Significant Regulatory & Related Activity

Tue, Oct 28, 2008 — David Evans

Regulatory & Other Items

The Federal Register is packed with the very antithesis of boring reading and is full of interesting – if not scandalous – tidbits regarding various air safety issues. Three of the more engaging and far-reaching documents are briefed in the latest Significant Regulatory table contained in this publication:

9 March 2008: the Environmental Protection Agency (EPA) promulgated a proposed rule for water quality in aircraft systems, based on 2004 testing that revealed some aircraft water tanks contained E. coli/fecal coliform bacteria. The EPA, not the Federal Aviation Administration (FAA), has responsibility for aircraft water purity.

10 March 2008: the FAA published a final rule on cockpit voice and digital flight data recorders (CVRs/DFDRs). FAA Administrator Robert Sturgell hailed the regulation for its sweeping improvements. But Mark Rosenker, chairman of the National Transportation Safety Board (NTSB), groused in a letter to Sturgell that the new regulations ignore NTSB recommendations on much-needed additional parameters for B737 rudder systems.

13 May 2008: the Department of Transportation (DOT) published a rule preventing discrimination against passengers with disabilities at airports and on airplanes. Among its many provisions, the rule calls for special safety briefings for hearing or vision impaired passengers so that they have the same information as regular passengers

Significant Regulatory & Related Activity

13 May 2008               Department of Transportation (DOT)

Docket No. OST-2004-19482     Doc. ID: DOT-OST-2004-19482-1299

Final Rule, Nondiscrimination on the Basis of Disability in Air Travel

This 312-page rule reorganizes and updates the entire Air Carrier Access Act (ACAA), including new provisions for passengers who use medical oxygen and passengers who are deaf and/or blind. While the rule addresses such items as disabled passenger assistance moving through airports and the availability of wheelchair access lavatories aboard aircraft, we focus here on provisions of the rule relating directly to safety.

The rule comes into effect one year from its date of publication in the Federal Register, which means 13 May 2009.

Of first interest is the department’s rejection of any limit on the airplane of disabled passengers:

“A number limit permits a carrier to say to a passenger, in effect, ‘As a person with a disability, we will deny you transportation on this flight because some number of other persons with disabilities are on the flight.’ Such a response to a passenger is intrinsically discriminatory … If anything, our view of the matter has been strengthened by the fact that, during the 17 years since the original rule was issued, we are not aware of any instances of safety problems resulting from the existing rule’s prohibition on number limits.”

Regarding emergency evacuation, the rule says:

“With respect to passengers who have mobility impairments, we have clarified the criterion to safety assistants to say that the passenger with a disability must be capable of ‘physically’ assisting in his or her own evacuation. This clarification is made to avoid the possibility that someone could claim he is assisting in his own evacuation merely be calling for help.”

However, if the disabled passenger requires a wheelchair, the rule does not appear to require stowage of the wheelchair close to the passenger, or require that the passenger unfold and get in the wheelchair himself.

Deaf and blind passengers must be afforded a safety briefing like any other passenger. To this end, this rule requires advance notice:

“To allow the carrier an opportunity to confirm that the passenger had a means of communication available, the final rule provides that the carrier can require the passenger to self-identify 48 hours before the flight. …

“The FAA requires that the safety briefing be provided before each takeoff, so communication to permit transmission of this briefing must be established for each flight segment of the passenger’s itinerary. Passengers can use a variety of means to establish the needed communication. A passenger could, for example, bring a companion to the airport to serve as a go-between with carrier personnel there. That individual can interpret for the passenger during the safety briefing and can help the passenger agree with carrier personnel on physical signals – touching the passenger’s hand in a specific manner, for example – for use during evacuation or other emergencies.”

This guidance frankly sounds like wishful thinking during the pandemonium of an emergency evacuation, when the cabin may be filled with smoke and people are scrambling over seat backs in their haste to get out of the airplane.

Regarding passengers with diseases, the rule states:

“Under this provision, carriers would have the ability to impose travel restrictions and/or require a medical certificate if a passenger presented with a communicable disease that was both readily transmitted in the course of a flight and which had serious health consequences (e.g., SARS, but not AIDS or a cold).”

The rule does not say, but apparently a passenger with drug resistant tuberculosis can be boarded, as the disease is not readily transmitted.

Passengers themselves may not present a hazard, but their battery powered devices, such as breathing aids, may. For example, a lithium ion powered breathing device worn around a passenger’s neck exploded as the passenger was walking through a terminal in 2006. The rule says:

“Except for on-demand air taxi operators, as a U.S. carrier conducting passenger service you must permit any individual with a disability to use in the passenger cabin during air transportation, a ventilator, respirator, continuous positive airway pressure machine, or an FAA-approved portable oxygen concentrator (POC) on all flights operated on an aircraft originally designed to have a maximum passenger capacity of more than 19 seats.”

