out of different states.” Our concern with this statement is two-fold; first, stating that OSHA is “able” to do this as opposed to OSHA “is” creating this process implies that it is not necessarily deemed as a mandatory and essential item, and, second, it seems that OSHA has not yet even begun such a process despite the looming intended application of OSHA rules. These matters need to reach a final resolution prior to any action by the FAA to impose OSHA rules on aircraft cabins.

A second jurisdictional issue relates to how any applicable OSHA standards might apply to international flight operations. Again, the 2000 Report noted this item; the draft policy statement does not address it. Given the significant number of international flight operations conducted, it is imperative to resolve such issues prior to the imposition of the new requirements.

Rulemaking Issues

The FAA properly asserted its authority over the aircraft cabin environment in 1975, and OSHA promulgated every subsequent rule with an understanding that it did not apply to aircraft cabins. While the draft statement is presented as policy-based, it is de facto rulemaking. It is dangerous and disconcerting for the FAA and OSHA to presume to impose regulations in such a way as to avert every legal requirement imposed on rulemaking. The FAA must evaluate and determine that new standards are necessary in accordance with required rulemaking procedures. Any change to the long-standing policy of the FAA that they are solely empowered to create and enforce regulations regarding aircraft operation will result in operational and financial impacts to each operator that the formal rulemaking must address.

The 2000 Report noted these concerns:

There is a need to determine whether it would be necessary for the respective agencies to engage in notice and comment rulemaking prior to applying the enumerated OSHA standards or regulations to employees on aircraft in operation, and, if so, the manner in which to most expeditiously promulgate standards that are applicable to aircraft in operation.
There is a need to determine the manner in which OSHA and FAA would cooperate to assure that standards applicable to employees on aircraft in operation (other than flight deck crew), which may be promulgated at a future date, would not be written or enforced in a manner that could compromise the safe operation of an aircraft.

Should the FAA follow the path articulated in the draft policy statement, a population of affected entities will hereafter have regulatory compliance responsibilities that do not presently exist. A proper rulemaking including a review of the need for these new regulations, a cost/benefit evaluation, and regulatory flexibility determination (to include a small business impact assessment) and notice and comment opportunities for the affected aircraft operators is required.

The FAA did not provide the parties that are now subject to imminent regulatory obligations any opportunity to offer constructive comments on these otherwise required analyses or to recommend revisions to the regulations. Yet it is unclear from the draft policy whether any formal rulemaking processes are planned.

Because, with respect to the aircraft cabin environment, the OSHA regulations were developed absent compliance with the rules governing creation of new regulations, NATA expects that the FAA and/or OSHA will fully meet those rulemaking obligations prior to the application of new or existing regulations on our members and the aviation industry at large.

In addition to the overall need for rulemaking, NATA has identified a specific shortcoming that necessitates rulemaking: defining “aircraft cabin crewmember.” The aviation industry has many positions other than “flight attendant” that may work in an aircraft cabin. These include cargo handlers, medical personnel, supernumeraries, and, in the case of certain aircraft, evacuation crewmembers (as required by the FAA aircraft Type Certificate Data Sheet). While the FAA defines “crewmember” in Part 1 of its regulations, the agency does not define the term “Aircraft Cabin Crewmember.” This term requires formal regulatory definition to determine applicability of any proposed policy or regulations thereof.

Inspection and Enforcement

NATA is also troubled by the limited information on enforcement inspections. That the entirety of the discussion regarding inspection and enforcement consumes only one sentences is concerning. The draft policy states, “OSHA anticipates that it will respond to and investigate complaints or referrals without a need for any inspection of aircraft in operation.” This statement does not preclude OSHA (or a state-based OSHA entity) from conducting inspections of aircraft in operation, it merely conveys that it is not anticipated at this time. The policy is silent on the power imparted to OSHA inspectors to delay an aircraft departure or “ground” an aircraft during the course of their investigations. Good governance practices require establishment of such standards and informing regulated parties as to the rights, roles and responsibilities of all parties. NATA asks that the FAA provide specific detail on what powers and rights it intends OSHA inspectors to have with regard to boarding and/or restricting the movement of aircraft.

What Applies and When

The draft statement enumerates three areas where the FAA will allow application of existing OSHA regulations. Within the draft policy, the FAA states that with regard to hazard communications and bloodborne pathogen rules “OSHA can enforce those standards” and that “OSHA's hearing conservation standard can apply.”

These statements appear to give immediate authority to require compliance with the applicable OSHA regulations upon issuance of this policy as a final document. No compliance timetable or transitional period is noted. The FAA goes explains that “[i]n a subsequent MOU, FAA and OSHA will establish procedures to identify any additional working conditions where OSHA requirements may apply.” This further reinforces construing the statements related to hazard communications, bloodborne pathogens and hearing conservation to intend that they are effective immediately upon issuance of a final policy statement. NATA strongly objects to this course of action. As previously stated, our position is that the proposed actions constitute rulemaking and proper notice and comment is required.

Difficulties complying with existing hearing conservation requirements offer a practical example of why rulemaking is necessary. The ability of an operator to determine interior noise levels of different aircraft in its fleet is highly problematic. The interior cabin noise of an aircraft is based on numerous factors, which include but are not limited to: altitude, pressure, temperature, phase of flight, passenger load, and aircraft systems operation. In addition, adoption of the current OSHA noise standard will require noise testing of each aircraft in the operator’s fleet (since some identical aircraft types may exhibit different cabin noise levels), ongoing monitoring of those noise levels, and yearly audiometric testing of all persons determined to fall within the definition of aircraft cabin crewmembers. This will create a significant expense to operators, and such expense can only be captured and evaluated within the formal rulemaking process.

Negative Safety Consequence

In pursuing this course of action, the FAA has not fully considered the negative safety consequence for operations where a flight attendant is not required. The proposed policy appears directed specifically at Part 121 scheduled airline operations, but it is never stated as such. The commercial on-demand and noncommercial operators do not appear exempt from the requirements of the draft policy.

The vast majority of aircraft operated by on-demand air charter operators and noncommercial aircraft owners do not require the presence of a flight attendant. FAA regulations require a flight attendant only when 20 or more passenger seats are present for on-demand Part 135 operations and for fractional program operations and traditional private operations conducted under Part 91 (see §§ 91.533, 135.107). For a multitude of reasons, many operators and customers elect to place a “cabin attendant” in the aircraft. These persons are known by a variety of names (e.g. cabin attendant, cabin service agent, cabin safety agent), and they serve myriad roles, including safety briefings, food and beverage service, passenger comfort roles and interfacing between the flight crew and the passengers. In some cases, they may be treated by regulation as crewmembers (but not flight attendants as there is no regulatory requirement) or may be treated as an additional passenger. This designation is solely at the discretion of the operator. Their presence on the aircraft is purely voluntary but they serve a valuable safety-enhancing role.

Given the expected burden of compliance (both in costs and administratively) with an entirely new regime of regulations imposed by another government agency, it is highly likely that the continued use of non-required cabin attendants will undergo a critical review to determine the feasibility of continuing to staff the aircraft cabin in this manner. We expect that in many instances the aircraft owner or operator will elect to forgo non-required cabin attendants should the FAA proceed down its current path. NATA requests that the FAA more fully examine and respond to this negative safety consequence. NATA strongly believes that any creation of FAA policy related to the applicability of OSHA standards should, therefore, apply only to operations where the FAA requires flight attendants by regulation.

NATA appreciates the FAA’s willingness to receive comments on this complex issue and looks forward to the agency’s response.

Sincerely,
Jacqueline E. Rosser
Director, Regulatory Affairs

[1] Such noncommercial activities include, but are not limited to, Part 91 corporate flight operators and Part 91K fractional program operations.

[2] FAA/OSHA Aviation Safety and Health Team (First Report), Application of OSHA’s Requirements to Employees on Aircraft in Operation, December 2000.

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NATA Comments on Repair Stations NPRM

Tue, 20 Nov 2012 16:03:00 GMT

November 19, 2012

Docket Operations
U.S. Department of Transportation
1200 New Jersey Avenue, SE
Washington, DC 20590

Submitted electronically via www.regulations.gov

RE: DOCKET #FAA-2006-26408 - NOTICE OF PROPOSED RULEMAKING, REPAIR STATIONS

NATA’s membership consists of a significant number of repair stations certificated under Title 14 of the Code of Federal Regulations (14 CFR), Part 145 (hereafter referred to as repair stations) and an even greater number of aviation businesses that rely on the services provided by repair stations. These repair stations play a vital role in all segments of the aviation industry and contribute greatly to the overall positive impact that aviation has on our nation, economy and lives. It is for these reasons that NATA is pleased to offer these comments.

I. Rule Background and Summary

The Repair Stations NPRM is the culmination of a series of rulemaking projects, proposals and advisory committees that began in 1989. The most recent prior proposal was issued in 2006 and was withdrawn after public comment because it "did not adequately address the current repair station operating environment."

In the withdrawal notice, the FAA commented that further rulemaking had begun that would more "fully address the significant changes in the repair station business model[s]. This proposal is the result of that effort.

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NATA Comments on FAA Portable Electronic Device Policy

Fri, 02 Nov 2012 15:32:00 GMT

October 30, 2012

Docket Operations, M-30

U.S. Department of Transportation

1200 New Jersey Avenue, SE

Room W12-140

West Building Ground Floor

Washington, DC 20590-0001

Delivered electronically via www.regulations.gov

RE: Docket No. FAA-2012-0752; Passenger Use of Portable Electronic Devices on Board Aircraft

Key Recommendations

As the national association representing Part 135 air carriers and Part 91 fractional aircraft program managers, NATA supports increased access to personal electronic devices (PEDs) by passengers. NATA offers two key recommendations with regard to passenger use of PEDs while on board aircraft.

1. NATA recommends that the Federal Aviation Administration (FAA) permit the use of PEDs at any time while on board an aircraft under the following conditions;

authorization of PED use is, in general, at the discretion of the carrier or program manager, and, for any given operation, at the discretion of the flight crew
devices may not be in use during the departure briefing (but may remain powered-on)
larger devices (e.g. laptop computers) should be stowed for takeoff and landing phases per operator-established policies or at the direction of the flight crew

2. With regard to transmitting PEDs (such as mobile phones or other devices using cellular technology), NATA recommends that FAA policy and regulations should permit the use of said devices if the carrier so chooses to permit, and equip the aircraft as necessary to support, such use.

Differences In Passenger Attitudes

NATA believes it is critical for the FAA to understand the different perspectives on PEDs amongst passengers of on-demand air charter and/or fractional program aircraft and those on the Part 121 airlines. The concerns expressed by many airline passengers related to PEDs, and in particular concerns over mobile phone usage, are largely due to the cramped environment typical on an airline aircraft. Passengers fear disruptions and annoyances caused by cell phones being used in this environment.

On the contrary, the passengers on aircraft utilized by NATA’s members would welcome the ability to use their cell phones during their flight. These passengers want to be accessible to their business associates or family during their trip. Flights are generally limited to select persons all known to each other and who are traveling for a common purpose – i.e. a business meeting. These persons are able to decide for themselves, collectively, whether any conversation is inappropriate or disruptive to the group.

Passengers on our member’s aircraft are actively inquiring about the ability to use their own phone during flight rather than rely on installed flight phones that are not easily used to receive inbound communications.

We recognize and respect that this view is not shared by many operating within the Part 121 environment and recommend that due to the distinct operational environments and passenger feedback, it is appropriate to consider Part 135 and Part 91 operations separately in this matter. Our members operating and managing aircraft and the passengers that use these aircraft are in agreement in their desire to enhance PED use, including cellular-based PEDs, on board aircraft.

Passenger Safety Briefing

The importance of a proper pre-departure briefing is critical and NATA supports PED-related regulations mandating that these devices may not be “in use” during the briefing. This is distinguished from current policies that require devices to be shut down or turned off prior to flight. NATA does not imply that a passenger would need to turn off a device merely that it is not to be in use during the safety briefing. Put simply, passengers should not be listening to music or talking on the phone during a briefing, much like they are asked to stop reading the paper or to cease conversations with seatmates today.

Interference

The FAA explains in its notice that rules restricting PEDs originated due to demonstrated interference with aircraft navigation systems resulting from FM radio receivers. To the extent that radio technology was demonstrated to create interference and may still pose an interference threat it is appropriate for the FAA to continue to bar their use on aircraft. Likewise it would be appropriate for the FAA to restrict any devices known to cause interference. However, the majority of devices that today’s passengers wish to use have never, to our knowledge, been shown to create a flight hazard. Despite many studies the FAA cites no conclusive data to show that today’s electronics are a threat.

To the contrary, there is now real-world experience supporting increased ability to used PEDs, including transmitting PEDs like cell phones during all phases of flight. Widespread PED use during flight at altitude has generated no known problems that would indicate use during all phases would be unsafe. Further, several non-U.S. airlines now permit the use of cellular connected devices during flight. These carriers have satisfied their respective regulatory authorities’ safety concerns and installed equipment allowing cell phones and other connected devices to be used during flight. To date, there have been no reports of adverse safety consequences. The FAA now has current, real-world experiences to refer to that support the ability and choice of an aircraft owner or operator to install this equipment. At this juncture, the hesitation to move toward permitting use of cell phones and other connected devices appears to be influenced more by public sentiment than hard data. Again, NATA fully appreciates this concern. It is why we are recommending changes specific to the on-demand air charter and fractional ownership segments of the industry.

Procedures and Methods for Operators to Allow Use of PEDs

As the FAA moves toward an adoption of increased use of PEDs by passengers, there are safety concerns to address. NATA believes that the FAA should shift the regulations (i.e. §§ 91.21 and 135.144) to permit, rather than prohibit, PED use by passengers unless the operator chooses to restrict such use. This shift would grant passengers wider ability to use PEDs, but retains the ability of the operator to restrict use for any reason at any time. This places the focus on carrier or program manager policies in conjunction with the authority of the flight crew, to determine when (and which) devices may not be used.

Current regulations state that the aircraft operator may permit PEDs that the operator has determined will not cause interference with the aircraft (see 14 CFR 135.144(b)(5)). NATA advocates that the FAA amend the regulations to permit the use of PEDs unless carrier-restricted rather than today’s standard where the carrier must specifically approve every device. With the rapid progress of technology and new devices being released daily it is unrealistic to anticipate that every possible device a passenger may bring on board has been determined by the carrier not to cause interference and that each device is addressed in the operator’s manuals and procedures.

A more realistic stance, given the lack of data showing negative interference is an issue today, is to permit most PEDs unless the operator and/or flight crew decide to prohibit items. The FAA, PED manufacturers and others should collaborate to provide to aircraft operators any information on specific devices that may or are known to cause interference.

PED Retention Risks

A concern with allowing the use of larger PEDs during take-off and landing phases of flight is their potential to become projectiles or obstacles during an emergency. NATA concurs with this assessment, and believes that the air carrier/program manager is best suited to determine at what size or weight articles become a concern. On the typical aircraft utilized by our members, the most likely PED to fall into this category is a laptop computer. Due to the substantially lower passenger capacity experienced in this industry it is not as likely these items will become evacuation obstacles as they might in the cramped quarters of airliners. It is possible that they could cause injury as projectiles and should be stowed during critical phases. NATA recommends that the operators are best suited to determine how such items will be handled on a given aircraft.

NATA appreciates the opportunity to provide our views to the FAA as the agency considers changes to existing PED policy.

Sincerely,

Jacqueline E. Rosser

Director, Regulatory Affairs

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NATA Comments On FAA Through-the-Fence Policy

Fri, 14 Sep 2012 15:40:00 GMT

September 14, 2012

Docket Operations

U.S. Department of Transportation

1200 New Jersey Avenue, SE.

Washington, DC 20590

Submitted electronically via www.regulations.gov

RE: Docket #FAA-2012-0754, Airport Improvement Program (AIP): Policy Regarding Access to Airports From Residential Property

NATA firmly believes that the strength of our National Airspace System (NAS) arises in part from the flexibility of airports to respond as the economic needs of their community and region grow over time. Many vital reliever and general aviation (GA) airports across the nation developed that flexibility over the past 30 years as the needs of their community changed. NATA’s interest in the Federal Aviation Administration’s (FAA) proposed policy stems from the association’s objective of protecting the future utility of our nation’s airports. Airports that have met short-term needs through solutions that hamper future expansion and growth are of a reduced utility to the NAS and our nation.

In general, NATA concurs with the FAA’s reading of Public Law 112-95, Section 136 (section 136) and the Proposed Final Policy on Existing Through-the-Fence Access to Commercial Service Airports From a Residential Property (proposed policy) and offers the comments below on important areas of concurrence and difference.

Existing RTTF Access

NATA concurs with the FAA policy as presented in regards to existing Residential Through The Fence (RTTF) access.

New RTTF Access at Commercial Service Airports

NATA concurs with the FAA’s interpretation that new RTTF access at commercial service airports would constitute a violation of grant assurance 5(g) and is, therefore, prohibited.

Review of Proposed New RTTF Agreements at GA Airports

NATA concurs with the FAA’s interpretation that “the inclusion of specific terms and conditions [in PL 112-95, Section 136, indicates] Congress’ intent for the FAA to enforce the provision accordingly.”[1]

Some may argue that Congress did not intend for prior review of proposed RTTF agreements but rather an after-the-fact review. Such a view, however, is flawed. After-the-fact reviews of signed RTTF agreements present no pathways to compliance since an airport sponsor would already be legally obligated to comply with the terms of the signed agreement. Under those situations, such an agreement and the associated access would likely continue as the airport sponsor would be obligated by the binding agreement.

Congress, during the debate surrounding the FAA Modernization and Reform Act of 2012, was well aware of the FAA’s interim policy prohibiting new RTTF agreements; therefore, it must be assumed that the purpose of section 136 was to create a narrow carve-out that allowed new RTTF to occur only under the included restrictions. After-the-fact review of RTTF agreements, as it would likely allow non-compliant access to continue, therefore frustrates Congress’ narrow intent that RTTF access only occur under the specific enumerated restrictions contained in section 136. Prior review of proposed RTTF agreements, therefore, is the only method to ensure that Congress’ intent if fulfilled.

Interpretation of Conditions Contained in Section 136

NATA generally concurs with the FAA’s interpretation of the restrictions contained in section 136. Of particular concern to NATA were the conditions regarding access for a property owner not party to an RTTF agreement through the property of an individual that is party to an RTTF agreement, commercial activities on a property with RTTF access, and aircraft refueling on property subject to an RTTF agreement. NATA believes that the FAA has properly interpreted Congress’ intent in all but one case, detailed below.

The proposed interpretation regarding the requirement that property subject to an RTTF agreement must be “maintain[ed] … for residential, noncommercial use”[2] states that the FAA believes this is a “prohibition on commercial aeronautical services offered by residential through-the-fence users.”[3] While NATA believes this interpretation to be correct, the language of section 136 also prohibits RTTF users from offering their property to the public for the sole purpose of receiving commercial aeronautical services from a third party[4].

Without such an interpretation, a third party could establish a commercial aeronautical service facility off of the airport (and thus free from airport regulation and collection of fees applicable to similar on-airport providers) and perform those services for the public on the property of an RTTF access holder. The language of section 136 prohibits commercial (aeronautical) use of property subject to an RTTF agreement.

NATA requests that the FAA modify its interpretation to indicate that allowing public use of the property to receive commercial aeronautical services would be a violation of the conditions set forth in section 136.

Level of Review

The conditions set forth in section 136 regarding new RTTF access agreements at general aviation airports are novel, and thus their proper application will be vital in the early stages of this policy. Over time as a record is developed of the proper application of these restrictions, evaluations of proposed RTTF access agreements will become more routine. Under the current vision[5] offered by this policy and the associated Compliance Guidance Letter, proposed new RTTF agreements at general aviation airports would be reviewed at the Headquarters level. NATA believes that in the early stages of this policy headquarters level review of proposed new RTTF access agreements is vital to ensure the consistent application of the policy. However, NATA believes over a number of years this review could be moved to the Regional or Airports District Office level. NATA requests that the FAA consider an appropriate time line for such a change.

