In a momentous shift of its normally conciliatory relationship with aircraft manufacturers, the United States Senate, on June 17, 2020, introduced the “Aircraft Safety and Reform Act,” legislation that will, if enacted, effectively reverse the provisions of the Federal Aviation Administration Reauthorization Act of 2018 (“2018 FAA Act”) which allow aircraft manufacturers to perform, with a minimum of FAA oversight, the certification for safety purposes, of the aircraft it manufactures.

The proposed, bipartisan, legislation, seeks to control both the performance of the industries to which were delegated the aircraft safety certification responsibilities (“ODA”) under the 2018 FAA Act, and the FAA personnel charged with overseeing their compliance.


Continue Reading Proposed Legislation Repudiates Congress’ Hands Off Policy Toward Aircraft Certification

The Federal Aviation Administration (“FAA”) relies on the mantra “safety is our business, our only business” where, for example, justifying changes in aircraft flight paths over heavily populated residential communities. But is that reality? Not according to the Office of Inspector General, U.S. Department of Transportation (“OIG”) report of October 23, 2019, Department of Transportation’s Fiscal Year 2020 Top Managerial Challenges (“OIG Report”), when dealing with members of one of FAA’s primary constituencies, the aircraft manufacturers.

Specifically, the OIG Report highlights significant “challenges FAA faces in meeting its safety mission,” p. 1. Most notable is the correction of its lax oversight of aircraft certification procedures as graphically demonstrated by the recent deaths of 346 people in two separate crashes of Boeing’s 737-Max 8 aircraft, at least preliminarily thought to have been caused by systemic malfunctions in computer systems designed and installed by Boeing but never disclosed to operators.

Continue Reading DOT Inspector General Finds “Challenges” in Achievement of FAA’s Safety Mission

In its report of September 27, 2019 the National Transportation Safety Board (“NTSB”), although acknowledging the need for Boeing to “fine tune” its technology to prevent the Maneuvering Characteristics Augmentation System (“MCAS”) from automatically repeating and sending a plane into uncontrolled dives, NTSB focused more on pilots “confusion” in responding to multiple alarms caused by the malfunction in the MCAS system control sensors. NTSB then followed up by issuing seven recommendations calling on the Federal Aviation Administration (“FAA”) to update how it assumes pilots will react in emergencies and make aircraft more “intuitive” when things go wrong, in an effort to ensure that “average pilots” can respond to complex emergencies.

The Joint Authorities Technical Review Panel, made up of experts from the FAA, the National Aeronautics and Space Administration (“NASA”) and nine other regulatory agencies from around the world, in its report of October 12, 2019 (“Joint Authorities Report”), reached a dramatically different conclusion. It instead took FAA to task for failing to follow its own rules, using out of date procedures, and lacking the expertise to fully explore the design changes for the aircraft implicated in the two crashes.


Continue Reading The National Transportation Safety Board Report Mutes Criticism of the 737 Max Aircraft Design

In a June 19, 2019 hearing of the United States House of Representatives Subcommittee on Aviation, representatives of pilots’ organizations directly involved in, and affected by, the structural issues identified in the Boeing’s 737 Max aircraft, that caused the tragic deaths of 346 passengers, called The Boeing Company (“Boeing”), and its federal regulatory partner, the Federal Aviation Administration (“FAA”) to account in no uncertain terms.

Daniel Carey, a 35 year career American Airlines Captain, and President of the Allied Pilots Association (“APA”), testified as to what pilots regard as the fundamental issues with oversight by FAA.

Carey opines that the disasters arose from two fundamental problems: (1) the addition of the Maneuvering Characteristics Augmentation System (“MCAS”) without additional training, or even notification to pilots of its existence; and (2) failure of the requisite oversight by FAA. First, in an effort “to minimize the operating costs to Boeings customers by allowing the Max to be certified by FAA as a 737,” rather than requiring additional procedures that might be required for a substantial variation from the original 737 design, “this lead Boeing’s engineers to add the MCAS system.” Also according to Carey, many additional mistakes were subsequently made by Boeing engineers.