NATA appreciates the opportunity to provide its comments on this proposed policy.

Sincerely,

Michael France

Director, Regulatory Affairs

[1] 77 Fed. Reg. at 44516

[2] P.L. 112-95, section 136(A) “(t)(2)(B)(iii)

[3] 77 Fed. Reg. at 44517

[4] Checklist item #4 in Appendix D of the draft Compliance Letter provides language that NATA believes meets the full intent of the law; “airport sponsor prohibit[s] commercial aeronautical uses on the property”

[5] Draft Compliance Letter, Section V(a), page 9

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NATA Comments on Petition for Exemption from Federal Aviation Regulation Sections 61.3 and 61.23

Fri, 06 Jul 2012 10:29:00 GMT

July 2, 2012

US Department of Transportation

1200 New Jersey Avenue S.E., West Building Ground Floor

Room W12-40

Washington, DC 20590

RE: Docket #FAA-2012-0350, Petition for Exemption from Federal Aviation Regulation Sections 61.3 and 61.23

The National Air Transportation Association (NATA), the voice of aviation business, is the public policy group representing the interests of aviation businesses before the Congress, federal agencies and state governments. NATA's over 2,000 member companies own, operate and service aircraft and provide for the needs of the traveling public by offering services and products to aircraft operators and others such as fuel sales, aircraft maintenance, parts sales, storage, rental, airline servicing, flight training, Part 135 on-demand air charter, fractional aircraft program management and scheduled commuter operations in smaller aircraft. NATA members are a vital link in the aviation industry providing services to the general public, airlines, general aviation and the military.

The Aircraft Owners and Pilots Association (AOPA) and the Experimental Aircraft Association (EAA) have joined together in petitioning for an exemption from Title 14 Code of Federal Regulations, Part 61 sections 3(c), 23(a)(3) (FAA Docket # FAA-2012-350-). The petition seeks to allow members of both associations to fly recreationally without a third-class medical certificate. Those who chose not to have a medical certificate could continue to fly by assessing their own physical condition prior to each flight after having completed an in-depth course on aeromedical factors and flight physiology. The free course would be offered online, but must be retaken every two years. However, restrictions for those without a medical certificate would include operations in a single-engine aircraft with less than 180 hp operating in day VFR conditions.

NATA supports the AOPA / EAA petition. By providing the option for pilots to medically self-assess themselves, NATA believes that the aviation community could thrive without compromising safety.

Safety

NATA believes the proposed exemption would not adversely affect safety and could actually serve as a safety benefit.

Sport pilot regulations do not require pilots to obtain a medical certificate but, rather, places the responsibility on the pilot for judging his or her level of fitness to fly. Since the creation of these regulations, the level of safety regarding medically related issues has remained constant for those operations that do require an FAA medical certificate. Therefore, expanding the privileges of aircraft operations without a medical certificate would be of no detriment to the aviation industry.

NATA believes that providing pilots with an in-depth aero medical education would not compromise the integrity of safety within the general aviation community. While an FAA medical examination is a one-time exam, pilots would be able to assess their own physical condition more thoroughly prior to every flight. The education provided to pilots would allow them to take a more preventative stance, recognizing early symptoms before the onset of a serious problem.

Promotion of Aviation

Granting this petition would alleviate much of the burden pilots face when obtaining an FAA medical certificate. Between the time and expenses it takes to obtain the medical certificate, the burden for many pilots is just too much to continue flying. Allowing properly educated pilots to medically assess themselves would not only incentivize pilots to keep flying, but would also attract many future pilots to aviation. The petition serves the public interest by helping to maintain a strong aviation community.

Conclusion

NATA supports the petition as a benefit to safety and the public. The use of an in-depth aero medical education program would enable pilots to better assess their own physical conditions prior to every flight. There is no doubt that those who will benefit the most from this exemption will be both current and future pilots as well as the airports in the communities that rely on general aviation .

Collin Smith

Manager, Regulatory Affairs

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Coyne Addresses Metropolitan Airport Commission

Fri, 11 May 2012 12:24:00 GMT

Statement Of James K. Coyne
President and CEO
National Air Transportation Association

Before the Metropolitan Airport Commission

Hearing on Proposed Changes to Ordinance 107

May 7, 2012
Lindbergh Conference Room
6040 28th Avenue South
Minneapolis, MN 55450

Chairman Boivin and Members of the Commission,

I appear before you today as the president and CEO of the National Air Transportation Association (NATA). NATA, the voice of aviation business, is the public policy group representing the interests of aviation businesses before the Congress, federal agencies and state governments. NATA's 2,000 member companies own, operate and service aircraft. These companies provide for the needs of the traveling public by offering services and products to aircraft operators and others such as fuel sales, aircraft maintenance, parts sales, storage, rental, airline servicing, flight training, Part 135 on-demand air charter, fractional aircraft program management and scheduled commuter operations in smaller aircraft. NATA members are a vital link in the aviation industry providing services to the general public, airlines, general aviation and the military. NATA’s Airline Services Council (ASC) represents local, regional, state and international aviation services providers that operate at 425 airports in 67 countries. ASC member companies are an integral component of the national air transportation system offering a broad range of airline- and airport-related services, including aircraft refueling. NATA member companies operate business at several of the Metropolitan Airport Commission’s (MAC) airports.

The proposed changes to Ordinance 107 represent a significant increase in the cost of doing business and operating aircraft from the MAC’s reliever airports. The complexity of the proposed changes to Ordinance 107 prevent a simple assessment of cost; however, the removal of the reverse sliding scale, addition of landing fees and a fuel flowage fee all represent additional cost at the airports where they are newly imposed. The removal of the reverse sliding scale for percentage rent alone represents an increase of between 25% and 50% depending on a facility’s gross revenue. Since the MAC has not provided data on the assumptions used in developing these proposed changes, it is difficult for the affected business to estimate the final cost these changes will have.

The MAC finds itself in the reasonably unique position as the sponsor of a system of airports as opposed to an individual airport or several independent airports. Managing a group of airports as a system brings with it special benefits as well as added challenges. From the standpoint of setting airport rates and charges, the MAC has approached this task from a system-oriented viewpoint, recognizing that, although directly less profitable, certain services and facilities provide a less easy to measure benefit to the entire system. In its 2011 Comprehensive Annual Financial Report, the MAC summarizes this policy, noting, “In order to promote and encourage the efficient use of facilities at all MAC airports…MAC has implemented a policy of subsidizing its reliever airports.”¹ While the MAC uses the term “subsidize,” I believe it more accurate to view this policy in terms of overall benefit to airport users and the local community.

The MAC has recognized that it can create more efficient and effective use of its system of airports by treating these airports as part of a system rather than as individual self-sufficient entities.

Current Federal Aviation Administration (FAA) policy fully recognizes a sponsor’s ability to adopt this type of system.² It is vitally important for the commission to understand that its policy of managing the relievers as part of an airport system rather than as standalone airports is permitted. NATA would be pleased to assist with any communications with the FAA were the commission to have any concerns in this area.

Before proceeding, I belive the MAC must consider the effects that raising the cost of utilizing reliever airports will have on the entire airport system. The general aviation industry, the primary users of the reliever airports, has been particularly hard hit by the economic state of the nation, with reductions in hours flown and total fleet size over the past five years. The airports operated by the MAC have seen a decrease in general aviation traffic of over 23% from 2005 to 2010.³ However, despite these reductions in general aviation traffic, the revenue collected by the MAC from the reliever airports has increased by 11% over the past 3 years.⁴ This increasing revenue being derived from a smaller number of operation shows that the cost burden for the aircraft using the reliever airports is already increasing. With the proposed changes to Ordinance 107, the MAC is now considering a dramatic increase in that cost burden. The increase arising from the proposed changes would be both indirect, through the increased rates and charges paid by aeronautical service providers, and direct, through the addition of landing fees being imposed at two of the reliever airports.

The changes proposed by the MAC are complex, both in substance and effect. Not just are the amounts of the fees changing but the scope and method of collecting those fees is changing as well. With such a complex system of changes, it can be very difficult to forecast results. However, in light of the local decrease in general aviation traffic and the current national economic picture, NATA fears these changes may produce the unintended result of driving traffic away from the MAC’s reliever airports. Such a result would be catastrophic as it would erase the recent gains in revenue and threaten the ability of the existing aeronautical service providers to stay in business. As the sponsor of an airport system, the MAC must also consider what impact driving traffic away from the relievers might have on the Minniapolis/St. Paul (MSP) airport. In making the reliever airports a less attractive option, more general aviation traffic may utilize MSP, increasing congestion and costs.

Aside from direct costs to the MAC from a decrease in or change in utilization of airports by general aviation traffic, the commission must consider the impact upon the businesses that call the reliever airports home. A further reduction in general aviation operations threatens the ability of these companies to continue to be successful. Reduction in traffic would likely lead to reductions in staff, and less capital available for investment in equipment, facilities and facility maintenance, all of which have a negative long-term impact on the MAC and its airports system.

NATA is not without understanding in regard to the MAC’s issues relating to the reliever airports rates and charges. According to the March 23 letter to MAC airport tenants, the reliever airports are expected to experience a $2 million deficit at the conclusion of 2012. This $2 million deficit represents approximately 0.8 percent of the MAC entire operating expenses.⁵ The proposed changes to ordinance 107 to address this deficit will have very little benefit to the MAC’s overall bottom line, but risk significant impact in general aviation jobs and traffic at a moment when our economy is in the earliest of stages of recovery.

I firmly believe that highlighting issues without offering solutions does little to benefit anyone. NATA believes that the problems relating to the reliever airports highlighted by the proposed changes to Ordinance 107 are solvable and that the best path forward is a cooperative one that involves both the commission and the businesses that operate at the MAC’s reliever airports. I ask this commission to put these changes on hold and create a committee consisting of MAC staff, reliever airport business representatives and airport users that can review these issues and make suggestions on solutions that address the commission’s concerns. Such a committee would exactly represent the good faith effort that the FAA suggests when airport sponsors are considering changes to rates and charges policy:

Airport proprietors should consult with aeronautical users well in advance, if practical, of introducing significant changes in charging systems and procedures or in the level of charges. The proprietor should provide adequate information to permit aeronautical users to evaluate the airport proprietor’s justification for the change and to assess the reasonableness of the proposal. For consultations to be effective, airport proprietors should give due regard to the views of aeronautical users and to the effect upon them of changes in fees⁶

Up to this point, some of the reliever airport businesses have had little access to the data that underlies the reasoning behind the proposed changes to Proposition 107. Some only received the actual financial statements relating to the reliever airports just last week.

Without access to all the data and information underpinning the MAC’s proposal, these businesses lack the ability to fully assess the proposed changes. Additionally, the creation of such a committee would give the commission time to investigate fully the effects of increasing the cost of doing business and utilizing the reliever airports would have on the entire airport system, especially the possibility of increased congestion at MSP.

Through such a committee, the MAC would provide the opportunity for the full vetting of the issues affecting all stakeholders and promote the eventual acceptance of whatever course of action is chosen by the commission. NATA stands ready to assist in the process in any way possible. Thank you for your time and consideration of these comments.

^1. Page 11

^2. Policy Regarding the Establishment of Airport Rates and Charges, http://www.faa.gov/airports/airport_compliance/

^3. 2010 MAC Comprehensive Annual Financial Report, page 70

^4.MAC Income Statements 2009-2011

^5. Based upon 2011 figures, MAC 2011 Budget Book

^6. Policy Regarding the Establishment of Airport Rates and Charges, page 4

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NATA comments on FAA proposed 1500 Hour pilot training rule

Wed, 02 May 2012 12:06:00 GMT

April 30, 2012

Docket Operations, M–30
U.S. Department of Transportation
1200 New Jersey Avenue SE, Room W12–140
West Building Ground Floor
Washington, DC 20590–0001

Submitted electronically via www.regulations.gov

RE: Docket # FAA-2010-0100, Pilot Certification and Qualification Requirements for Air Carrier Operations

The National Air Transportation Association (NATA), the voice of aviation business, is the public policy group representing the interests of aviation businesses before the Congress, federal agencies and state governments. NATA's 2,000 member companies own, operate and service aircraft. These companies provide for the needs of the traveling public by offering services and products to aircraft operators and others such as fuel sales, aircraft maintenance, parts sales, storage, rental, airline servicing, flight training, Part 135 on-demand air charter, fractional aircraft program management and scheduled commuter operations in smaller aircraft. NATA members are a vital link in the aviation industry providing services to the general public, airlines, general aviation and the military.

NATA has been very concerned with the possible negative safety and training effects arising from the passage of the Airline Safety and FAA Extension Act of 2010. Of particular concern is the mandatory establishment of a 1500-hour total flight time requirement for a pilot to operate in an airline environment. Our concern less involves the actual number of total hours required and is more focused on the lack of regulatory flexibility to adapt to new science in understanding how best to train a professional pilot. Under the scheme established by the act, the Federal Aviation Administration (FAA) retains little authority to adopt new training standards that, while possibly encompassing less than 1500 hours total time, might be proven to provide more comprehensive training, experience and benefit to safety.

However, under the framework established by the act the Pilot Certification and Qualification Requirements for Air Carrier Operations Notice of Proposed Rulemaking (NPRM) becomes vitally important. The regulations established by this NPRM will guide the next generation of airline pilots and have an effect on the entire aviation industry, from small Part 61 flight schools to the largest airline.

Rule Summary

With this NPRM, the FAA proposes the following:

A requirement that all pilots operating under Part 121 must hold an ATP certificate
Pilots will be required to have obtained 50 hours of flight time in the class of airplane for the ATP certificate for which they are applying
A requirement for all pilots operating under Part 121 to hold a type rating, if available, for the aircraft they are operating
The creation of an ATP Certification Training Program that would be required for all applicants seeking an ATP with a multi-engine rating or type rating
- This training course would require:
  - 25 hours of classroom training
  - 16 hours of mandated turbine flight simulator training
The creation of a restricted privileges ATP Certificate allowing certain pilots (ex-military and those graduating from an aviation degree program/flight training program) to act as SIC under Part 121 with less than 1500 hours total time
A requirement of 1000 hours of Air Carrier operations to serve as PIC under Part 121

Specific Comments

ATP Certification Training Program

Recommendation – Due to the costs and reductions in safety inherent in the ATP CTP, NATA recommends that the FAA withdraw the proposed Part 61, Section 154. Rather, modifications to the existing ATP aeronautical experience, knowledge and training requirements should be made. These changes can effectively address the conceptual training that the FAA has envisioned with the ATP CTP. Due to the cost and possibility of negative learning experiences, any mandated simulator training should be integrated into an air carrier training program rather than as a stand-alone certification requirement.

The proposed modifications to the ATP Certificate, in an attempt to meet the requirements set forth in Section 217 of the Airline Safety Act of 2010, have resulted in shifting airline-centric training away from the airlines themselves onto the individual pilot. As outlined in the preamble, air carriers can ask for a reduction in their initial training hours based upon a pilot’s completion of the ATP CTP. This shift of training burden greatly increases the cost of training to the individual pilot, increases the opportunity for negative learning experiences and creates a disincentive for pilots to pursue additional certification.

In this rulemaking and the associated analysis, the FAA has presented the ATP CTP as a program that will likely be performed by air carriers in advance of or during applicable initial or upgrade training¹. NATA believes that analyzing this proposal in this manner is not appropriate. The ATP CTP is a regulatory requirement that is imposed upon individuals, not air carriers or other certificated entities. As stated in the rule preamble, the ATP CTP “would be a basic certification requirement, not an air carrier training program requirement.”². Since no requirement exists or is proposed that requires air carriers to provide the ATP CTP, we believe the FAA must perform its analysis of this proposal assuming the impact is on individual pilots pursuing ATP certification.

The Initial Regulatory Analysis for this rule estimates the ATP CTP will be a seven-day course with an estimated cost of $5771³. The FAA’s use of a framework that has the cost of the program being be borne by Part 121 air carriers leads to numerous assumptions on cost factors that result in an overall lower cost estimate than if the cost of the program were borne by individuals. These lower cost factors are a direct result of the efficiencies in training available to an air carrier such as utilizing its own training personal as opposed to contracting with a third party, combining multiple training events and negating additional travel costs by combining training events⁴. Individual pilots seeking ATP certification do not have access to these efficiencies and would be required to contract with a third party to complete the ATP CTP. Since the regulatory requirement to complete the ATP CTP affects individuals, not air carriers, the cost of the program must be calculated based up factors derived from an individual pilots’ cost in completing the required training.

Aside from cost, the shifting of training from an air carrier training program to individual pilots also poses the risk of negative learning situations arising from overgeneralization and in-applicable topics. Training providers seeking to offer an ATP CTP will be forced to create a program that is as broad as possible to give the provider as large a customer base as possible. Topics that were once covered in specific air carrier initial training will now be taught in a fashion that makes them applicable to as large a population as possible, likely leading to the loss of functional applicability to a specific air carriers operating environment. NATA’s position on this issue is not that these topics should not be taught to prospective air carrier pilots but rather they should be taught as part of an air carrier training program thus allowing the pilot to gain as much specific knowledge and experience as possible that will be applicable to the environment and conditions in which they will be operating.

In addition to over-generalization of training topics, the ATP CTP also creates negative learning situations by forcing pilots into non-applicable training. As proposed, the new section 154 requires simulator training to be performed in a device that “represents a multi-engine turbine aircraft”⁵. However, the requirement to complete the ATP CTP applies to any pilot who seeks an ATP with airplane category, multi-engine class rating or type rating. There are many pilots who will be required by regulation to hold an ATP, and thus complete the training in a turbine simulator, who will be operating a turboprop or piston engine aircraft. This pushing of a pilot into a training event that is inapplicable to their experience and operational goals will lead to a negative experience that does not increase safety. Also as outlined below, many pilots of turboprop and piston-engine aircraft who are not required to hold an ATP still seek the ATP rating and forcing those pilots to train in a turbine simulator will create a negative experience that could affect safety.

Finally, the FAA appears to fail to understand the broad use the ATP certificate has achieved throughout the industry. Despite its name, the ATP certificate has been used for many years by segments of the industry where an ATP rating is not mandated by regulation. As an additional level of certification above commercial pilot, the ATP certificate is commonly used by many Part 91 operators and non-turbojet Part 135 operators as an advanced threshold for pilot hiring. Many insurance companies utilize the ATP certificate as a threshold for pilot qualification in covered Part 91 operations. This expanded use of the ATP beyond its regulatory mandate provides an overall benefit to safety. However, as written the ATP CTP will act as a disincentive for pilots to complete this additional level of certification due to cost and the risk of negative learning events. NATA believes that the FAA should tread cautiously when a new proposal, such as the ATP CTP, threatens existing, voluntary measures that benefit safety, especially when other methods of achieving the same goal exist.

NATA’s recommendation that the proposal for the creation of an ATP CTP should not be construed in a manner that suggests the association does not see value in additional conceptual training for prospective ATP candidates. NATA’s position is based upon the specifics of the proposed manner of providing that training. We believe that the additional training mandated by section 217 of the Airline Safety Act and of nearly equivalent value to that obtained through the proposed ATP CTP can be accomplished at a lower cost through the modifications of the knowledge and training regulations governing the ATP certification. Insertion of required training topics, much like is done with other certification levels, will create an environment where pilots are able to utilize less burdensome training methods, such as on-line course delivery.

ATP Certificate with Restricted Privileges Based Upon Academic Credit or Military Experience

Recommendation – NATA recommends that the FAA expand the flight hour credit proposal to include a comprehensive framework similar to the recommendations of the FOQ ARC and any other science-based advanced training courses that provide a benefit to safety. In the event that the FAA chooses not to expand this proposal, NATA recommend that the FAA withdraw this proposal in its entirety until such time as the agency can create a more comprehensive framework.
Section 217 of the Airline Safety Act of 2012 permits the FAA to establish flight hour credits for the completion of “academic” courses. The flight hour credits would reduce the number of total hours needed to be eligible to obtain an ATP certificate. The act further requires that in establishing these credits the administrator must determine that completion of an academic course in combination with a reduced number of total flight hours will provide more safety benefit than would meeting the full flight hour requirement without completing the course.

In this rulemaking, the FAA proposes creating a “Restricted Privileges” ATP Certificate that can be obtained with reduced total flight time hours. Applicants who complete a four-year baccalaureate aviation degree program and commercial pilot certification with an affiliated Part 141 flight school are eligible for the restricted privileges ATP with only 1000 total flight hours. Former military pilots can receive the restricted ATP with only 750 hours.

While NATA agrees with the idea of incentivizing additional training and education that has a safety benefit, we are perplexed by the FAA’s approach to this proposal. The FAA chartered First Officers Qualifications Aviation Rulemaking Committee (FOQ ARC) developed a proposal for offering flight hour credit for specific training events such as completion of a four-year degree, two-year degree, Certified Flight Instructor Rating and Advanced Jet Transition training.

The FAA indicated that it rejected the First Officer Qualifications Aviation Rulemaking Committee’s (FOQ ARC) recommendation for a framework of flight hour credits because the “Act [does not permit] giving added flight hour credit to certain types of flight experience to reduce the minimum required flight hours for the ATP certificate”⁶. However, the proposals for flight hour credits contained in this rulemaking all require a mix of “academic” training and flight experience just like the proposed FOQ ARC framework. The primary difference between the FAA proposal and the FOQ ARC proposal is that the FAA proposal is far more limited in training options for receiving flight hour credits.

NATA believes that for this rulemaking to provide safety benefits it must incentivize additional advanced training that provides a safety benefit. As written, the proposal does little more than create a bottle neck in the training process by only incentivizing one option for flight hour credits. The FAA’s statement that it is prohibited from implementing the other credit options envisioned by the FOQ ARC is unpersuasive as there is no discernable difference between the training and flight experienced combinations proposed by the FOQ ARC and the training and flight experience requirements contained in the FAA’s four-year degree and military training proposal.

ATP Minimum Age

Recommendation – NATA recommends that the FAA remove the age penalty for ATP applicants who do not qualify for a restricted privilege ATP certificate by allowing pilots who have met the requirements of 14 CFR 61.159 to qualify for a restricted privileges ATP.

The proposed rules create a two-year age penalty that allows former military pilots or those who have completed an applicable four-year aviation degree program to act as second-in-command in a Part 121 operation at age 21 while requiring others to be at least 23 years of age prior to ATP certification.

The FAA provides no details on why it has established this age differential; however, it is assumed that the FAA has made a determination that 21-year-old applicants pose sufficient maturity to exercise the limited privileges of a restricted privileges ATP. NATA believes that other explanations for this age penalty would not be justified; completion of a four-year degree program or certification as a military pilot would not necessarily speed up the natural maturation process.

Under the assumption that a 21-year-old pilot posses sufficient maturity to exercise the limited privileges of a restricted privileges ATP certificate, NATA recommends that the FAA establish a pathway whereby non-military pilots who have not completed a four-year degree program can be eligible to receive a restricted privileges ATP certificate at age 21 and 1500 hours of total flight time.

Answers To Selected Questions Posed By The FAA

ATP Certificate for All Pilots Operating Under Part 121

Is a minimum of 1,500 hours adequate in order to receive an unrestricted ATP certificate? Why or why not?

Yes, 1500 hours is the statutory minimum and the FAA has not presented any evidence of a need to increase that requirement.

Aeronautical Experience Requirement in the Class of Airplane for the ATP Certificate Sought

Is 50 hours in class of airplane too high, too low, or adequate in order to receive an ATP certificate with airplane category multi-engine class rating?

NATA concurs with the requirement for 50 hours in class of airplane.

Aircraft Type Rating for All Pilots Operating Under Part 121

Should all SICs be required to hold an aircraft type rating if the aircraft currently requires a type rating for the PIC, regardless of the rule part under which the aircraft is operated (e.g. Part 91, 125, or 135)? Why or why not?

NATA believes this question is not relevant to this rulemaking as the FAA has not proposed such a requirement or its rational for doing so. Absent conclusive evidence of a need for requiring a type rating for SIC in Part 91, 125 or 135, NATA would not agree with any proposal to do so. A pilot’s gaining of experience in actual SIC operations is highly valuable and provides an avenue to higher certification for the pilot.

ATP Certification Training Program for an Airplane Category Multi-engine Class Rating or Type Rating

Should pilots wanting to obtain an ATP certificate with airplane category multi-engine class rating or type rating be required to take an additional training course prior to taking the knowledge test? Why or why not?

NATA supports the idea of additional classroom and flight experience requirements for the issuance of an ATP certificate. However, we do not support the proposed requirement of an “approved” training program. NATA asserts that if the FAA believes that an “approved” training program for ATP is essential then it is up to the agency to provide evidence of that need as opposed to using a less burdensome alternative such as increasing knowledge and experience requirement. NATA does not support the requirement of a mandatory turbine flight simulator training for all multi-engine and type rating ATP certificates.
If academic training is required in an ATP certification training course, what topics are appropriate? How many hours are appropriate for such a course?

NATA supports the findings of the FOQ ARC in this matter.
Should an ATP certification training course include non-type specific FSTD training on concepts that are generally universal to transport category aircraft? Why or why not?

No. A requirement such as this shifts the cost burden of training for air carrier operations from the air carrier to the individual pilot. This type of training would, by necessity, be very general in nature and immediately be superseded by airline initial training and, therefore, provide little additional benefit for the costs imposed on the individual pilot.
If FSTD training is required, what level of FSTD is appropriate? How many hours are appropriate?

NATA does not support mandated generalized FSTD training as a prerequisite for ATP certification.
Based on the proposed content of the ATP Certification Training Program, what changes or reductions could be made to a Part 121 air carrier training program?

None. Surely it is not the FAA’s intent to allow Part 121 air carriers to reduce their training hours due to training provided by another air carrier or third-party training provider. In the event that an air carrier provides the pre-certification training to its own pilots, credit should be allowed to apply to the carriers training program.
The FAA assumes Parts 121, 135, 141, and 142 certificate holders will be able to provide the ATP Certification Training Program. What factors would these certificate holders principally consider in determining whether or not to offer the course?

The costs imposed by the simulator training requirement (to include one-off contracts for training – i.e. not bulk, and travel costs) will be a strong disincentive for the Part 135 operator to provide training so a pilot (new hire or otherwise) could obtain an ATP. Many Part 135 certificate holders conduct operations where an ATP is not required to serve as PIC. However, today many operators for various safety, insurance and liability reasons do provide the pilot with the training and support necessary to obtain an ATP and also require an ATP to serve as PIC. If implemented as proposed, the requirements of the ATP CTP will serve as a strong disincentive for Part 135 operators to comply with a higher standard than is required, posing a negative safety consequence.

For many operators utilizing non-type rated multi-engine aircraft, the mandate to provide 16 hours of turbine simulator time is costly and creates a negative learning possibility for the pilot. Learning to operate a jet aircraft when the intended operations are in multi-engine piston or turbo-prop aircraft provides little benefit to the pilot, the air carrier and ultimately the passenger/customer. The substantial costs to supply simulator time in an aircraft that is totally unlike the aircraft the pilot will fly for the operator is enough of a negative consequence for operators to change their policies regarding whether a PIC has an ATP.

Because the ATP CTP requires simulator time, the FAA is mandating that Part 135 operators contract with Part 142 training centers. Today, there are no mandates in Part 135 to use simulators – all required training may be conducted in-house and in-aircraft. No Part 135 operators of which we are aware own or exclusively lease their own simulators. Due to the aircraft fleet diversity present in Part 135, it is absolutely impractical for the certificate holder to even contemplate simulator acquisition. NATA strongly objects to the FAA’s effective mandate for Part 135 that they contract with a third party for pilot training by failing to provide an in-house, in-aircraft training option.

ATP Certificate With Restricted Privileges Based on Academic and Military Training

Should the FAA offer an ATP certificate with restricted privileges for pilots with fewer than 1,500 flight hours based on academic training and/or experience? Why or why not? If so, how many hours would be appropriate? Should anyone other than military pilots or graduates of four-year colleges and universities with aviation-related degrees and commercial pilot certificates with instrument ratings obtained from an affiliated Part 141 pilot school be eligible? Why or why not?

Not as proposed. Congress provided the FAA the ability to allow for reduced hours based upon a balance of safety assessment. The FAA has performed no such assessment. NATA supports reduced hours in a comprehensive system of experience and training credits similar to that proposed by the FOQ ARC.
Should military pilots be allowed to receive an ATP certificate with restricted privileges? Why or why not? If so, is the proposed 750 hours too high, too low, or adequate?

Allowing reduction in total flight hours for former military pilots should be a part of any comprehensive assessment of the many existing advance training programs and courses.
Should graduates of four-year colleges and universities with aviation-related majors and commercial pilot certificates with instrument ratings obtained from an affiliated Part 141 pilot school be allowed to receive an ATP certificate with restricted privileges? Why or why not? If so, is the proposed 1,000 hours too high, too low, or adequate?

As stated in the specific comments, NATA believes that there is a safety value to many different training programs that are above the existing certification minimum. NATA disagrees with the FAA’s approach of singling out only two possible sources for flight hour credit and believes the dangers of providing such a limited set of options outweighs the possible benefits. NATA would, however, support a comprehensive framework similar to that proposed by the FOQ ARC.
Should the FAA consider an alternative licensing structure for pilots who desire only to fly for a Part 121 air carrier (e.g. multicrew pilot license)? Why or why not?

NATA is supportive of any efforts to utilize a training regimen that is based upon the latest science, provides the greatest benefit to safety and is cost effective.

Minimum of 1,000 Hours in Air Carrier Operations To Serve as PIC in Part 121 Operations

Should the proposed PIC time in Part 91 subpart K or Part 135 operations count towards the Part 121 PIC requirement? Why or why not?

Yes. Part 135 and 91K operations occur in diverse areas of operations – with flights to and from thousands of more airports than those served by the Part 121 carriers. The flight planning, operational requirements/restrictions, and dispatch functions are all very similar to the Part 121 environment.
Should SIC time outside of Part 121 operations count towards the proposed requirement? Why or why not?

Yes, experience in multiple operational scenarios is beneficial to the overall skills of the pilot.

Closing

NATA appreciates the opportunity to present its comments on this NPRM. NATA believes that producing knowledgeable, proficient and safe pilots is vital to the ongoing success of our industry. We also believe that training should be science based. The last few decades have seen significant improvements in our understanding of how individual learn and retain information and skills. NATA is alarmed by what appears to be a turn away from science-based training and a return to a statistical model of training (i.e., given enough time it is statistically likely that a pilot will have encountered enough varying environments to ensure that they are proficient). The statistical model is not just outdated, it is costly. Today’s air carrier operations demand well trained and experienced pilots, a result that is best obtained by defined training options and experience. NATA hopes the FAA will proceed in a manner that takes into account what we have learned about how pilots learn and applies that knowledge in a manner that creates safer pilots at a reasonable cost.

Michael France
Director, Regulatory Affairs

¹ See 77 Federal Register at 12390 and Initial Regulatory Evaluation, Docket #, FAA-2010-0100-1352, page 14

² See 77 Federal Register at 12383

³ Initial Regulatory Evaluation, pages 14-16

⁴ It should be noted that even when assuming training is provided directly by an air carrier for its own employees, the FAA has still failed to account for the dramatic cost differences between Part 121 operations and smaller Part 135 and 91 subpart k operators. These smaller operators do not have the ability to utilize in-house training personnel to the same extent as a large airline and usually train far smaller class sizes (often one or two pilots at a time). This lack of ability to utilize efficiencies the way large airlines do would lead to significantly higher costs. Should the FAA reject NATA’s comment that costs of the ATP CTP should be computed based upon impact to the regulated individual pilot, NATA asserts that the FAA still must modify its estimates to reflect the higher training costs faced by Part 135 and 91 subpart K operators.

⁵ Proposed 14 CFR 61 Section 154(b), 77 Federal Register, at 12402

⁶ Each of the areas for which the FOQ ARC proposes offering credit include a combination of knowledge (academic) and flight training or experience. The proposed four- year aviation degree + Commercial pilots Certificate is identical in that it also requires a combination of knowledge (degree) and flight training (commercial pilot certification).

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NATA Comments on EPA Underground Tank Rule

Thu, 19 Apr 2012 10:22:00 GMT

April 16, 2012

EPA Docket Center (EPA/DC)

Mail Code 2822T

1200 Pennsylvania Ave. NW.

Washington, DC 20460

Submitted electronically via www.regulations.gov

RE: Docket # EPA-HQ-UST–2011–0301, Revising Underground Storage Tank Regulations—Revisions to Existing Requirements and New Requirements for Secondary Containment and Operator Training

The National Air Transportation Association (NATA), the voice of aviation business, is the public policy group representing the interests of aviation businesses before Congress, federal agencies and state governments. NATA's 2,000 member companies own, operate and service aircraft. These companies provide for the needs of the traveling public by offering services and products to aircraft operators and others such as fuel sales, aircraft maintenance, parts sales, storage, rental, airline servicing, flight training, Part 135 on-demand air charter, fractional aircraft program management and scheduled commuter operations in smaller aircraft. NATA members are a vital link in the aviation industry providing services to the general public, airlines, general aviation and the military. NATA’s Airline Service Council (ASC) represents local, regional, state and international aviation service providers that operate at 425 airports in 67 countries. ASC member companies are an integral component of the national air transportation system (NAS) offering a broad range of airline- and airport-related services, including aircraft refueling.

With this Notice of Proposed Rulemaking (NPRM), the U.S. Environmental Protection Agency (EPA) intends to modify the1988 underground storage tank (UST) technical, financial responsibility, and state program approval regulations. As part of this rulemaking, the EPA also proposes removing the deferral for Airport Hydrant Fuel Distribution Systems (AHFDS) contained in the 1988 regulations. The removal of this deferral would subject hydrant systems at certain U.S. commercial service airports to the UST regulations proposed in this NPRM.

NATA is very concerned with the EPA’s proposed removal of the deferral of AHFDSs. This concern arises from the fact that, while the EPA appears to believe that this rulemaking will have little effect on commercial service airports, industry evaluations of the scope of this rulemaking indicate that the universe of affected commercial service airports could be 300-400 percent larger than estimated by the EPA. Due to the nature of operations at commercial service airports, as well as their role in the national airspace system, such a “grey area” in scope of applicability and impact is intolerable.

Scope of Affected Commercial Service Airports

This rulemaking contains virtually no information on the EPA’s processes for determining the number of commercial service airports that would be affected by the removal of the deferral for AHDFs. The Assessment of the Potential Costs, Benefits, and Other Impacts of the Proposed Revisions to EPA's Underground Storage Tank Regulations[1] contradicts itself by indicating that there only two commercial service airport hydrant systems meeting the definition of a covered AHFDS and also stating that military hydrant systems represent 100 percent of the possibly regulated AHFDS. No information is provided on the methodology by which the EPA reached either of these contradictory assertions. In the case of the assertion that two commercial service airports would be regulated, no information is provided regarding even to which airports the agency is referring.

The unsupported conclusion, that commercial service airports would not be affected by this rulemaking, permeates this rulemaking as the EPA assumes that virtually all regulated AHFDS will be at military facilities and thus tailors its discussion of the rule to those facilities. The EPA’s assumption is also illustrated by the statement that “Nearly all airport hydrant systems are owned by the federal government.”[2] This statement represents another contradiction as the aforementioned regulatory analysis documents indicate that roughly 20 percent of all hydrant systems are located at commercial service airports, which are not owned by the federal government.

While the EPA’s reliance upon an undocumented critical assumption combined with what appears to be a general lack of understanding of commercial service airport hydrant systems calls into question the decision to include removal of the deferral for AHFDSs in this rulemaking, the decision appears even more ill-considered in the light of industry evaluations that assert many more commercial service airports may be regulated.

In its comments to the docket, Airlines for America (A4A) concludes that at least seven other commercial service airport hydrants systems may be regulated once the deferral is removed. The difference between A4A’s assessment and the EPA’s own assessment of the number of commercial service airports affected is directly related to the lack of information and interpretation available in this rulemaking and the associated docket. In addition to the information available in this rulemaking being unhelpful in assessing the scope of applicability, the EPA’s actions have added to the uncertainty. In February 28, 2012, more than three months after the NPRM’s publication in the Federal Register, the EPA posted a revised schematic to the docket that attempted to address how the layouts of various hydrant systems would be regulated. In addition to demonstrating the EPA’s lack of forethought regarding airport hydrant systems at commercial service airports, the revised schematic also still leaves uncertain how the EPA would regulate certain other existing hydrant system layouts.

NATA believes that the EPA’s failure to support its assumption that commercial service airports would be largely unaffected by this rulemaking along with the existing ambiguities in how the definition of an AHFDS would be applied to those airports are sufficient to advise against removing the deferral for AHFDS. Furthermore, when that failure and the existing ambiguities are paired with the vital role that commercial service airports play in our integrated NAS the decision to remove the deferral at this point is unsupportable.

Impacts of Removing the Deferral for AHFDS

The EPA has, based upon its unsupported assertion that commercial service airports would be largely unaffected by this rulemaking, provided no analysis of how the removal of the deferral for AHFDS could affect commercial service airport operations. In light of the issues raised in these and other industry comments NATA believes that the EPA must assess the impact of removing the deferral for AHFDs on commercial service airports.

The impact of removing the deferral for AHFDs on commercial service airports, unlike that at other facilities regulated by the EPA underground storage tank (UST) rules, is defined as much by effect on operations as by cost of complying with rule components. Commercial service operations revolve around the ability to handle traffic flow efficiently, a significant component of which is fuel delivery. Disruptions to hydrant system operations resulting from compliance with the UST rules would lead to flight delays and possible cancellations. The integrated nature of our NAS means that disruptions occurring at a single airport can quickly cascade through the entire system.

According to the FAA, commercial operations represent more than 5 percent of the U.S. gross domestic product and 10 million jobs[3]. In 2011, over 700 million individuals utilized air travel from commercial service airports[4]. Basing its rationale upon the undocumented assumption that commercial airports would be largely unaffected by this rulemaking, the EPA has not made any attempt to gain even the most basic understanding of how the proposed rules could affect airport operations and the NAS.

Recommendation

In this rulemaking, the EPA has relied upon unsupported conclusions contradicted by recent industry analysis that commercial service airports would be largely unaffected by the removal the deferral for AHFDs as reasoning not to investigate fully the feasibility and impact of compliance for these airports. The ambiguities inherent in this rulemaking combined with lack of in-depth assessment of impact on commercial service airports present significant dangers to these airports.

NATA does not believe that the EPA can proceed on sound footing with removing the deferral for AHFDS. NATA further believes that the investigation and documentation required to determine adequately the scope of commercial service airports affected by the removal of the deferral along with the impacts (including airport and NAS operations) of complying with the UST rules necessitate a separate rulemaking process.

NATA respectfully requests that the EPA withdraw the proposal for removing the deferral for AHFDS from this rulemaking. NATA would be pleased to work closely with the EPA in a separate rulemaking process that evaluates the effectiveness and need for withdrawing the AHFDS deferral while accounting for the unique and diverse nature of airports and their operations.