Continue Reading Pilots Take Boeing and FAA to the Woodshed in Testimony on the 737 Max Tragedies

The concept of “on call” transportation has now moved from the Earth to the sky. As demonstrated recently at a meeting of the players in Washington, D.C., the future of aerial transportation is transitioning toward “flying cars,” i.e., electric Vertical Takeoff and Landing (eVTOL) craft that hover and glide relatively quietly and without emissions, summoned by “app,” and without the need for a pilot. To accomplish this purpose, companies including Embraer, Aurora Aircraft, Karem Aircraft, Pipistrel USA Engineering, and Bell Aircraft Corporation have launched development of requisite engines and airframes.

In order to achieve the fundamental purpose of this (hopefully) revolutionary mode of air transportation, a number of parameters must be met in developing the requisite airframe, including a cruise speed of 150 miles per hour, 60 mile range, and capacity sufficient to fly three hours’ worth of short (e.g., 25 miles) trips carrying a pilot and four passengers. In addition, the “aircraft” must be able to takeoff and land vertically, like a helicopter, but fly on wings to conserve energy.

Each of the aspiring companies touts a different concept to accomplish these purposes.


Continue Reading The Aviation Industry Has Grand Ambitions for Urban Air Mobility – In the Not Too Distant Future

In a March 27, 2019 appearance before the Senate Subcommittee on Aviation and Space, Daniel K. Elwell, Acting Administrator for the Federal Aviation Administration (“FAA”) sought to clarify the FAA’s role in the certification of the safety of aircraft systems. In doing so, he emphasized that the principal responsibility for safety lies with the aircraft manufacturers, with FAA performing merely a review function to determine “if the applicant [for certification] has shown that the overall design meets the safety standards. We do that by reviewing data and by conducting risk based evaluations of the applicant’s work,” Statement of Administrator, before the Senate Committee on Commerce, Science and Transportation, Subcommittee on Aviation and Space on the State of Airline Safety: Federal Oversight of Commercial Aviation, March 27, 2019 (“Statement”). The problem with this explanation may not be the adopted approach, but the lapses in FAA’s realization of its part of the bargain.

In the opening discussion of the safety certification system’s underlying philosophy, the Acting Administrator explained that “the FAA focuses its efforts on areas that present the highest risk within the system . . .,” Statement, p. 3, with FAA purportedly “involved in testing and certification of new and novel features and technologies,” Statement, p. 5, a category within which the Maneuvering Characteristics Augmentation System (“MCAS”), thought to be a cause of the recent accidents in Ethiopia and Malaysia is included. In fact, as discussed in a comprehensive article of March 17, 2019, “Flawed analysis, failed oversight: How Boeing, FAA certified the suspect 737 MAX flight control system,” posted in the Seattle Times by Dominic Gates, the Seattle Times Aerospace reporter (“Seattle Times Article”), Boeing’s “system safety analysis” of the MCAS:

  • Understated the power of the new flight control system, which was designed to swivel the horizontal tail to push the nose of the plane down to avert a stall. When the planes later entered service, MCAS was capable of moving the tail more than four times farther than was stated in the initial safety analysis document.

  • Failed to account for how the system could reset itself each time a pilot responded, thereby missing the potential impact of the system repeatedly pushing the airplane’s nose downward.

  • Assessed a failure of the system as one level below “catastrophic.” But even that “hazardous” danger level should have precluded activation of the system based on input from a single sensor — and yet that’s how it was designed.

Nevertheless, the Acting Administrator goes on to divest FAA of responsibility.


Continue Reading FAA Administrator Explains Agency’s Hands Off Approach to Safety Certification

In recent months, since the tragic crashes of two Boeing 737-Max aircraft in disparate areas of the globe, both the public and the press have expressed surprise at the finding that the Federal Aviation Administration (“FAA”) was delegating to the aircraft manufacturing industry the principal responsibility for formal certification of aircraft safety. They shouldn’t have been so surprised.

The press consistently blames “agency capture,” the process by which federal agencies purportedly develop cooperative, and even symbiotic, relationships with the industries they are tasked with regulating. In fact, in this instance, it was the United States Congress, in Section 312 of the FAA Modernization and Reform Act of 2012 (“FMRA”), that opened the door to the now questioned delegation of authority over aircraft safety.