Sincerely,

Michael E. France

Director, Regulatory Affairs

[1] Docket # EPA-HQ-UST–2011–0301-0191

[2] 76 Fed. Reg. at 71730

[3] http://www.faa.gov/air_traffic/publications/media/FAA_Economic_Impact_Rpt_2011.pdf

[4] http://www.transtats.bts.gov/data_elements.aspx?data=3

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NATA Comments to FAA on Clarification of Policy Regarding Approved Training Programs

Wed, 29 Feb 2012 16:16:00 GMT

February 27, 2012

Docket Operations, M-30
U.S. Department of Transportation
1200 New Jersey Avenue, SE
Room W12-140, West Building Ground Floor
Washington, DC 20590-0001

Delivered electronically via www.regulations.gov

RE: Docket No. FAA-2011-1397, Clarification of Policy Regarding Approved Training Programs

We commend the Federal Aviation Administration (FAA) for issuing this guidance in a draft format and accepting comments. Overall, while NATA believes that the proposed notice provides much needed clarity and is a good step toward ensuring consistency for training and evaluation of newly hired crewmembers at Part 135 on-demand operators, there are areas where further information and guidance is necessary.

Recognition of Prior Approval

The key issue the draft notice addresses is the appropriateness of training programs that include the ability for an air carrier hiring a new pilot to obtain "credit" for prior training and/or evaluations conducted by a different Part 135 certificate holder, thereby reducing the training and evaluations that must be conducted by the hiring carrier prior to placing a pilot into service. The agency establishes that provisions permitting such credit are contrary to the regulatory requirements. NATA appreciates that the FAA acknowledges that, despite the fact that programs providing for a transfer or credit for prior training and checking are now deemed inconsistent with current training program policy, numerous FAA Principal Operations Inspectors (POI) have authorized programs with these elements for hundreds of operators.

Timeline

The efforts and timeline described in the notice to rectify the situation appear to be reasonable. Specifically, following a POI’s review of an operator’s program if the POI determines revisions are necessary, the FAA intends to permit operators up to 12 months to revise and re-submit the training programs for approval. NATA believes this is a fair amount of time for operators to respond.

Retraining Not Required

NATA appreciates the FAA affirmatively stating that retraining of affected crewmembers is not generally required. Given that the training programs now in question were specifically approved by inspectors nationwide and were used for the training of hundreds or perhaps thousands of pilots, many of who have subsequently received other training (e.g. recurrent) with the certificate holder, it would be inappropriate to call into question their legal status as crewmembers.

Planned v. Programmed

Another point of emphasis in the draft notice is the distinction between "planned" and "programmed" hours. NATA believes the reiteration that Part 135 training programs are based upon planned hours (not the Part 121 fixed "programmed" hours standard) is key to understanding the flexibility not only for the reduced hour training program outlined by the agency notice, but is also an important point for inspectors and Part 135 operators in general. Operators often have reported to NATA that their POI is demanding certain minimum hours of training be completed. As stated in the notice, the Part 135 training standard is that the proficiency and knowledge of a crewmember is certified (by the instructor/supervisor/check airman) upon completion of the required training or evaluation.

Reduced Hour Training Curriculum

The Reduced Training Hour Curriculum (RTHC) articulated in the notice is an important element for the industry and, while other guidance has alluded to the potential for such programs, having this ability specifically articulated is welcome. In developing a reduced training hour program, NATA believes it will benefit both industry and inspectors for there to be a clear understanding of what potential maximum reduction in training hours could be achieved, given the appropriate entry prerequisites.

NATA believes that the minimum baseline for a new hire crewmember should be defined within the guidance to ensure that approval of RTHCs is consistent nationwide. It would be a disservice to the industry for operators to devote the time and resources to creating a RTHC consistent with programs approved for similar carriers only to have their POI reject the program over a personal belief that the reduction is "too much." A lack of a clear maximum reduction policy could easily lead the agency and industry to the point we are at now – inconsistent application of training program requirements that necessitates yet another national level review and new guidance.

NATA suggests that for a well-qualified crewmember (e.g., current and qualified in the aircraft, in the duty position desired, with current comparable Part 135 experience) the RTHC would include training in all the certificate holder-specific modules (i.e., basic indoctrination, HAZMAT, etc.) all written tests and performance of the required evaluation/checks, but that additional hours of instruction (ground or flight) would not be a required element for the RTHC. In the event of a failure of a test/evaluation the operator’s existing program requirements for requalification would be followed.

Further, NATA recommends that the FAA indicate that there is no maximum number of RTHCs that an operator could have approved. NATA anticipates that many operators may have three to four RTHC’s. To ensure this is clear and to help POIs anticipate potential programs they may be asked to approve, NATA suggests that the FAA include a list of "possible" curriculums that an operator may submit. This list could include, among other examples:

1. New crewmember with previous Part 135/Part 91K experience in the same duty position, without previous aircraft experience

2. New crewmember without previous Part 135/Part 91K experience, with previous experience in the aircraft to which the crewmember will be assigned

3. New crewmember with previous Part 135/91K experience, without previous experience in the aircraft to which the crewmember will be assigned.

For the purposes of establishing eligibility prerequisites for entry to a particular RTHC, NATA believes that the similarities in operational regulations between Part 135 and Part 91K are sufficient to allow either to serve as suitable experience for entry to an RTHC and requests that the FAA so state in the final notice.

Gap Analysis Based Option

NATA also recommends that the FAA include provisions for a "gap analysis"-based program for operators. A letter to a Part 135 operator dated January 28, 2010, and signed by Director, Flight Standards Service John Allen, states that a side-by-side comparison between two programs, could allow for some prior training to be accepted by a new employer.

Under certain controlled conditions we do, however, believe that some training, specifically systems training … may be creditable.

For one operator to accept the training conducted under another operator’s approved curriculum, without first conducting a side-by-side comparison designed to identify the differences between curriculums, is not consistent with sound operating practices.

The statements in that letter, attached herewith, establish that, in circumstances where a true side-by-side gap analysis can occur, indeed there could be additional leeway granted to the hiring carrier with regard to what specific training, testing and evaluations are required for a new hire pilot.

If a current or prior carrier provides its training program to the hiring carrier, a gap analysis could be performed that would permit the meaningful comparison described in Mr. Allen’s letter to occur. In such a program, the necessary differences training could be determined and provided to the crewmember. The hiring air carrier would still need to complete the required training that is not eligible for reduction as well as flight evaluations/checks with the crewmember.

One of the biggest potential economic impacts posed by this action is on the so-called contract pilot who may work for multiple air carriers on an ad hoc basis. Utilization of a contract pilot by a Part 135 operator requires substantial coordination with other carriers for whom the pilot works to ensure compliance with numerous regulations, such as total commercial flight hour limits among others. In these work arrangements, the carriers are already engaged in communications, and it is not unreasonable to believe that they would be willing to share their training programs with each other to ensure that the contract pilot is properly training and able to continue working for each operator. The benefit of such a program was acknowledged by Mr. Allen in his 2010 letter and should be incorporated into the final notice. This approach to analyzing training between operators could, and should, also be extended to other training events (i.e., recurrent) to continue to permit what has been a successful and safe employment choice for some pilots.

Negative Consequence Possible

An area of concern for NATA is that the FAA may not have fully considered a significant, and likely unintended, consequence of the training program changes required by the notice. From a regulatory standpoint, simulator-based training for Part 135 is optional. It is highly likely that some number of operators will conduct training and/or evaluations in the aircraft rather than in a simulator as a result of this FAA notice. For economic reasons or because a training center may not elect to provide a particular service, there may well be some movement away from simulator-based training and checking. This would be unfortunate and certainly not the agency’s goal.

The value of simulation-based training is well-known and the FAA must use caution as it proceeds in this area. Part 135 pilots will likely work for several air carriers, far more than their Part 121 counterparts, during their career. This movement within the industry means that a Part 135 pilot will be subject to many initial new hire training courses, theoretically all but the first reduced in some way, but nonetheless multiple training events will occur where prior to this notice some credit for prior experience may have been awarded. The potential economic impact on operators is significant, and for some operators in certain hiring situations it may make more sense to provide all the training "in house" using the aircraft, forgoing simulation altogether until perhaps the pilot is due for recurrent. NATA urges caution and careful consideration when the FAA imposes new mandates on the industry that could have the consequence of driving operators away from simulation for training and checking events.

The relationship between operator, POI, training centers and their TCPMs is elaborate and at times unnecessarily burdensome for all involved. In 2011, NATA participated in an FAA-chartered Aviation Rulemaking Committee that recommended the FAA review the relationship between Part 135 carriers and the Part 142 training centers. NATA reiterates its support of that recommendation and encourages the FAA to dedicate the resources necessary to pursue a meaningful review, with industry participation, that would allow for improvement of these complex relationships while enhancing the training ultimately provided to crewmembers.

Sincerely,
Jacqueline E. Rosser
Director, Regulatory Affairs

1. The Flightcrew Member Training Hours Requirement Review ARC submitted its final recommendations to the FAA in May 2011

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NATA Comments to FAA on Authorization to Use Lower Than Standard Takeoff, Approach and Landing Minimums at Military and Foreign Airports

Fri, 10 Feb 2012 14:58:00 GMT

February 10, 2012

Docket Operations, M-30
U.S. Department of Transportation
1200 New Jersey Avenue, SE
Room W12-140, West Building Ground Floor
Washington, DC 20590-0001

Delivered electronically via www.regulations.gov

RE: Docket No. FAA-2012-0007, Authorization To Use Lower Than Standard Takeoff, Approach and Landing Minimums at Military and Foreign Airports

The National Air Transportation Association (NATA), the voice of aviation business, is the public policy group representing the interests of aviation businesses before Congress, federal agencies and state governments. NATA’s 2,000 member companies own, operate, and service aircraft. These companies provide for the needs of the traveling public by offering services and products to aircraft operators and others such as fuel sales, aircraft maintenance, parts sales, storage, rental, airline servicing, flight training, Part 135 on-demand air charter, fractional aircraft program management and scheduled commuter operations in smaller aircraft. NATA members are a vital link in the aviation industry providing services to the general public, airlines, general aviation, and the military.

NATA represents more than 800 on-demand air charter carriers operating under Part 135 regulations. The association supports this direct final rule to permit eligible carriers to utilize lower than standard minimums at military and foreign airports.

The rule change will permit those operators that obtain authority for lower than standard minimums operations at U.S. airports to have the same authority at foreign and military airports. As noted by the agency in the rule discussion, similar authority already exists for Part 121 air carriers and Part 91 operators. Permitting Part 135 carriers this same ability, subject to issuance of the proper Operations Specification, will not have an adverse impact on safety and should pose positive economic benefits due to the elimination of delays experienced when an aircraft must delay departure until weather conditions improve to at least “standard” conditions.

NATA appreciates the Federal Aviation Administration’s timely response to this issue and welcomes the implementation of this regulatory change.

Sincerely,

Jacqueline E. Rosser
Director, Regulatory Affairs

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Notice of Proposed Rulemaking: Pilot Loading of Navigation and Terrain Awareness Database Updates

Mon, 19 Dec 2011 14:15:00 GMT

December 19, 2011

Docket Operations
M-30
U.S. Department of Transportation
1200 New Jersey Avenue, SE
Room W12-140
West Building Ground Floor
Washington, DC 20590

Delivered electronically via www.regulations.gov

RE: Docket No. FAA-2011-0763; Notice No. 11-05

Notice of Proposed Rulemaking: Pilot Loading of Navigation and Terrain Awareness Database Updates

NATA applauds the Federal Aviation Administration (FAA) for initiating this rulemaking to permit pilots, under specified conditions, to update databases for navigation and terrain awareness equipment and supports the concepts contained in the Notice of Proposed Rulemaking (NPRM). The FAA’s assertions that allowing pilots to perform these updates, in lieu of certificated mechanics or repair stations, will provide both operational and safety benefits. Part 135 on-demand operations frequently embark or disembark passengers at airports where the certificate holder does not have staff or facilities and where qualified maintenance services may not be reasonably available. Permitting database updates to be performed by properly trained pilots will reduce costs for operators and improve the safety of operations because flights will occur with the most current database information loaded.

Over the last few decades, technology advances have led us to the point where the regulations should be adapted to recognize the state of modern technology. In the past, database updates required special tools and, potentially, disassembly or removal of the system. Today, as noted by the FAA in the NPRM’s preamble, updating the databases is as simple as loading a memory card into a digital camera.

Therefore, in support of and to improve the proposed rules, NATA offers the following additional comments.

General Aviation and Part 135 Aircraft are Similarly Equipped

General aviation (i.e. Part 91) operators have had the ability for pilots to perform updates for several years without any known problems. Contrary to the FAA’s preamble statement that the navigational systems installed in general aviation (GA) aircraft are not similar to those installed on aircraft operated under Part 135 (see 76 FR 64861), the experience of our members is that the systems on GA and Part 135 on-demand aircraft are in fact largely the same.

Conditions and Limitations Imposed

Because pilots in the GA community have successfully completed these updates, NATA believes it is appropriate for Part 135 pilots to have this ability also. In recognition of the higher standards required of commercial operators, NATA believes that the proposed requirements for provision of specific written procedures and recordkeeping, in proposed § 43.3 (k) (2) and (4) respectively, are appropriate. Further, the restrictions proposed in § 43.3 (k) (1) and (5), specifically that updates that do not require disassembly of the unit and that the data uploads do not contain operating software revisions, are also appropriate at this time.

With regard to the requirements for the database medium, articulated at proposed § 43.3 (k)(3), NATA believes that it is the FAA’s intent that such medium be "in a field-loadable configuration that…[is] non-volatile…[and] non-corruptible upon loading…." However, the inclusion, in the regulatory text, of examples of current media types meeting the FAA’s intent may eventually be viewed as limiting as new media and data transfer technologies are developed. In order to allow this rule to retain the ability to apply to new technologies, NATA recommends that the FAA remove the examples from the proposed § 43.3 (k)(3) as indicated in the "Proposed Revision" section found later in these comments.

Location as a Defining Condition

In the changes proposed by FAA, the location of equipment is used as defining criteria for applicability of the rule. Under the language proposed by the FAA, pilots would only be allowed to perform updates on self-contained, front instrument panel-mounted and pedestal-mounted database systems. NATA believes this equipment location-based criteria is faulty as equipment location is not necessarily reflective of the ease with which updates are performed. Prohibiting a pilot from performing an update on a system where the update upload point is located in a pilot-accessible area other than the front panel or pedestal serves no safety purpose. NATA suggests that the FAA focus on the accessibility of the database upload point to the pilot as part of their normal duties rather than actual location of the database system.

NATA recommends striking "self-contained, front instrument panel-mounted and pedestal-mounted…" from the proposed 43.3(k)

Proposed Revisions (deletions ~~strikethrough~~, additions italicized)
(deletions , additions )
§ 43.3 Persons authorized to perform maintenance, preventive maintenance, rebuilding, and alterations.

* * * * *

(k) The holder of a pilot certificate issued under Part 61 of this chapter may perform updating of ~~self-contained, front-instrument panel-mounted and pedestal-mounted~~ air traffic control(ATC) navigational system databases(excluding those of automatic flight control systems, transponders, and microwave frequency distance measuring equipment (DME), and any updates that affect system operating software) provided—

(1) No disassembly of the unit is required;

(2) The pilot has written procedures available to perform and evaluate the accomplishment of the task; and

(3) The database is contained in a field-loadable configuration ~~and imaged on a medium, such as a Compact Disc Read-Only Memory (CD–ROM),Synchronous Dynamic Random-Access Memory (SDRAM), or other~~ that is nonvolatile ~~memory that~~ and contains database files that are non-corruptible upon loading, and where integrity of the load can be assured and verified by the pilot upon completing the loading sequences.

(4) Records of when such database uploads have occurred, the revision number of the software, and who performed the upload must be maintained.

(5) The data to be uploaded must not contain system operating software revisions.

Clarification on Applicability of §§ 91.1443 (b)(3) and 135.443(b)(3)

To date, the FAA has issued exemptions to several Part 135 on-demand operators that authorize pilots to perform navigational database updates. It has come to our attention that there may be some confusion as to whether these pilot-performed updates still require an airworthiness release executed by an authorized certificate mechanic or repairman as described in §§ 91.1443 (b)(3) and 135.443(b)(3).

As requiring such a signoff following an update and prior to flight would essentially negate the benefits intended by the FAA in those exemptions and this rulemaking, and in consideration of the fact that the proposed rule removes database updates from the "maintenance" category, NATA believes that the recordkeeping proposed by § 43.3 (k)(4) is sufficient and that §§ 91.1443 (b)(3) and 135.443(b)(3) as they apply to logbook entries do not apply in this instance. NATA requests that the FAA ensure this is clearly explained in the final rule to prevent any misunderstanding.

Economic Impact on Repair Stations

NATA is concerned that the NPRM’s preamble states that the rule, if adopted, could, "have a negative economic impact on certificated mechanics and repair stations that currently perform required updates for affected operations." (76 FR 64860) Shifting the classification of updates to navigational databases for air carrier aircraft from a function requiring authorized maintenance personnel to a pilot-performed function could indeed lead to air carriers no longer hiring authorized maintenance providers to perform navigational database updates. However, NATA fails to see the relevance to the analysis of this proposed rule change of that possibility. When the FAA proposes new regulations affecting air carrier aircraft that require actions by authorized maintenance personnel, the agency does not consider as a benefit the fact that certificated mechanics and repair stations will get more work. Therefore doing the opposite, considering, as a cost, the loss of business when the FAA deems a requirement is no longer applicable or necessary, should not occur either. Doing so would create a structural discouragement to modifying existing rules that have become out of date and no longer needed. For this reason, NATA believes that the FAA should not include this line of consideration in this rulemaking project.

Conclusion

As new aircraft and avionics technologies continue to be developed, the FAA will be challenged in many areas to ensure that its regulations do not become an outdated burden on aircraft operators. With this rulemaking, the FAA has acknowledged one of those situations and acted decisively to adapt to new, advanced technologies. NATA appreciates the opportunity to comment on this NPRM, and believes that the suggestions contained herein will enhance the agency’s objective of safely allowing the adoption and use of new technology.

Sincerely,

Michael France
Director, Regulatory Affairs

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NPRM Safety Management Systems For Certificated Airports

Thu, 09 Jun 2011 10:35:00 GMT

June 5, 2011

Docket Operations, M-30
U.S. Department of Transportation
1200 New Jersey Avenue, SE
Washington, DC 20590

RE: Docket Number FAA-2010-0997, Notice of Proposed Rulemaking, Safety Management Systems for Certificated Airports

Submitted electronically via www.regulations.gov

With this rulemaking, the Federal Aviation Administration (FAA) proposes changes to Title 14 of the Code of Federal Regulations, Part 139 (Part 139) that would require airports certificated under that part to develop and implement a safety management system (SMS). The proposed changes to Part 139 include required components and functional processes of the required SMS. NATA appreciates the opportunity to provide comments on these proposed changes.

Multiple Rulemaking

Currently, the FAA has two separate and distinct SMS rulemaking projects underway: this rulemaking that proposes to apply an SMS standard to airports certificated under Part 139, and rulemaking that would establish a new 14 CFR Part 5 and apply an SMS standard to 14 CFR Part 121 air carriers. Other certificated entities, such as 14 CFR Parts 135 and 145, will be included in the new Part 5 at some future date. The objectives and purposes of these separate rulemaking projects are nearly identical: to create an International Civil Aviation Organization-compliant SMS regulatory standard and apply that standard to a certificated entity. The only difference in the objectives and purposes of these two separate rulemaking projects is the certificated entities to which they are applied. The FAA acknowledges in both rulemakings that the SMS regulatory standard must be scalable and adaptable enough to account for the many differences in the certificated entities’ operations.

NATA agrees with this approach and believes that the very nature of SMS as an operational process supports this approach. Therefore, NATA questions the agency’s decision to pursue two distinctly separate regulatory SMS standards. If this approach is carried through to the conclusions envisioned in the rulemakings, all certificated entities will be subject to the Part 5 SMS standard except airports certificated under Part 139, which will be subject to the SMS standard found in 14 CFR Part 139. The interconnected nature of aviation operations does not support this approach, nor does the nature of SMS as an operational process support the idea of multiple standards.

NATA strongly recommends that these separate SMS rulemakings be suspended, combined and reissued as a new single SMS regulatory standard.

Tenant Oversight

Airport sponsors have always retained some level of oversight, regarding safety, to tenant operations; however, this rulemaking seeks to push airport sponsors to assume the primary role for safety, including tenant “employee safety, ground vehicle safety, and passenger safety to the extent they are related to aircraft operations”

This rulemaking proposes requiring airport sponsors at airports certificated under Part 139 to develop and implement an SMS that is applicable to “aircraft operations in the movement area, aircraft operations in the non-movement area, and other airport operations addressed in this part.” The FAA clearly intends for the SMS requirement to extend to areas leased to businesses such as fixed base operators (FBO), maintenance facilities and flight schools: the SMS requirement “would apply to the entire non-movement area regardless of lease arrangements. There is the potential for an airport to update its airport rules and regulations, revise clauses in lease agreements at their next renewal cycle, and renegotiate lease agreements where appropriate.”

NATA strongly disagrees with the FAA’s vision for SMS in regards to airport tenants. Under this proposal, the FAA firmly inserts the airport operator into a tenant’s business operations. Airport operators would be required to implement safety risk management (SRM) processes in business operations in which the airport operator has little or no experience. While the FAA repeatedly

refers to the ability of the airport operator to scale and adapt SMS to its particular situation, SRM processes require certain mandatory components, including:

Identify safety hazards
Ensure that mitigations are implemented where appropriate to maintain an acceptable level of safety
Provide for regular assessment of the safety level achieved
Aim to make continuous improvement to the airport’s overall level of safety
Establish and maintain a process for formally documenting identified hazards, their associated analyses, and management’s acceptance of the associated risks

Fulfillment of these basic requirements would require a significant change in the airport operator / tenant business relationship. The airport sponsor would need to become an integral participant in the business’s day-to-day activities, monitoring safety and evaluating risks. Any change in the business’s operational model, procedures or policies would need to be evaluated by the airport prior to being instituted. If, in the airport’s sole determination, a proposed change, such as staffing levels, is determined to present a risk, the airport could prohibit that change. In the SRM process conducted upon airport-owned and operated areas, such as the movement area, the determination of final risk for any given hazard, mitigation, or implementation of mitigation would be left to the discretion of the certificate holder. Tenant business would not receive the same discretion; rather, they would be required to submit to the airport operator’s decisions. Airport operators, since they would most likely pass on the cost of mitigation to the tenant business, would be far more likely to determine that a hazard represented a risk in need of mitigation, and then outline mitigation implementation for the tenant to ensure the airport did not take on additional liability. The purpose of an SMS is to elevate safety concerns to the equivalent of any other process a business must manage. This proposal will require airports to make ongoing executive level business decisions for airport tenant businesses. The businesses that operate our nation’s FBOs, maintenance facilities, and flight schools are the experts best placed to ensure, and incentivized to ensure, the safety of their own operations. Replacing that authority with that of the airport operator is likely to reduce safety and create excess burden on the airport tenant.

NATA recommends that this rulemaking be modified to exempt from the airport’s SMS oversight areas exclusively leased for use to tenant businesses.

Regulatory Authority of SMS Rule
The FAA has clearly stated that enforcement of this proposed rule will be limited to “an evaluation of whether a certificate holder’s SMS is functioning as it is intended to function rather than as a means to second guess a certificate holder’s decisions.” NATA applauds the FAA for this approach. Without that commitment, a regulatory SMS standard becomes little more than a new rulemaking process that allows the implementation of regulatory requirements that bypasses the protections contained in the Administrative Procedures Act (APA) and numerous Executive Orders. While NATA is pleased to see the FAA’s commitment to a process-related enforcement scheme, we believe that that structure should be formalized in the regulatory changes made to Part 139.

NATA recommends that the text of the regulatory changes be modified to state specifically that a certificate holder is only required to implement risk mitigation if failure to do so would result in a violation of some other provision of Part 139 or other federal regulation. NATA believes that failure to do so could result in situations that violate existing federal law, procedure and policy.

Approval

With this rulemaking, the FAA has required that each Part 139 certificate holder “must develop and maintain an Airport Safety Management System that is approved by the Administrator.” The FAA has also stated that its enforcement mechanism will serve to ensure that “a certificate holder’s SMS is functioning as it is intended to function rather than as a means to second guess a certificate holder’s decisions.” In light of the FAA commitment to ensure that this proposed rule remains flexible and scalable, NATA questions the need for an approved document. The FAA’s concern is that a certificate holder has an SMS and that that SMS contains the required components.

NATA believes that the airport SMSs should be an accepted rather than an approved document.

Inspector Guidance and Training
Whether intended for airports or air carriers, one of the industry’s greatest concerns with SMS as a regulatory standard is the ability for the requirement to morph into a process by which new regulatory requirements are implemented. The FAA has stated that enforcement will be targeted at ensuring a certificate holders program is functioning, not at second guessing the certificate holders decisions. Key to implementing that policy will be the training and guidance provided to Airport Certification Safety Inspectors (ACSI). Without proper training and guidance to ACSI, the FAA’s policy on enforcement could quickly change into one of second guessing decisions made by airports.

NATA requests that industry be briefed on and allowed ample opportunity to comment on ACSI training programs and guidance relating to airports SMS.

Closing

NATA supports the FAA’s efforts to enhance aircraft and airport safety. While NATA fully supports SMS implementation as a voluntary measure, we do believe that regulatory implementation of SMS presents some serious challenges. NATA submits these comments to assist the FAA in overcoming these challenges and looks forward to working with the agency to advance aviation safety.

Michael France
Director, Regulatory Affairs

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NATA Comments To DOT On: Docket No. FAA–2010–0247, Safety Enhancements Part 139, Certification of Airports

Fri, 13 May 2011 12:15:00 GMT

May 13, 2011

U.S. Department of Transportation
1200 New Jersey Avenue, SE
Washington, DC 20590

RE: Docket No. FAA–2010–0247, Safety Enhancements Part 139,
Certification of Airports

NATA appreciates the opportunity to comment on these proposed regulations. Of the three distinct components of this proposed rule, NATA’s comments are limited to the proposal to require airports certificated under 14 CFR 139 to provide training for individuals with authorized access to the airport non-movement area.

NATA agrees with the Federal Aviation Administration (FAA) assessment that “non-movement area safety can be improved with increased training.” NATA has long been a proponent of training for line service personnel and others working in the airport non-movement area. NATA’s Safety 1st Professional Line Service Training Program (PLST) is currently utilized by over 300 on-airport businesses to train more than 3,000 employees working in airport movement and non-movement areas. It is our belief that this proposed rule will continue to build upon industry and government efforts to increase airport safety.

Comments

FAA proposes to exempt “Airmen exercising the privileges of an applicable airman certificate” from the requirements to have received non-movement area safety training. NATA concurs with this exemption and believes that the FAA’s intent is to allow an airman to have unescorted access throughout the course of exercising applicable airman privileges and associated tasks. However a strict reading of the regulatory language could lead to interpretations such as: a pilot who has not received safety training may not walk, unescorted, through the non-movement area to get to his or her aircraft, since walking through the non-movement area is not a privilege associated with an airman certificate. NATA believes a simple statement of clarification in the final rule preamble will help to clarify the FAA’s intent.

The FAA proposes to require annual retraining of all individuals with unescorted access to the non-movement area. NATA believes that the costs associated with annual retraining do not justify the small additional benefits from such frequent retraining. NATA, through its own research and development process, has adopted a two-year recertification process for our Safety 1st PLST. Our experience has taught that too frequent retraining on basic tasks not only provides little benefit for the additional cost, it also can lead to a negative attitude towards the training by trainees as they feel forced to repeat “unneeded” training constantly. NATA requests that the FAA adopt a two-year retraining cycle for non-movement training.

The FAA has asked for comments on the Regulatory Flexibility Determination contained within the NPRM. NATA believes that the mitigations provided by the FAA will offset a portion of the cost of this rulemaking. However, NATA also proposes that airports be permitted to accept training meeting the requirements of §139.303 (g)(3) that is provided by tenants to their own employees as sufficient to allow unescorted access to the non-movement area. Many airport tenant businesses already provide training to their own employees that either exceeds, meets or can be easily modified to meet the proposed regulatory requirements. Adopting this proposal will allow airports to take advantage of existing training programs, such as NATA’s Safety 1st PLST, without incurring the cost of providing duplicative training themselves.

NATA appreciates the opportunity to provide these comments and looks forward to continuing to work with the FAA to increase the level of safety and efficiency at our nation’s airports.

Sincerely,

Michael France
Director, Regulatory Affairs

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VIPR Inspections At Part 1542 Commercial Airports Ongoing

Tue, 10 May 2011 11:41:00 GMT

VIPR Inspections At Part 1542 Commercial Airports Ongoing
May 10, 2011

Over the last week, NATA has received reports of a number of visits by Visual Intermodal Prevention and Response (VIPR) teams at Part 1542 commercial airports. These inspections come as a result of enhanced security measures that have taken place around the country in response to the death of Osama Bin Laden.

Recently, NATA crafted a white paper outlining the makeup of these VIPR teams. To view NATA's white paper, please click here.

The purpose of VIPR teams is to "operate throughout the airport environment as an additional layer of security to enhance TSA's ability to prepare for, protect against, or respond to acts of terrorism and to protect persons, facilities, and critical infrastructure in all modes of transportation. VIPR teams are to consult with all transportation entities directly affected by the deployment of VIPR teams, as appropriate, including air carriers, airport operators, local security and law enforcement officials and fixed-base operators."

NATA members who encounter VIPR inspections should contact Eric R. Byer, NATA's vice president of government and industry affairs, at ebyer@nata.aero.

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Docket No.FAA-2002-11301, Antidrug and Alcohol Misuse Prevention Programs for Personnel Engaged in Specified Aviation Activities; Supplemental Regulatory Flexibility Determination

Tue, 10 May 2011 10:56:00 GMT

May 9, 2011

U.S. Department of Transportation
1200 New Jersey Avenue, SE.
Washington, DC 20590

RE: Docket No.FAA-2002-11301, Antidrug and Alcohol Misuse Prevention Programs for Personnel Engaged in Specified Aviation Activities; Supplemental Regulatory Flexibility Determination

NATA appreciates the opportunity to provide comment on this supplemental regulatory flexibility determination. NATA believes that this proposed regulatory flexibility determination lacks serious analytical rigor, fails to understand fully the diversity and depth of regulated parties and underestimates the costs imposed upon those parties. For those reasons, NATA posits that this proposed determination is materially insufficient to support its finding and should, therefore, be withdrawn until the administration is able to submit a serious analytical document for comment.

Analytical Rigor
NATA asserts that this proposed regulatory flexibility determination is flawed due to its lack of documented and supportable assumptions and conclusions. NATA points to the following issues within the proposed determination:

Over reliance on an unscientific survey – In describing the universe of regulated parties, the Federal Aviation Administration (FAA) has relied heavily upon a member survey conducted by the Aeronautical Repair Station Association (ARSA). The FAA provides no evidence (or even an assertion) that this survey was conducted with the appropriate level of analytical rigor to ensure that the resultant data is representative or even correct. NATA believes that treating an anecdotal survey as a primary source for describing and quantifying regulated parties is unacceptable and may very well represent a violation of the Regulatory Flexibility Act as well as other federal data quality standards and statutes.

General cost and salary assumptions – In determining impact, the FAA utilizes completely unsubstantiated assumptions relating to employee salaries, and supervisor-to-employee and instructor-to-employee ratios. The use of completely unsubstantiated assumptions alone makes the findings of this determination utterly unreliable.

Training and education assumptions – Again, the FAA makes assumptions without providing even an attempt at justification. The FAA has estimated training time required to meet the training standard contained within the rule as well as estimating the cost of establishing an educational program without any support.

Program development and maintenance – In this section, the FAA proposes that the establishment of a testing program will require 16 hours at an employee cost of $21 per hour. The FAA’s analysis of the impact of establishing a drug and alcohol testing program is a mere four sentences long and includes new unsupported assumptions and calculations.

Annual documentation – Again, in this section the FAA submits numerous unsupported cost and time assumptions.

NATA is very concerned with the near flippant approach the FAA has taken in regards to analytical rigor in completing this proposed regulatory flexibility analysis. The FAA’s failure to provide supporting and justifying data has led to the conclusions made in this determination being completely unreliable and useless in determining impact.

Regulated Parties
As outlined in the previous section, the FAA’s description of regulated parties is completely unreliable on data quality concerns alone. However, the FAA further demonstrates that its description of regulated parties is faulty by misclassifying a number of businesses as not ever needing a drug and alcohol program. The classification of the following NAICS codes as never requiring a drug and alcohol program is incorrect:

334511 - Rebuild electro-mechanical switches for aviation use

While the term “rebuild” under FAA definitions is a manufacturer-performed operation and, therefore, not subject to the requirements of the rules under consideration, many non-certified maintenance companies performing “maintenance” of aircraft parts consider their work to be classified as “rebuilding” (general meaning of the term) and, therefore, fall under this NAICS code and the FAA’s requirement to establish a drug and alcohol testing program.

541380 - Hydrostatic testing

A drug and alcohol testing program is required if operations performed under this NAICS code are performed as “maintenance” of an aircraft.

541380 – Inspection

A drug and alcohol testing program is required if operations performed under this NAICS code are performed as “maintenance” of an aircraft.

541380 - Non-destructive testing

A drug and alcohol testing program is required if operations performed under this NAICS code are performed as “maintenance” of an aircraft.

811310 - Precision grinding and testing of various fuel & hydraulic/pneumatic valve assemblies

A drug and alcohol testing program is required if operations performed under this NAICS code are performed as “maintenance” of an aircraft.

In addition to misclassifying a number of the NAICS codes, the FAA’s reliance upon the ARSA survey and the agency’s failure to conduct its own analysis of affected parties has led to other non-certified maintenance providers not being included as subcontractors. NATA members have pointed out that cabin entertainment repair facilities are not listed as a regulated party despite the fact that they are required to have a drug and alcohol testing program if they are performing maintenance.¹

Impact Analysis
In one calculation relating to impact, the FAA attempts to quantify cost on an employer when employees are taken from their jobs to perform the required testing and training under this rule. The FAA simply multiplies the employees’ computed (and unsupported) salary costs by the amount of estimated time for completing the task to find cost. This method fails to account for the majority of cost to the business. Employee maintenance labor is a fixed asset, every minute that an employee is required by regulation to be away from their assigned duties is lost labor revenue for their employer. Regulations that require maintenance personnel to spend time on other non-maintenance duties, such as testing and related training, reduces the number of billable labor hours that employees may perform in a given year and thus reduces the employer’s revenue. To monetize the impact upon a regulated party accurately, the FAA must account for the reduced revenue experienced by the employer rather than just the costs of employing an individual while he or she is undergoing testing and training.

Additionally the FAA completely fails to account for the costs associated with reduced availability of contractors and subcontractors due to the testing requirements.

Real world experience between the implementation of this rule and the FAA’s release of this supplemental regulatory flexibility analysis has shown that one of the greatest costs borne by regulated entities is the reduction of availability of contractor and subcontractor services. As local facilities choose not to perform aircraft and aircraft parts maintenance due to the drug and alcohol testing and training requirements, regulated parties are forced to ship work to non-local facilities, thus incurring shipping and delay costs. The FAA’s delay in releasing this determination puts the agency in the rare position of having actual impact data available to it for development of an accurate impact analysis. However, the FAA chose to rely on purely hypothetical calculations. NATA believes that federal requirements on data quality require the FAA to use the highest quality data that is reasonably available when making regulatory flexibility determinations. In this case, actual compliance data is available but the FAA made no effort to obtain that data.

Conclusion
NATA is concerned that the FAA has not given this regulatory flexibility determination the scrutiny and analytical rigor it deserves. NATA concurs with the FAA that the safety benefits of a drug and alcohol training and testing program are important but also believes that a comprehensive regulatory flexibility determination and analysis is vital. This determination falls well short of all established federal standards for data quality and is, therefore, an inadequate certification that the examined rules do not have a significant economic impact. NATA asks that the FAA withdraw this proposed determination and republish, as soon as practical, a comprehensive analysis that meets basic data quality and analytical rigor requirements. NATA further requests that the FAA use, as a basis for its determination, actual compliance cost data, since that will provide the best measure of economic cost.

Respectfully,

Michael France
Director, Regulatory Affairs

¹ It should be noted the FAA’s failure to grasp fully those regulated by the rule under consideration in this determination extends to the promulgation of the rule itself, whereby the FAA stated that it did not believe that cabin entertainment repair facilities would be required to maintain a drug and alcohol testing program. In actual practice, the FAA is requiring just that.

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Petition For Exemption; Summary Of Petition Received NetJets Aviation, Inc.

Mon, 02 May 2011 14:07:00 GMT

May 2, 2011

U.S. Department of Transportation,
1200 New Jersey Avenue, SE
Washington, DC 20590

RE: Docket #FAA-2010-1018, Petition for Exemption; Summary of Petition Received, NetJets Aviation, Inc.

NetJets Aviation Inc. (NetJets) has petitioned the Federal Aviation Administration (FAA) for a permanent exemption from the regulations contained in Title 14 of the Code of Federal Regulations, Part 43.3(g) (14 CFR 43.3(g)), that prohibit pilots from performing preventative maintenance, specifically updates to flight management system navigational databases, on aircraft used in operations under 14 CFR Part 135. NATA fully supports this request for exemption and asks that it be approved by the FAA without further delay.

Part 11 of Title 14 of the Code of Federal Regulations (14 CFR Part 11) sets forth the requirements for a petition for exemption from regulations. In the pertinent parts, 14 CFR Part 11 requires that the petitioners document:

Reasons for the petition for exemption
Why granting of the petition would be in the public interest
Reasons why granting the exemption would not adversely affect safety, or how the exemption would provide an equivalent level of safety

Reason for Petition
NATA believes that NetJets has fully explained the reasoning behind the request for exemption from 14 CFR 43.3(g). NATA concurs with the reasoning set forth in the petition. Aircraft flight management systems have experienced significant technological advances that have resulted in “simple user-friendly procedures for updating navigational databases” since the promulgation of 14 CFR 43.3(g). These technological advances are directly applicable to the aircraft and avionics systems used by NetJets.

Public Benefit
NATA supports NetJets’ assertion that approval of this petition will result in:

Reduced flight delays, airspace congestion, and carbon and other pollutant emissions
Reduction in maintenance positioning flights for the sole purpose of updating navigation databases
Allowance for operations that utilize RNAV procedures that cannot be performed without a current navigation database
Reduced cost to the general public for air transportation

It is NATA’s opinion that NetJets has conclusively demonstrated that granting this petition of exemption will provide benefits to the public.

Safety
At the center of any request for relief from regulatory provisions is the requirement that the petitioner demonstrate that a grant of exemption will not adversely affect safety or that an equivalent level of safety will be maintained. In its petition, NetJets points to the fundamental technological changes that have occurred with respect to flight management update procedures, its own pilot training and procedures for coordination with company maintenance personnel as evidence that an equivalent level of safety will be maintained if this exemption request is granted. NATA concurs with NetJets’ assessment.

Conclusion
With NetJets having fully demonstrated that its request for exemption from specific requirements of 14 CFR 43.3(g) provides benefits to the public and maintains an equivalent level of safety, NATA sees no reason why this petition should not be granted by the FAA. Due to the overall value provided to the public by granting this petition, NATA specifically asks that this petition be granted without delay.

Additionally, NATA believes that there may be other similarly situated aircraft operators who may petition for exemption from 14 CFR 43.3(g) on similar grounds. NATA recommends that, if the FAA receives additional similar petitions, those petitions should be granted and that the FAA should conduct an assessment to ensure that 14 CFR 43.3(g) is fully applicable to the current technological state of aircraft flight management and other aircraft systems. The greatest public benefit occurs when the FAA as an agency and its regulations are responsive to technological advances that make air transportation safer and more efficient.