Continue Reading Congress Gives the Aviation Industry the Keys to the Hen House

Within hours after FAA’s grounding of Boeing’s 737 Max 8 and 9 aircraft, pilots and aviation experts began to weigh in on the rationale. The first in the chorus was the Acting Administrator, Daniel Elwell, who opined that, in the face of the immediate action to ground the aircraft taken by European aviation authorities, as well as the increasing public outcry, the FAA had discovered “new evidence” from the site of the recent deadly airline crash in Ethiopia that justified defiance of the aeronautical industry urging a more measured approach.

Specifically, the Acting Administrator, in an interview with CNBC, stated that information made available since March 13 verified that the Ethiopian airline’s flight track “was close enough to the track of the Lion Air flight” that had crashed in Indonesia in October 2018 “to warrant the grounding of the airplanes so that we could get more information from the black boxes and determine if there is a link between the two, and, if there is, to find a fix to that link.” Ultimately, the agency concluded “the full track of the Ethiopian flight was very close to Lion Air,” and, thus, justified the grounding. The remaining question of what potentially caused the similar fatal incidence was, however, left up to other aviation experts.


Continue Reading Aviation Experts Join Chorus on FAA Grounding of Boeing 737 Max 8 and 9 Aircraft

On or about November 16, 2017, the United States Senate acted speedily to pass the “National Defense Authorization Act for Fiscal Year 2018,” H.R. 2810 (“Defense Reauthorization Act”), originally introduced in January of 2017, and now awaiting signing by President Trump.  

The Senate’s motivation is not obscure, where it sets forth, among other things, guidelines for “Collaboration Between Federal Aviation Administration and Department of Defense on Unmanned Aircraft Systems,” or UAS, H.R. 2810, § 1092.  Most notably, that section re-imposes rules originally imposed on the operators of small, unmanned aircraft, weighing between .55 and 55 pounds, used for recreational purposes (“model” aircraft).  Those rules were set aside by the United States Court of Appeals for the District of Columbia Circuit in May, 2017, in the published opinion Taylor v. Huerta, 856 F.3d 1089, 1093 (D.C. Cir. 2017), on the ground that the FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95 (“FMRA”) specifically prohibits FAA from promulgating “any rule or regulation regarding model aircraft.”  Id. at § 336(a).  
 
Congress has now enacted a revision to FMRA’s prohibition, and thrown model aircraft back into the regulatory arena.  


Continue Reading Operators of Small Unmanned Aircraft Uses for Recreational Purposes Will Soon Face Regulation

The Los Angeles Times reports that Uber, the ridesharing company, plans to extend its reach into the stratosphere by developing an “on-demand air transportation service.”  The plan appears to be that customers will use Uber’s surface transportation ride hailing system to hop a ride to a “vertiport” where an electrically powered aircraft will carry passengers to another vertiport at which they will be met by another phalanx of Uber drivers waiting to take otherwise stranded customers off the roofs of parking garages and into the traffic they supposedly avoided by using the proposed above ground transportation option.  

The purpose appears to be to allow customers to fly from one part of town to another.  Very creative, but shockingly absent all but one off-hand reference to the Federal Aviation Administration (“FAA”), and the federal government’s total dominance over the airspace of the United States, 49 U.S.C. § 40103(a), including the design and construction of airports, which definition includes “vertiports.” 14 C.F.R. § 157.2. 
 
Whether recognized or not, Uber’s scheme faces a host of questions, and potential regulatory objections, that range from the way in which such episodic operations will merge with the arrival and departure paths of conventional aircraft, to the noise of even electric aircraft operating over existing residential neighbors and pedestrians using city streets.  While these are, to a large extent, the same issues posed by the operation of unmanned aircraft, or drones, they are even more immediate in this case, because the proposed electric aircraft are larger, potentially louder, and, perhaps most importantly, impinge on conventional aircraft regulatory areas long controlled by the FAA.


Continue Reading Uber Flies High in FAA’s Airspace