Respectfully,

Michael France
Director, Regulatory Affairs

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Notice of Proposed Modification To The FAA/Subscriber Memorandum Of Agreement: Access To Aircraft Situation Display and National Airspace System Status Information (NASSI)

Fri, 01 Apr 2011 18:08:00 GMT

April 1, 2011

Docket Management Facility
U.S. Department of Transportation
1200 New Jersey Avenue, SE
Room W12-140
West Building Ground Floor
Washington, DC 20590

Delivered electronically via www.regulations.gov

RE: Docket No. FAA-2011-0183
Notice of Proposed Modification To The FAA/Subscriber Memorandum Of Agreement And Request for Comments, Access to Aircraft Situation Display (ASDI) and National Airspace System Status Information (NASSI)

In the Federal Aviation Administration’s (FAA) notice of proposed modification to the FAA/Subscriber Memorandum of Agreement (MOA), the agency announced its intention to alter its agreements with Direct Subscribers to Aircraft Situation Display (ASDI) and National Airspace System Status Information (NASSI) data to prohibit the blocking of aircraft flight information unless a “Certified Security Concern” exists.

NATA strongly objects to the proposed modifications to the MOA and submits the following comments in support of our position.

Proposed MOA Modifications are in conflict with the intent of Congress
Congress passed legislation that was signed into law by the President (P.L 106-181) specifically directing the FAA to provide a mechanism by which aircraft owners could select to have their data blocked. The intent of Congress in the legislation was to provide aircraft owners the ability to keep their movements private, with the FAA acting as the facilitator of blocking requests.

The law states that the FAA must require ASDI subscribers to be able to “selectively block” the data. The intent of including “selectivity” was so that aircraft owners could select to have their data blocked. The FAA now is attempting to assert that it is the arbiter of who is eligible for blocking — that the “selective” nature of the blocking is to be determined by the FAA alone. This was not the intent of Congress in establishing the right to block data. The FAA’s role has been and should continue to be one of facilitation between aircraft owners who wish to participate in blocking and the ASDI and NASSI subscribers.

Protection of Privacy Is Well-Established Policy
It is a fundamental principal of our society to protect the privacy of individuals. The FAA states it has determined that only certain individuals who are able to demonstrate a security concern to the FAA’s satisfaction are entitled to their privacy.

The FAA has not asserted that it is under any legal obligation to institute this change in policy; rather, the administration states that this proposed change is based upon a determination that it is in the best interest of the government and the general public. One would assume that this decision would be derived from a careful and considerate weighing of the value of the benefits provided to the government and general public as compared to the loss of individual privacy suffered by aircraft owners and operators. However, the administration fails to offer any substance as to the considerations involved in making this determination, depriving the public of the ability to comment upon the logic and soundness of this decision.

Privacy is a core value in American society, and the federal government has on numerous occasions acted to protect personal information from public dissemination. One example, of many, is the Driver’s Privacy Protection Act of 1994. This law was passed to restrict the ability to obtain personally identifiable information (name, address, etc.) from motor vehicle registrations. The net effect of this law is that one cannot determine the name and residence of a person based upon their license plate number. Congress acted to protect personal privacy and the right to move within the country without being identified and tracked by the public at large. The correlations between that law, related to motor vehicle registrations, and this circumstance are undeniable.

Laws require registration of a vehicle in order to operate it on public roads. Likewise, the FAA requires aircraft registration and filing of flight plans to operate in certain portions of public airspace. There is no discernable difference between disclosing personally identifiable information related to the operation of motor vehicles and aircraft.

The FAA asserts in the notice that “releasing registration numbers associated with visual display of flight would not reveal either the identity of the passengers or the purpose of the flight.” NATA could not disagree more. Because all aircraft owners are required to register their aircraft and that registration (including the owner’s name) is contained in an easily searchable electronic database that is available on the Internet, it would be quite easy for anyone to determine with some degree of accuracy exactly who is on a particular aircraft or why they may be going to a certain location.

In the case of private individuals who own aircraft, they may well be the pilot and only person who flies that aircraft. When the aircraft is owned and operated by a corporation, it is still possible to determine likely passengers and to discern private business plans based upon destination.

The fact that an individual is required by certain regulations to file a flight plan should in no way be construed by the FAA as a relinquishment of the individual’s right to privacy with regard to their movements. This has previously been the policy of the FAA with regard to blocking of aircraft data when requested by an owner. It is inconsistent with current federal policy for the FAA to act unilaterally to strip away privacy protections. Furthermore, it is inappropriate for the FAA to attempt to do so without providing a detailed explanation for its actions and soliciting public feedback on that rationale.

Proposed Standards For Blocking Eligibility Are Unreasonable
Under the FAA’s proposal, only persons who own an aircraft and who establish that they have “Valid Security Concern” would be eligible to have their aircraft data blocked from public ASDI and NASSI data-feeds.

The Valid Security Concern could be established by two methods:

An annual written Certified Security Concern is filed and approved by the FAA, or
The owner satisfies the bona fide business-oriented security concern criteria established by U.S. Department of Treasury regulations.

The FAA states that the aircraft owner/operator would need to demonstrate a “verifiable” threat and that a “generalized concern about safety” is insufficient to qualify. The FAA provides no further detail on how it would determine between a verifiable and generalized security threat. The FAA has no means even to begin to verify the significant number of filings that may occur, nor does it have appropriately trained and qualified staff who can decide which threats are sufficient to warrant blocking. It is of great concern to NATA that the FAA intends to establish itself as an authority on whether threats against an individual are serious. The FAA staff likely has little or no experience in security or law enforcement and the evaluation of threats against individuals. The consequence that someone whom the agency deemed did not have a “valid security concern” later being the victim of a crime does not seem to have been considered by the FAA.

Regarding U.S. Department of Treasury regulations, the bona fide business-oriented security concern rules relate to whether the costs for providing security measures (including transportation via a company aircraft) for certain employees may be excluded from the income of those employees. There is nothing that ties this standard to the existence of a valid or verifiable security concern.

The standards for blocking eligibility that the FAA is establishing are far too restrictive and subjective for effective and fair implementation.

FAA Fails To Address On-demand Air Charter Issues
In addition to the unsupported conclusion that there is a public benefit to releasing private data, the FAA has failed to consider the impact of the proposed MOA changes for air carriers operating under Part 135.

The FAA states in the proposed Section 9 of the MOA, “While commercial operators conduct business according to a published listing of service and schedule, general aviation operators do not.” Based upon this statement, either the FAA is unaware of the thousands of on-demand “commercial operators” that do not operate on a schedule or it is including Part 135 on-demand operators as part of “general aviation.” In either case, the FAA has clearly overlooked the impact on Part 135 air carriers in the notice.

Part 135 largely consists of ad-hoc charter operations. It is frequently used by those who seek a level of privacy and security that cannot be achieved by traveling on the scheduled airlines. To
prevent unwanted tracking of the clientele they serve, including current and former heads of state, Members of Congress and government appointees, as well as celebrities and other high-profile individuals, some Part 135 operators currently participate in the blocking program.

Under the proposed modifications, it is difficult to conceive that there are any circumstances where an aircraft operated by a Part 135 air carrier could meet the “Certified Security Concern” standard because these security-sensitive persons do not own the aircraft in question. The FAA intends to allow the blocking only for an aircraft owned by an individual who meets the proposed standard. The ability to block aircraft movement data would not follow that individual if he or she would have a need to charter an aircraft.

NATA believes it is inappropriate for the FAA to implement changes that will effectively prohibit blocking eligibility for every Part 135 operator without providing the industry with due consideration and a justification for exclusion from the blocking program.

Conclusion
NATA appreciates the opportunity to submit comments on this issue. We urge the FAA to withdraw the notice proposing modifications to the MOU between the agency and ASDI subscribers immediately.

Respectfully submitted,

Jacqueline E. Rosser
Director, Regulatory Affairs

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NATA Support For Petition For Rulemaking - Proposed Admendment To 14 CFR Part 61

Wed, 09 Mar 2011 14:41:00 GMT

February 18, 2011

U.S. Department of Transportation
Docket Operations
West Building Ground Floor
Room W12–140
1200 New Jersey Avenue, S.E., Washington, DC 20590

RE: NATA Support for Petition for Rulemaking dated January 31, 2011 – Proposed Amendment To 14 CFR Part 61

NATA wishes to express its enthusiastic support for the petition for rulemaking dated January 31, 2011, Proposed Amendment to 14 CFR Part 61 (hereafter “the petition”) and submitted by the Aircraft Owners and Pilots Association (AOPA), Experimental Aircraft Association (EAA), General Aviation Manufacturers Association (GAMA) and the National Association of Flight Instructors (NAFI). NATA’s support is based upon the association’s opinion that changes to 14 CFR Part 61 contained within the petition will have a positive effect on aviation safety and the growth of the pilot population.

Purpose and Summary of the Petition

The purpose of the position is to remove the regulatory roadblock that prevents pilots from crediting any of the training they received while pursuing a sport pilot certificate towards additional ratings and certificates. The remedy proposed by the petition accomplishes this purpose by recognizing the three distinct and separate training requirements for a recreational and private pilot certificate:

Aeronautical Knowledge
Flight Proficiency
Aeronautical Experience

By recommending small changes to language of the aeronautical experience requirements for both the recreational and private pilot certificate, the petition allows for the crediting of overall experience, specifically that experience gained while pursuing a sport pilot certificate, while leaving intact the rigorous requirements for instruction, both in content and provision, in aeronautical knowledge and flight proficiency.

Justification for Support

NATA believes that the current FAA policy of not allowing the crediting of experience gained while pursuing a sport pilot certificate towards additional certificates and ratings creates a disincentive for currently certificated sport pilots to receive training for additional ratings and certificates. This disincentive is created by treating, from a certification standpoint, a pilot who has amassed aeronautical experience while pursuing a sport pilot certificate identically to an individual who has no aeronautical experience whatsoever. Despite the fact “that many of the areas of operation on which an applicant for a sport pilot certificate is required to receive training are identical to those on which an applicant for a private pilot certificate is also required to receive training,” that training is viewed as not relevant by current policy. NATA believes that regulatory disincentives towards receiving additional voluntary training should be removed as long as they do not unintentionally lower the overall level of aviation safety or have other adverse consequences.

The proposals outlined in the petition are very narrow and are well designed to remove the disincentive to receiving additional voluntary training without adversely affecting safety or creating unintentional consequences. The petition achieves this by focusing solely on overall aeronautical experience requirements for the recreational and private pilot certificate and leaving all other areas untouched. Flight proficiency training, aeronautical knowledge training, recency requirements and FAA final judgment in certification remain fully intact. NATA foresees no degradation in safety levels for certificated recreational and private pilots or unintended consequence resulting from the enactment of the regulatory changes contained within the petition.

Aside from not degrading aviation safety, the proposed regulatory changes contained within the petition will actually serve to increase safety. By recognizing that “experience begins to accrue the very first day that a student pilot sits behind the controls of an aircraft” these regulatory changes will encourage additional voluntary training and certification. FAA has long recognized that training and varied experience increase the level of safety.

Closing

NATA, again, expresses our support of the petition and asks, based upon the justification above, that the FAA undertake the rulemaking suggested by the petition at the earliest possible date.

Michael France
Director, Regulatory Affairs

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Rules Of Practice In Air Safety Proceedings and Implementing The Equal Access To Justice Act Of 1980

Wed, 09 Mar 2011 14:41:00 GMT

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Statement re: Docket Number FAA-2009-0671; Safety Management Systems For Part 121 Certificate Holders

Wed, 09 Mar 2011 08:54:00 GMT

March 7, 2011

Docket Operations, M-30
U.S. Department of Transportation
1200 New Jersey Avenue, SE
Washington, DC 20590

RE: Docket Number FAA-2009-0671, Notice of Proposed Rulemaking, Safety Management Systems for Part 121 Certificate Holders

With this rulemaking, the Federal Aviation Administration (FAA) proposes creating a new Part 5 in Title 14 of the Code of Federal Regulations (14 CFR) that will establish the requirements for an air carrier safety management system (SMS). Additionally, this rulemaking contains changes to 14 CFR Part 119 that will require all certificated Part 121 air carriers to comply with the provisions of the proposed Part 5 as well as require any prospective Part 121 air carriers to demonstrate compliance with Part 5 prior to certification.

NATA Interest in this Rulemaking
While this rulemaking specifically targets certificated air carriers operating under Part 121, the FAA clearly indicates in the preamble that its intent is to apply, at a later date, the requirements of the proposed Part 5 to other certificated entities: “Although this proposal extends only to part 121 operators, the FAA has developed these general requirements with the intent that in the future, they could be applied to other FAA-regulated entities, such as part 135 operators, part 145 repair stations, and part 21 aircraft design and manufacturing organizations and approval holders.”

With regard to this rulemaking, NATA offers both general comments on the FAA’s approach to implementing an SMS regulatory standard and comments that address the differences between Part 121 air carriers and other certificated entities.

NATA believes that the FAA should approach this rulemaking from a generalized standpoint that creates a regulatory SMS structure that could be effectively implemented by other certificated entities. This approach will offer multiple benefits to both the agency and industry in general. Taking a generalized approach to rule structure and a narrow approach to immediate application would in theory reduce the scope of future rulemaking intended to broaden its application. By implementing a generalized rule into the usually larger and more administratively complex Part 121 operational environment, the agency and industry would be better able to identify unintended issues that, if otherwise left unidentified and applied to the smaller, less administratively complex remainder of the industry, could create extreme burdens. Additionally, this approach reduces the likelihood that changes needed to extend, at a later date, the applicability of Part 5 to other certificated entities would not be compatible with the existing Part 121 application. In short, structuring the rule properly before any implementation will help ensure that a phased implementation is possible without drastic changes at any specific phase while also creating harmonization between phases.

Definition of a Hazard
NATA believes that the FAA has inadvertently expanded the scope of SMS. The proposed Part 5 defines hazard as:

“a condition that can lead to injury, illness or death to people; damage to or loss of a system, equipment, or property; or damage to the environment”(emphasis added)

The current wording would be interpreted to mean that a Part 121 air carrier would need to assess and mitigate its environmental impact as part of its SMS. NATA believes this was not intended by the FAA as the remainder of this rulemaking, both preamble and regulatory language, repeatedly refers to “operational environment,” a concern that falls squarely within the purview of an SMS.

NATA recommends that Part 5.5 be modified to read:

§ 5.5 Definitions.
Hazard means a condition that can lead to injury, illness or death to people; damage to or loss of a system, equipment, or property; or damage to the operational environment.

In the event that the FAA intends to include “a condition that can lead to…damage to the environment” as part of the definition of a hazard, NATA believes the agency has improperly enlarged the scope of SMS. Some may argue that the very operation of an aircraft, since it involves the combustion of a petroleum fuel, is damaging to the environment. Under this vision of SMS, each individual operator would be required to evaluate the potential damage to the environment and implement steps to mitigate that possible damage.

This type of expansion of scope of SMS is both harmful to the successful implementation of SMS and overly burdensome to operators, as the wide scope envisioned by the FAA will require significant resource allocations to hazards that do not have a concrete connection to safety.

Multiple Rulemaking
Currently, the FAA has two separate and distinct SMS rulemaking projects underway — this rulemaking that proposes to apply SMS to Part 121 air carriers, and other certificated entities such as Part 135 and Part 145 at a later date, and a rulemaking to apply an SMS standard to airports certificated under 14 CFR Part 139. The objective and purpose of these separate rulemaking projects is nearly identical: to create an International Civil Aviation Organization-compliant SMS regulatory standard and apply that standard to a certificated entity. The only difference in the objective and purpose of these two separate rulemaking projects is the certificated entities to which they are applied. FAA acknowledges in both rulemakings that the SMS regulatory standard must be scalable and adaptable enough to account for the many differences in the certificated entities’ operations.

In this rulemaking, the FAA is attempting, to its credit, to create a standard that would be adaptable across operational lines (i.e., possible future application to areas beyond Part 121 operations). NATA agrees with this approach and believes that the very nature of SMS as an operational process supports this approach. Therefore, NATA questions the agency’s decision to pursue two distinctly separate regulatory SMS standards. If this approach is carried through to the conclusions envisioned in the rulemakings, all certificated entities will be subject to the Part 5 SMS standard except airports certificated under Part 139, which will be subject to the SMS standard found in 14 CFR Part 139. The interconnected nature of aviation operations does not support this approach, nor does the nature of SMS as an operational process support the idea of multiple standards.

NATA strongly recommends that these separate SMS rulemakings be suspended, combined and reissued as a new single SMS regulatory standard. NATA does, however, support the idea of a phased implementation approach led by Part 121 operation. As outlined earlier in these comments, creating a single, generalized regulatory standard and utilizing a phased implementation approach will provide the greatest benefits for both the FAA and industry while creating a harmonized SMS standard across the aviation industry.

Scope and Effect of Regulation
Current regulation sets forth a minimum standard of safety that is applicable to certificated entities. This rulemaking significantly broadens the FAA’s regulatory authority and reach. The structure of this proposed rule provides the FAA with a new, unchecked authority to require compliance with standards not existent in current regulations or promulgated through the rulemaking process.

Under the structure proposed in the new Part 5, a regulated entity would be required to mitigate “deficiencies” identified by their SMS program even if those mitigations were are not required by the minimum standard of safety set forth by the balance of existing federal regulation. This creates an ever-moving, poorly defined and non-uniform regulatory standard that would vary between each regulated entity.

Additionally, this structure will allow the FAA to create new mandates simply by pronouncement, devoid of any of the statutory protections afforded in the rulemaking process. On page 68227 of this rulemaking, the FAA offers an example of how this rulemaking may have prevented an aircraft accident. In the example, the FAA makes the assumption that an air carrier’s utilization of a Part 65 maintenance facility represents a safety risk that may need to be mitigated through additional air carrier oversight processes. This assumption is found nowhere in existing federal regulation but rather is simply a pronouncement made by the FAA with no supporting facts or evidence. Under the existing structure of Part 5, the FAA could issue an air carrier a violation for either not discovering and analyzing this “safety hazard” or not implementing steps to mitigate it. The end result would be that the FAA would have issued new requirements for air carriers utilizing Part 65 maintenance facilities without having to undertake rulemaking.

Whether this hypothesized example occurs or not is irrelevant, the very fact that the FAA chose an example that would require air carriers to comply with requirements above and beyond those found in federal regulations shows that this rulemaking bestows a nearly unlimited and unchecked authority on the agency. This unchecked authority goes beyond the power delegated to the FAA by the Congress and most certainly violates provisions of the Administrative Procedures Act (APA) and the Regulatory Flexibility Act. There are numerous methods by which the FAA could modify this proposal to remedy this unchecked power, including limiting mandatory mitigation to compliance with federal regulation or by utilizing SMS output data as input to new rulemaking NATA requests that the FAA modify this rulemaking by expressly limiting mandatory mitigation to only those items not in compliance with existing federal regulation. Under no circumstances should a certificate holder be required to take any mitigation action that is in excess of the regulatory minimum standard.

SMS Compliance and Enforcement
This rulemaking is void of the FAA vision of SMS compliance and enforcement and, therefore, is wholly insufficient to offer to industry for comment. Without a full picture, including regulatory intent, proposed regulatory language and the agency’s plan for compliance and enforcement, it is impossible to provide comprehensive comments. Perfectly structured regulatory language can quickly be frustrated by a poor plan for compliance and enforcement and still lead to many of the problems that the agency attempted to avoid in construction of that regulatory language. The guidance proposed in parallel with this rulemaking is not a compliance plan (see later comments on proposed guidance).

NATA requests that the FAA provide to industry for comment a compliance plan that sets forth the agency’s vision for SMS compliance and enforcement. Such questions as who will perform SMS compliance inspections, how these inspections will be structured, and how inspectors will be trained to evaluate compliance could be answered in this plan.
Many of the issues industry has today with regulations issued by the FAA relate not to the regulatory language but rather to how compliance is evaluated. The FAA has the opportunity with this rulemaking to address this issue before the SMS rule is finalized. Offering a comprehensive compliance plan for comment would be a proactive, cooperative method to ensuring the long-term success of this rulemaking.

Recordkeeping
This rulemaking imposes several distinct record keeping requirements:

Outputs of safety risk management processes must be retained for as long as the control remains relevant to the operation
Outputs of safety assurance processes must be retained for 5 years
Training records must be retained for a minimum of 24 consecutive calendar months after completion of the training
Certain communications must be maintained for a minimum of 24 consecutive calendar months

NATA requests that clarification on the types of documents that must be maintained under these standards be included in the preamble to the final rule. We ask that this clarification include specific examples of documents that would and would not be subject to retention requirements.

Additionally, NATA is concerned that the FAA has required that documents relating to an SMS implementation be retained without providing protection of those proprietary documents from Freedom of Information Act (FOIA) disclosure or legal discovery.

NATA requests that protections against FOIA access for company’s SMS documents be included in the final rule.

FAA Cost Benefit Analysis
The cost benefit analysis presented with this rulemaking is deeply flawed. From the benefits standpoint, the FAA predicts that this rule would provide $1.1 billion in savings from “averted casualties, aircraft damage, and accident investigation costs” over 20 years. The FAA derives the costs by calculating the initial and ongoing compliance cost to air carriers over 20 years to arrive at a figure of $710 million.

The FAA’s flaw in analysis arises from its failure to account for mitigation implementation costs over that 20-year period. Simply having an SMS program in place that identifies hazards and calculates risk will do little to prevent accidents without implementing mitigation steps. Without considering the cost of mitigating safety risks, the FAA is unable to perform the full analysis required under federal law. Additionally, NATA has seen no evidence that the FAA incorporated the costs of indefinitely retaining documents required under § 5.97.

NATA requests the FAA analyze the cost-benefits of this rulemaking, including estimated mitigation and indefinite document retention costs.

Proposed FAA Order 8900 Guidance
Along with proposed regulatory changes, the FAA has offered proposed changes to FAA Order 8900. This proposed guidance appears to be heavily based upon the proposed SMS Advisory
Circular. This creates a guidance which is greatly slanted towards a single method of compliance. The purpose of the Advisory Circular is to provide one method of compliance with the regulatory standard; therefore, inclusion of its material in the FAA’s guidance to its inspector workforce limits the ability of regulated parties to utilize other means of compliance.

Additionally, the sheer volume of information provided in the proposed guidance creates a very confusing path to compliance that will reduce the ability to adapt or scale SMS to varying operations. Under the FAA’s current vision, SMS will be an accepted, not approved, document (a determination with which NATA agrees). The final guidance issued in FAA Order 8900 should reflect this determination, not just in words but also in content. Overly detailed guidance on an accepted document, when provided to inspectors, will create confusion in enforcement.

NATA requests that the FAA rescind the proposed changes to FAA Order 8900 and reissue simplified guidance. NATA believes that this new guidance should be simplified to recognize that SMS is an “accepted” document and should clearly indicate that an inspector has no authority to approve or disapprove of the methods used to comply with the regulations, only to verify that compliance is achieved. Additionally, NATA requests that this revised guidance be open to public comment prior to finalization.

Closing
In general, NATA supports this rulemaking. However, there are significant challenges to implementing SMS as a regulatory standard that must be addressed. Specifically, the ability of the rule to create near unlimited ability for the FAA to issue new standards on industry with little or no procedural safeguards must be addressed. Due to the number and nature of the changes that must be made to this proposed rule, we believe that the FAA must rescind the current rule and issue a revised notice of proposed rulemaking for public comment.

Michael France
Director, Regulatory Affairs

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Statement On HB 6387 Personal Property Tax Exemptions In Connecticut

Mon, 07 Mar 2011 14:54:00 GMT

Statement for the Record
of the
National Air Transportation Association

before the
Committee on Finance, Revenue and Bonding
State of Connecticut

Hearing on
HB 6387 Personal Property Tax Exemptions

March 7, 2011
Room 3700, Legislative Office Building

Hartford, CT

The United States is a world leader in aviation, and this industry contributes $150 billion annually to the American economy and accounts for 1.2 million jobs. In the state of Connecticut, general aviation generates $2.7 billion in revenue and approximately 45,800 jobs annually.

NATA is strongly opposed to provisions in HB 6387 that would repeal the current tax exemption for aircraft parts and maintenance on aircraft under 6,000 pounds and would assess personal property tax on aircraft. The bill, if passed, would tax aircraft at 70% of their value factored by a “mill” rate of 20. As an example of the magnitude of this proposal, a corporate jet valued at $20 million would be assessed an annual tax of $280,000. While there is no weight limit associated with this proposal, all aircraft in the state would be impacted.

The aviation industry is like no other. One of the factors that set it apart is that aircraft are mobile assets. States surrounding Connecticut, including Massachusetts, Rhode Island, New Jersey, and New York, do not impose personal property taxes on aircraft. Aircraft owners, especially corporate owners, are therefore likely to reestablish their aircraft in one of those states. This will result in a significant loss of revenue for the state instead of increasing revenue as the proposal intends. Airports and airport-based businesses will lose revenue from loss of fuel and hangar and maintenance purchases, which will also lead to a significant loss of jobs, as aircraft owners seek to avoid this onerous tax. Non-aviation businesses, such as hotels and restaurants, will also be affected, further harming the Connecticut economy.

NATA Board Member Robert Marinace, president and CEO of Key Air, forecasts that the following may take place should HB 6387 pass:

Aircraft currently based in Connecticut will relocate to more “tax friendly” neighboring states, including, among others, New York, New Jersey, Massachusetts and Rhode Island, none of which impose personal property taxes on aircraft;

The planned $30 million construction project and expansion at the Waterbury-Oxford Airport will not occur;

Significant economic damage to the businesses and the communities surrounding the Waterbury-Oxford Airport and other general aviation airports in Connecticut will occur;

Many jobs from those businesses that are dependent upon the commerce generated by the Waterbury-Oxford Airport and other general aviation airports in Connecticut will be lost; and

Millions of dollars of revenue will be lost to the state from the adverse impacts to the Waterbury-Oxford Airport.

Scott Ashton, chief commercial officer of Gama Aviation, Inc., an NATA member company, who also serves as vice chair of the Connecticut Business Aviation Group, states that should the current budget proposal become law it will result in the “relocation of nearly 90% of all business aircraft currently in Connecticut to neighboring states, and the loss of over 50% of the general aviation maintenance work performed in the state.”

Conclusion
Many states throughout the country have sought to impose similar personal property taxes on aircraft. After the sizable impact to the states’ economies and ultimate detriment to their budgets were realized, the proposals were withdrawn. NATA is hopeful that the Governor and the Committee will recognize that this proposal will not benefit the state and will oppose the personal property tax increase on aircraft.

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Rules Of Practice In Air Safety Proceedings And Implementing The Equal Access to Justice Act Of 1980

Tue, 22 Feb 2011 18:45:00 GMT

February 22, 2011

Mr. Gary L. Halbert, Esq.
General Counsel
National Transportation Safety Board
490 L’Enfant Plaza East, S.W.
Washington, D.C. 20594-2000

Re: Advance Notice of Proposed Rulemaking (ANPRM) re Rules of Practice in Air Safety Proceedings and Implementing the Equal Access to Justice Act of 1980

NATA represents aviation businesses that hold certificates to operate under various Federal Aviation Administration (FAA) regulations, including flight training facilities (14 CFR 141 and 142), air carriers (14 CFR 135), and maintenance services (14 CFR 145). Furthermore, our business members employ thousands of individuals who possess FAA certificates.

Over the decades, the relationship between regulated parties and the FAA has evolved, and the role of the NTSB in adjudicating FAA enforcement actions against certificated entities has likewise evolved. NATA believes that now, more so than in the past, it is essential that the NTSB review and revise its regulations related to FAA emergency enforcement proceedings to ensure that affected certificate holders receive a fair, reasonable and meaningful review of the FAA’s allegations while continuing to provide appropriate protections for the public with regard to the safety of aviation operations.

In the view of NATA’s members, the balance struck when a certificate holder appeals an emergency order of the FAA has tilted too far in favor of the FAA. It is our position that the recommended regulatory changes suggested herein will result in a fair and appropriate standard of review for all parties.

History with Safety Enforcement Proceedings

NATA has in the past participated in many rulemaking efforts involving aviation safety enforcement proceedings. NATA and its members seek to ensure that air safety is preserved and enhanced through rigorous safety enforcement efforts that are meaningful, fair, reasonable and evenly applied to both the FAA, representing the public interest, and those accused of wrongdoing. Given the complex and highly technical nature of the aviation industry, disputes are also often highly complex and technical. NATA welcomes and appreciates the NTSB’s current review of its own regulations with a view towards ensuring that they are as relevant and meaningful today as they were when originally promulgated.

Four issues raised by the ANPRM

The ANPRM raises four issues on which the Board seeks specific comments. These issues are:

The standard for the NTSB’s review of the FAA’s “emergency” determinations;
Discovery and exchange of documents in air safety proceedings;
Suggestions concerning electronic filing of documents in such cases; and
Updates to the procedural rules governing Equal Access to Justice Act of 1980 claims.

The ANPRM further asks that comments include a reference to a specific section of the rules, explain the reason for any recommended change, and include supporting data or rationale. NATA’s comments are set forth in that order and format below, with the portion of the relevant rule edited in redline format to show NATA’s proposed modifications. For greater detail on and citations to the legislative and regulatory history of the so called “Emergency Rules,” please see Appendix A.

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Statement Regarding FAA Reauthorization: Stakeholders

Fri, 11 Feb 2011 14:08:00 GMT

Statement for the Record

of the

National Air Transportation Association

before the

Subcommittee on Aviation

Committee on Transportation and Infrastructure

U.S. House of Representatives

Hearing on

Federal Aviation Administration Reauthorization: Stakeholders

February 9, 2011

2167 Rayburn House Office Building
Washington, DC

Chairman Petri and Ranking Member Costello, the National Air Transportation Association (NATA) appreciates the opportunity to submit the following statement to be included in the record for the Subcommittee on Aviation’s February 9, 2011 hearing regarding the Federal Aviation Administration Reauthorization Act of 2011.

NATA, the voice of aviation business, is the public policy group representing the interests of aviation businesses before the Congress, federal agencies and state governments. NATA's 2,000 member companies own, operate and service aircraft. These companies provide for the needs of the traveling public by offering services and products to aircraft operators and others such as fuel sales, aircraft maintenance, parts sales, storage, rental, airline servicing, flight training, Part 135 on-demand air taxi, fractional aircraft program management and scheduled commuter operations in smaller aircraft. NATA members are a vital link in the aviation industry providing services to the general public, airlines, general aviation, and the military.

NATA strongly believes that the strength of our national airspace system and its ability to meet future demands is dependent upon the federal government's obligation to provide adequate infrastructure. A critical step in meeting that obligation is for the Congress to pass a comprehensive, long-term Federal Aviation Administration (FAA) reauthorization bill that will help provide the resources necessary to enable our country to meet the current and growing demands being placed on our aviation system. As air traffic continues to reach record levels in both the commercial airline and general aviation sectors, it is imperative that the Congress and the FAA work together to create a roadmap that will accommodate all facets of the industry. In addition, the economy has had a tremendous effect on the aviation industry and NATA is hopeful that the new authorizing levels for the Airport Improvement Program (AIP) and Facilities and Equipment account (F&E) provided in the bill will not only benefit aviation infrastructure but also create valuable jobs.

Airport and Airways Trust Fund
As you know, the Airport and Airways Trust Fund (Trust Fund) is the primary source of funding for the FAA’s capital programs, including F&E, which fund technological improvements to the air traffic control system (NextGen), research and development (R&D) and AIP. With increased demand on Trust Fund revenues, the financial health of the Trust Fund is imperative to ensure sustainable funding for a safe and efficient aviation system.

The Government Accountability Office (GAO) testimony before the U.S. Senate Committee on Finance suggested options for ensuring the sustainability of the Trust Fund. The GAO proposed that the Congress either take action by increasing general fund contributions or increasing Trust Fund revenues by including additional taxes on commercial airlines such as a tax on baggage fees and amending the Internal Revenue Code to require the revenue be deposited into the Trust Fund. Another source of revenue that NATA supports is increasing general aviation fuel taxes on general aviation jet fuel and aviation gasoline as part of the tax title of FAA reauthorization legislation. A reasonable tax increase allows general aviation operators to provide more revenue to the Trust Fund. In addition, we believe the current system of aviation excise taxes has proven to be a stable and efficient source of revenue for the Trust Fund as opposed to other funding mechanisms that have been proposed in the past few years.

Proposed Reductions to FAA Budget
With a record federal deficit, the newly elected Congress is hard pressed to cut federal spending. Included in the major funding reductions is a proposal to withhold $1.3 billion from the FAA’s operating budget. NATA remains concerned that funding reductions would further delay NextGen implementation, thereby, proving more costly to the federal government.

Next Generation Air Transportation System (NextGen)
NATA believes that modernizing the nation’s air traffic control system is essential to keeping this vital transportation sector of our economy strong. The existing U.S. air routes operate as narrow, pre-determined paths in the sky, thus airspace is crowded between airports with the most air traffic. Aircraft are separated from each other by defined vertical and horizontal distances. The architecture of the current ground-based navigation system does not allow for the use of the abundance of the entire airspace system. By utilizing new technologies, airspace routes can be better defined, allowing more aircraft and more routes to be determined within the airspace.

NextGen’s innovation benefits to general aviation include:

Greater access to terminal airspace
Sustenance for small airports
Carbon emissions reduction
Improved weather information

The FAA’s capital investment is projected to be approximately $12 billion through 2018, not including research, airfield improvements and aircraft equipage that are necessary to realize the full potential of NextGen. This significant investment is vital to the safety and productivity of our nation’s airspace system.

Airport Improvement Program
The Airport Improvement Program (AIP) is the lifeblood of our nation’s aviation infrastructure development, and has helped airports of all sizes make the necessary capacity expansion and safety improvements that have enabled our air transportation system to remain the best in the world. Construction of new runways and runway extensions provides the most significant capacity increases at airports and creates jobs.

Increased funding is needed to ensure that the AIP program can continue to provide airport safety and capacity needs. AIP funding has received level funding of $3.5 billion for more than five years. With the possibility of funding reductions, NATA is apprehensive that critical infrastructure projects will not be completed, resulting in further aviation infrastructure decline and potential risk to our nation’s exceptional safety record.

Aviation Gasoline
General aviation stakeholders have been diligently working to develop a plan for identifying, evaluating and transitioning to an unleaded fuel. The difficulty of this task is due to the technical complexity and safety implications of removing lead from aviation gasoline. There is not a high-octane replacement fuel available today that meets the requirements of the entire general aviation fleet of aircraft. NATA has worked in partnership with general aviation stakeholders, the FAA and the U.S. Environmental Protection Agency to establish a realistic standard to reduce lead emissions from general aviation aircraft. NATA supports provisions directing the FAA administrator to take a leadership role in safely addressing piston-engine aircraft emissions.

NATA supports the following provisions:

Consistency of Regulatory Interpretations

NATA would like the bill to require that the FAA establish an advisory committee, comprising both government and industry representatives, to review the October 2010 GAO report on FAA certification and approval processes. The committee should develop recommendations to address the findings and other concerns raised by the aviation industry on the agency’s inconsistency in approving regulations.

Study of Part 135 Industry

In 2000, the Congress, as part of the Aviation Investment and Reform Act for the 21st Century, directed the FAA to conduct a comprehensive review of the on-demand air charter industry. NATA believes the upcoming FAA reauthorization bill must once again direct the FAA to conduct a thorough review of the Part 135 on-demand charter industry. Items to study should include the total annual hours flown, revenue estimates, fleet data, airport usage, and safety records. The FAA should attempt to update the study on an annual basis.

Repeal the Fuel Fraud Provision

NATA supports a provision to repeal the fuel fraud tax included in the 2005 Highway bill. The purpose of the tax was to counter potential fuel fraud from highway truck drivers attempting to avoid higher taxes by buying aviation jet fuel and mixing it with another substance to make it operable in highway trucks. The 2005 Highway bill resulted in an increase in funds to the Highway Trust Fund that would have otherwise been deposited into the Airport and Airways Trust Fund. In addition, the change in fuel tax collection burdened aviation operators with the requirement to submit additional paperwork to obtain tax refunds. A tax increase on aviation kerosene essentially removes the incentive for fraud.

Airports Providing Aviation Services

In a growing trend, airport operators are seeking financial growth at their airport by competing with, or in some cases taking over the services of, fixed base operators (FBOs) by providing aeronautical services such as fueling or maintenance at their airport. Current conditions in the aviation industry, including the distressed financial condition of the airline industry, have left airport operators scrambling for alternate sources of revenue. Aviation businesses at the airport are among their first targets in the search for this increased revenue stream. While it is the airport sponsor’s right to venture into the business of providing aeronautical services, this practice can have detrimental effects for both the airport and its tenants. The practice of airport authorities seeking to compete with private business at the airport results in strained tenant/airport operator relations at the airport, is not cost effective, and usually has a negative impact on the airport’s attempts to achieve greater operating and financial targets. By entering into the ground support side of operations, an airport authority is distracted from its duties to manage the airport successfully. Anti-trust laws are also an issue, especially in cases when a local or state government runs the airport.

There is a high cost to be paid when government competes with private industry. Economic effectiveness is the largest problem, as government-run ventures are neither as responsive nor cost-effective as private industry. When a government entity, such as an airport authority, duplicates what is provided in the competitive market, government pre-empts competition, stifles entrepreneurial opportunity, destroys economic growth, and raises the price of doing business at the cost of the taxpayer. While airports may offer a less expensive product, they are able to do so because they are subsidized by the taxpayer. The government-run “business” eliminates market incentives that produce economic efficiency and greater wealth for both buyers and sellers.

Elimination of the privately run businesses also impacts local, state and federal tax revenues. Private enterprises pay property taxes and annual income taxes from which government-owned and operated businesses are typically exempt. NATA supports a provision prohibiting airports from providing aviation services.

Conclusion
As the Congress moves forward with this critical piece of legislation, NATA looks forward to working to ensure the bill will benefit all aviation users. All of us know that, ultimately, it is the traveling public who will realize the benefits of an improved air traffic control system. We look forward to working with the subcommittee during the reauthorization process and are eager to serve as a valuable resource on aviation businesses during this critical debate.

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NATA Requests Your Input On Regulations That Hurt Our Industry

Mon, 07 Feb 2011 15:17:00 GMT

February 1, 2011

NATA Requests Your Input On Regulations That Hurt Our Industry

The staff at NATA is very familiar with the rules affecting the regulatory process, and refers to the Regulatory Flexibility Act and the Paperwork Reduction Act in almost all evaluations of new regulations affecting the aviation industry. These rules, both statutory and policy, are designed to ensure that federal regulations do not place an undue burden on the industry they affect. But even with these rules, federal regulations still place a burden on our industry that costs millions of dollars and an untold number of jobs.

Just one and a half weeks ago, President Obama signed a new Executive Order designed to add more protection from overly burdensome regulations. This Executive Order, titled Improving Regulation and Regulatory Review, aims to:

· Use the least burdensome tools to protect public safety, health and welfare

· Allow the public a thorough opportunity for input on regulations

· Provide for flexibility that will encourage innovation

· Require federal agencies to rely only on objective, scientific research when drafting rules

I, for one, am glad to see the President acknowledge that poorly written and overly broad federal regulations take an enormous economic toll on our nation. I believe that as an Industry we should take the President up on his offer to make the regulatory process more responsive to the needs of businesses and individuals.

NATA intends to present the various federal agencies that regulate our industry a list of regulations and issues that we feel need to be addressed under the President’s new Executive Order. I would like to ask you to help. Please let us know what your concerns are regarding federal regulations. NATA has established a dedicated email account to enable you to submit examples of regulations that prevent your business from growing or hiring more employees. I would ask you to take a few minutes and let us know what regulations concern you.

You can submit your concerns to: badregulations@nata.aero

Sincerely,

James K. Coyne

President

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Comments re: Interpretation of Rest Requirements Docket No. FAA-2010-1259, Notice Of Proposed Interpretation, Interpretation of Rest Requirements

Fri, 28 Jan 2011 15:25:00 GMT

January 24, 2011

Docket Operations, M-30
U.S. Department of Transportation
1200 New Jersey Avenue, SE
West Building Ground Floor
Room W12-140
Washington, DC 20590-0001

Delivered electronically via www.regulations.gov

Re: Docket No. FAA-2010-1259, Notice Of Proposed Interpretation, Interpretation of Rest Requirements

The National Air Transportation Association (NATA), the voice of aviation business, is the public policy group representing the interests of aviation businesses before Congress, federal agencies and state governments. NATA’s 2,000 member companies own, operate, and service aircraft. These companies provide for the needs of the traveling public by offering services and products to aircraft operators and others such as fuel sales, aircraft maintenance, parts sales, storage, rental, airline servicing, flight training, Part 135 on-demand air charter, fractional aircraft program management and scheduled commuter operations in smaller aircraft. NATA members are a vital link in the aviation industry providing services to the general public, airlines, general aviation, and the military.

NATA appreciates the Federal Aviation Administration (FAA) publishing the Notice of Proposed Interpretation (the Notice) and its solicitation of comments prior to acting on the matter and respectfully submits the following comments for consideration.

NATA objects to the proposal to re-interpret § 135.267(d) and recommends the FAA allow existing interpretations of that regulation to stand until rulemaking to revise the flight, duty and rest regulations applicable to Part 135 unscheduled operations is initiated. NATA further recommends that such rulemaking reflect the work of the Part 135/125 Aviation Rulemaking Committee (Part 135 ARC) recommendations[1]

No Safety Justification

The FAA has not provided any statistical or anecdotal evidence that safety is or has previously been compromised by the current interpretation of § 135.267(d). We are not aware of Part 135 operations where crew fatigue resulting from an extension of duty for late arriving passengers or cargo (or for a ground delay encountered after taxi and prior to “wheels up”) was directly linked to an accident. Indeed, the existing FAA interpretations make reference to the fact that the provisions of § 91.13 apply to any operations conducted under the current interpretations of § 135.267(d) and that the operation may not occur if there is a threat to safety.

The FAA’s only apparent justification for the proposal to re-interpret § 135.267(d) is that the “FAA has determined it is illogical that nearly-identical (emphasis added) regulatory language” is interpreted in two different ways. There is no absence of logic when one understands that the rules are not identical and that the differences are both significant and relevant to the discussion and ultimate interpretations of the rules.

Circumstances Beyond Control

The FAA seems to be confusing its own regulations in the attempt to revise the interpretations of § 135.267(d).

Section 121.471(g), which was addressed in the so-called Whitlow interpretation, deals with flight time and permits crewmembers to exceed flight time limits when, “due to circumstances beyond the control of the certificate holder (such as adverse weather conditions), [flights] are not at the time of departure expected to reach their destination within the scheduled time.” The FAA incorrectly associates this rule to § 135.267(d).

Section 121.471(g) is in fact much more akin to § 135.267(e). Both regulations stipulate the conditions under which flight time may be exceeded for “circumstances beyond the control” of the certificate holder or crewmember. NATA points out the consistent use of the phrase “circumstances beyond the control” in both regulations. Importantly, neither of these regulations addresses crew look-back rest or duty time requirements.

In the Whitlow letter[2], the FAA states that the exception of § 121.471(g) “only applies to the scheduling of flight time. It is inapplicable to, and does not excuse, a violation of the rest requirement.”

The very interpretation that the FAA wishes to use to restrict the look-back rest exception of § 135.267(d) clearly states that § 121.471(g) only applies to flight time and has no bearing on rest requirements. Therefore, NATA argues that the FAA cannot rely upon the Whiltow letter interpretation of the “circumstances beyond the control” exception for extending flight time to justify a change in the interpretation of § 135.267(d) rest requirements.

The FAA has interpreted that exception within § 121.471(g) is limited to enroute weather or air traffic control delays that were not reasonably known prior to departure. NATA does not necessarily disagree with the application of this interpretation to § 135.267(e) because that rule applies to valid reasons for exceeding flight time limitations and has language, “circumstances beyond the control,” that is identical to the Part 121 rule.

The FAA does not accept unplanned maintenance or late arriving passengers or cargo as suitable reasons for exceeding flight time restrictions. Indeed, it hard to imagine how a late arriving passenger could realistically result in increased flight time, which is why the FAA does not view it as a permissible reason to extend flight time. In contrast, it is quite obvious how late arriving passengers or cargo could result in more time on duty than originally planned.

Scheduled Completion Of Any Flight Segment
vs
Planned Completion Time Of The Assignment

The regulations requiring look-back rest in § 121.471(b) & (c) and 135.267(d) are not identical and should not be subject to identical interpretation.

The Part 121 rules stipulate that a pilot cannot accept a flight time assignment unless, during the 24 hours “preceding the scheduled completion of any flight segment,” the required rest period exists.

In contrast, § 135.267(d) states that a pilot may not accept an assignment unless the required 10-hour rest period is located in the “24-hour period that precedes the planned completion time of the assignment.”

Through the Notice, the FAA is attempting to equate the terms “scheduled completion of any flight segment” and “planned completion time of the assignment.” NATA strongly objects. Had the original drafters of the regulations intended to have a regulatory requirement for Part 135 that was identical to Part 121, they would have very likely simply copied the Part 121 rule word-for-word. This was not done. These phrases are not interchangeable, and the choice for distinct regulatory language should not and cannot be overlooked or minimized.

The FAA has previously issued definitive interpretations of § 135.267(d). The prior interpretations presented factual scenarios that are, in all relevant ways, identical to the scenario presented in the Notice’s “Background” section. There has been no lack of clarity or misunderstanding of how the FAA views the phrase “planned completion time of the assignment.” The FAA has consistently interpreted that late arriving passengers/cargo and unexpected maintenance were legitimates reason for extending the planned assignment time.

        “The key to the applicability of § 135.267(d) is in the final phrase "planned completion time of the assignment" (emphasis added). If the original planning is upset for reasons beyond the control of the crew and operator, the flight may nevertheless be conducted, though crew duty time may extend beyond the planned completion. This assumes, of course, that the original planning was realistic.

    As to what circumstances are beyond the control of the operator and crew, the FAA has taken the position that delays caused by late passenger arrivals maintenance difficulties, and adverse weather constitute circumstances beyond the certificate holder's control."
                                Interpretation 1992-4 to Fred R. Hutson.

In NATA’s view, it is clear that the regulatory language of “flight segment” in § 121.471(b) and (c) requires on-going evaluation of the look-back rest requirements on a “per flight segment” basis. It is also clear, as it has been to the FAA until publication of the Notice, that the look-back rest requirements of § 135.267(d) establish a different minimum regulatory standard. The FAA has on multiple occasions definitively stated that Part 135 unscheduled operators are to evaluate their compliance with the look-back rest requirements on an “assignment” (rather than segment) basis and that their meaning of the word “assignment” is properly construed to include multiple flight segments.

Applying Part 121 Standards To Part 135

NATA objects to the attempt to apply situations, regulations and interpretations for scheduled Part 121 domestic operations to unscheduled Part 135. The FAA is drawing parallels that do not exist throughout the Notice. In fact, it would be more logical for the FAA to attempt to align Part 121 supplemental rule interpretations to Part 135 as both relate to unscheduled activity. Likewise due to the international aspects of Part 135 the FAA could even attempt a logical argument that some of the Part 121 flag rules are more akin to Part 135. Each of these makes more sense than the correlation the agency is attempting to draw between Part 121 domestic rules and Part 135 unscheduled rules. Of note is that each of those rules for the different Part 121 operations is less strict and provides more flexibility than the current Part 135 unscheduled rules.

The Part 135 rest requirements are already in many ways more stringent than any Part 121 requirement. Section 135.267(d) requires, without exception, the provision of a ten-hour rest period prior to beginning duty, regardless of the length of planned flight(s) or anticipated duty time. This is unlike Part 121 rules where the FAA permits a planned reduction in rest down to eight hours under domestic rules and rest periods are assigned following duty under both flag and supplemental rules.

By attempting to apply Whitlow to Part 135, the FAA is imposing one of the limitations of Part 121 without providing the accompanying flexibilities available under those same Part 121 rules. Part 135 unscheduled rules have no provision for reducing rest. At all times, even under the current exception for unplanned extended duty assignments, the crew must have received a full ten-hour rest period prior to beginning duty.

Section 121.471 (and its companion for scheduled Part 135 operations in § 135.265) has provisions to provide reduced rest that makes working under a “per segment system” for evaluating look-back rest far more workable. No such system exists for Part 135 unscheduled operations, nor is FAA proposing to create one.

It is critical to understand that even when an unanticipated delay, consistent with current interpretations that allow the duty to continue, occurs during an assignment under § 135.267(d) (and therefore a portion of the 10-hour rest period is now outside the 24-hour look-back), it doesn’t negate the fact that the ten hours of rest did in fact occur.

As evidenced by the fact that the current rulemaking proposal to revise Part 121 requirements was not issued until 2010, the FAA has apparently been satisfied with the safety provided by some pilots receiving a planned rest period of as little as eight hours, resulting in having a planned duty period of sixteen hours. Under § 135.267(d), a rest period must always be at least ten hours and, therefore, no duty period may ever be planned for more than 14 hours.

For this reason, NATA argues that the rest and duty cycles are far better for the Part 135 pilot even under the current interpretations that allow for unexpected circumstances to extend duty.

Rulemaking Required

In the Notice, the FAA wrongly states that the prior interpretations allowed extension of duty beyond the “permissible 14-hour period” (75 FR 80747). In fact, every FAA interpretation of § 135.267(d) definitively states that there is no explicit limitation on duty time, 14 hours or otherwise. This is an important fact, because if the FAA follows through with the proposed interpretation the agency will be establishing a maximum 14-hour duty period.

The FAA cannot require indirectly, via an interpretation, that which the regulations do not directly require and that all prior interpretations definitively state: that there is no limit on duty established in § 135.267(d).

The proposed interpretation establishes a hard limit on duty, providing only a narrow exception for delays incurred while airborne on the last flight leg of an assignment. The FAA is creating a new regulatory requirement that, in our view, mandates rulemaking.

This is uniquely different from the circumstance that led the court to uphold the Whitlow letter. In that case, the FAA had not previously issued a definitive interpretation of the circumstances under which the full rest period could not be found in the prior 24-hour look-back period. That case also dealt extensively with the flight time limitations of Part 135. The flight time limitations of Part 135 unscheduled operations are not at issue in the Notice and the new interpretation it proposes.

Finally, as acknowledged in the Notice by reference to the prior interpretations of § 135.267(d), the FAA has previously and definitively explained in detail the circumstances under which the required 10-hour rest period in § 135.267(d) may not fall completely within the 24-hour look-back.

Unintended Consequences

Because the FAA’s proposed interpretation imposes the “per flight segment” evaluation of look-back rest without providing the opportunity for exceptions (such as reduced rest) that are available to Part 121 carriers, there will be several unintended consequences.

Scheduled Part 121 Domestic carriers typically have flight crews based at or within a reasonable distance to every location they serve. Part 135 on-demand carriers do not have crews at their destination airports.

When a Scheduled Part 121 Domestic carrier must cancel a specific flight due to the Whitlow interpretation, the carrier can call a reserve crew to duty to take the flight, albeit with a likely departure delay. That initial crew can then enter a rest period and resume duty assignments following that rest. More than likely, the carrier has arrangements with a local hotel that can accommodate the crew for their rest period.

In the case of an on-demand operator, if the flight is cancelled because of a delay encountered prior to “wheels up” (which is the standard the FAA seeks to apply), the potential outcomes would create additional safety hazards and costs.

The carrier may dispatch an additional crew and aircraft to that location so the passengers or cargo can be transported to the planned destination. In such a case, the crew that hit their duty time limit would be well within the regulations then to fly their empty aircraft back to the home base as a Part 91 repositioning flight. This presents concerns that the FAA has failed to identify, address and justify:

By requiring another aircraft and crew, the number of operations has increased. With every additional take off and landing required, the exposure to risk has increased.
The initial flight crew could be unnecessarily exposed to additional risk because the flight is conducted under Part 91 requirements, whereas if the flight had been permitted to operate as planned it would be held to the higher operational requirements of Part 135.
The costs of operating the secondary aircraft are not at all considered — nor are the opportunity costs for both operator and customer. The operator now has two aircraft out and could miss another charter opportunity. The customer is unable to be where he/she wanted and when, and/or the cargo will not reach its destination on time. If the operator chooses not to reposition the original aircraft and crew under Part 91, expenses for obtaining a suitable rest facility for the crew and for obtaining hangar or ramp parking for that aircraft during the rest period are incurred.

In the event of a charter flight involving a patient transport, the effect of the proposed interpretation could be life threatening. In addition to the concerns with a “typical” charter flight explained above, the potential for loss of life exists in an air medical situation. Often, when an aircraft has been chartered for a patient transport, it is because the patient is in such a fragile state that over-the-road transportation is simply not recommended. It has happened that the departure of the aircraft is delayed due to a medical emergency experienced prior to the aircraft’s departure. By restricting the ability of the flight crew to wait for the patient to be sufficiently stabilized prior to departure (and thus extending duty), the FAA is jeopardizing the safety and the life of those patients.

Establishing that the crew must determine their compliance with the 14-hour duty limit prior to “wheels up” places an unnecessary mandate on crews that could lead to hurried completion of pre-takeoff checks and a reduction in safety. A crew that knows that when they start the engines that they are “close” to the limit may feel unintended pressure to just “get through the lists and get out” or perhaps increase their taxi speed so that they are wheels up before the clock expires. NATA posits that it would make far more sense and be in the interest of safety for any such restriction to apply prior to the beginning of flight time (per §1.1 definition) rather than wheels up.

Finally, because Part 135 operators operate under one set of rules regardless of whether they operate internationally, the FAA could easily, and quite realistically, create fatigued pilots by adopting the proposed interpretation. Consider an international flight ultimately bound for the United States that is planned to require 14 hours of duty (due to time waiting for the passengers to complete business), but only 9 hours of flight time.

If, because of a change in winds aloft, the planned final flight is now expected to take 9 hours and 2 minutes, creating a duty period of 14 hours and 2 minutes, the crew must abandon the flight. However, it completely complies with the regulations for the carrier to assign the crew immediately to a 10-hour rest period, require them to report for duty following that rest and then complete the flight. In this example, the crew, which was planning to be awake for approximately the next 10 hours (and had rested previously), must now try to sleep when they are not at all tired. They will be expected to be awake and alert for duty when they were reasonably expecting to be off duty and able to recover from their flight.

NATA, and all scientific information on fatigue available, supports the conclusion that the crew would have been far better off having had a duty period of 14 hours and 2 minutes rather than flipping their entire duty/rest cycle around. However, because the current Part 135 regulations do not provide the flexibility and exceptions that Part 121 Flag and Supplemental rules do, flipping the pilots’ duty/rest cycle is the only option.

NATA believes the FAA must consider and address these valid concerns and that this is best accomplished by engaging in a complete revision to the Part 135 rules for crewmember flight, duty and rest.

135 ARC Recommendations

Several years ago, the industry provided the FAA with a complete solution to the many issues surrounding crew flight, duty and rest requirements for Part 135 unscheduled operations. The FAA should act on those comprehensive recommendations rather than selectively import Part 121 requirements and manipulate the current regulations via legal interpretations.

The Part 135 Flight, Duty and Rest (FDR) Subgroup was a part of the Part 135 ARC and included both industry and FAA representatives. The FDR subgroup met several times over a one-year period and developed a comprehensive proposal to address unscheduled/on-demand operations under Part 135. The FDR subgroup proposal addresses all of the major areas of concern raised by the National Transportation Safety Board, the FAA and the industry, as applied to the unique Part 135 operating environment. NATA urges the agency to utilize the Part 135 ARC’s work as a complete solution rather than to attempt to implement one-size-fits-all rules by applying interpretations applicable to Part 121 or selectively adopting only portions of the Part 135 ARC recommendations.

Indeed, the Part 135 ARC recommended establishment of a duty limit, that duty time could be extended under only a few circumstances and that there would be a hard limit on duty, much like the restrictions established in Whitlow. However, the many restrictions proposed by the Part 135 ARC were balanced by a host of other regulatory changes that must also be implemented to achieve the intended safety results without imposing unjustified costs that exceed those benefits.

The recommendations for pilot flight, duty and rest regulations submitted by the Part 135 ARC would dramatically improve upon current regulations while still permitting the operational flexibility inherent to the continued ability to conduct on-demand operations. The following offer a brief overview of the merits of that proposal.

Science-based fatigue principles were applied to all areas

. The window of circadian low is accounted for by requiring operators to establish pilots on a regularly planned, predictable sleep/wake cycle. Changing a particular pilot’s cycle requires provision of ample transition time.
Rest is defined and protected. When a rest period is assigned, it would be at least 10 hours. There is no provision for reducing rest under any circumstances. The system recognizes circadian rhythms by establishing a predicable rest opportunity. A pilot is assigned a for an adequate adjustment period. The pilot may not be contacted or assigned to duty during that protected time.
Enhancements to time off. Pilots are provided more days off than current rules require, and days off would be provided on a monthly, rather than quarterly basis, so as to address the issue of cumulative fatigue better.
Duty periods include limits. A duty period including a flight assignment is limited to 14 hours (for a 2-pilot crew). Duty may be extended up to one hour if specific circumstances occur after engine startup and before takeoff (e.g., a temporary ground hold). Continuing a flight once airborne if a delay is encountered is left to the pilot’s authority. Importantly, any duty extension requires compensatory rest to mitigate the potential effects of cumulative fatigue.

In addition, the 125/135 ARC proposal also includes provisions related to:
Long Range (Multi-time zone) flights
Tail-end ferry and positioning flights
Fatigue Management Programs

Summary

NATA appreciates the opportunity to have our views considered as the FAA determines its action on the Notice of Proposed Interpretation. We strongly recommend that the FAA allow the current interpretations of 135.267(d) to stand while efforts to conduct comprehensive rulemaking to revise the Part 135 crewmember flight, duty and rest regulations are initiated. We request that the FAA publish its review of comments submitted and the final action it takes in the Federal Register to ensure that the public is reasonably made aware of the outcome of this action.

Sincerely,

James K. Coyne
President

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[1] The flight, duty and rest subgroup of the 135 ARC developed a comprehensive proposal to address unscheduled/on-demand operations under 14 CFR Part 135. See docket FAA-2002-13923, document ID FAA-2002-13923-0127.

[2] Response to Question 5 of “Situation 2” in November 20, 2000 Letter to Captian R. Rubin from J. Whitlow, Deputy Chief Counsel.

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NATA Comments on Air Carrier Maintenance Requirements

Mon, 01 Jan 0001 00:00:00 GMT

The Federal Aviation Administration (FAA) published this Notice of Proposed Rulemaking (NPRM), Air Carrier Contract Maintenance Requirements, in November 2012 in response to a mandate contained in section 319 of the FAA Modernization and Reform Act of 2012 as well as numerous Department of Transportation (DOT) Inspector General (IG) reports.
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