The rule contains a handy complaint form that may be filed by passengers. For example, if a disabled passenger is denied boarding, the form allows one to check any number of categories: if one is hearing or vision impaired, is a paraplegic, is mentally impaired, is in a wheelchair, has a communicable disease and is on oxygen, apparently all the blocks indicating these impairments may be checked, and the form sent to DOT for the incident to be investigated.

The ruling does not address the discrete or cumulative effect of various infirmities and limitations on able bodied passengers. For example, a wheelchair bound passenger confined to an aisle seat, thereby complicating the rapid movement of the middle and window seat passengers in an emergency evacuation, is not addressed.

8 May 2008               Federal Aviation Administration (FAA)

AD 2008-10-51          Docket No. FAA-2008-0544

Emergency airworthiness directive (AD), sent electronically to all owners and operators of Dornier Model 328-100 and -300 airplanes

This emergency AD results from a report that, during a routine inspection, cracks were found in the lower wing panel of the rear trailing edge. Subsequent inspection of other Model 328-100 airplanes revealed several more cracks at the same location. As the AD says:

“We are issuing this AD to prevent … possible separation of the wing from the airplane …” (Emphasis added)

Within 10 flights, or 10 flight hours, or 7 days, whichever occurs first, a detailed visual inspection of the affected area must be conducted and, if cracks are found, repairs must be accomplished in accordance with a Dornier Alert Service Bulletin. In addition:

“This AD requires that operators report the results of the inspections to 328 Support Services GmbH. Because the cause of the cracking is not known, these required inspection reports will help determine the extent of the cracking in the affected fleet.”

Of interest, copies of the inspection reports are not required to be submitted to the FAA, although such copies would provide the agency with a timely overview of the problem, which has been characterized as an emergency by issuance of this AD.

2 May 2008               FAA

Docket No. FAA-2008-0014          AD 2008-09-17

Final Rule, Airworthiness Directive (AD), McDonnell Douglas DC-10 and MD-10-10F airplanes

Publishes an AD requiring repetitive inspections for the presence of stray nickel or chrome plating deposits on the air filler valve bore of main landing gear (MLG) shock strut cylinders. As the announcement relates:

“This AD results from a report of a left MLG collapse during a landing rollout. We are issuing this AD to correct stray nickel and chrome plating deposits, corrosion, and cracking of the air filler valve bore on the MLG cylinder, which could result in landing gear failure, significant damage to the airplane, and injury to personnel.” (Emphasis added)

This unsafe condition affects 75 airplanes in U.S. registry, at a cost of about $300 per inspection. Inspections must be done within 24 months of the effective date, which is 26 June 2008.

“Significant damage to the airplane” is an understatement, as a number of these airplanes, including the stretched model MD-11, have experienced gear collapse that has led to a crash and loss of the airplane.

17 March 2008          FAA

FR Doc E8-5269        Docket No. FAA-2008-0331

Notice of Proposed Rulemaking (NPRM), proposed airworthiness directive (AD), Cessna Models 208 and 208B airplanes

Requires inspection and repair of left and right wing wire bundles “before further flight.” As the announcement says:

“Improper installation of wire bundle supporting hardware can cause chafed wiring … We are proposing this AD to detect and correct damaged wiring of the auto-control wing de-ice system, fuel quantity indication, and low fuel annunciation systems. This condition could result in incorrect fuel quantity indications, loss of low fuel quantity annunciation, or loss of the auto control wing de-ice system.”

Loosely attached, chafed or otherwise damaged wires must be repaired.

This unsafe condition affects 512 airplanes in U.S. registry. Cost of inspection is estimated at $80 per airplane, but the FAA says other costs (of repairs) are not established because, “We have no way of determining the number of airplanes that may need this repair/replacement.”

10 March 2008          FAA

Docket No. FAA-2005-20245

Final Rule, Revisions to Cockpit Voice Recorder (CVR) and Digital Flight Data Recorder (DFDR) Regulations

This 124-page rule mandates upgrades to aircraft cockpit voice and flight data recorders that, according to the FAA, “will enable investigators to retrieve more data from accidents and incidents requiring investigation.”

“Because this is the safest period in aviation history, we now have to be able to analyze each accident in greater detail,” declared FAA acting administrator Robert Sturgell on publication of this final rule. “These enhancements will give us more information about the causes of accidents and find ways to avoid them in the future.”

Under this final rule, which affects manufacturers and operators of airplanes and helicopters with 10 or more passenger seats, all voice recorders must capture the last two hours of cockpit audio instead of the current 15 to 30 minutes. The new rule also requires an independent backup power source for the voice recorders to allow continued recording for 9-11 minutes if all aircraft power sources are lost or interrupted.

Airplanes (but not helicopters) operating under Parts 121, 125 or 135 of FAA regulations (that is, carrying passengers for money on scheduled and unscheduled flights) will have to retrofit some aircraft by March 2012. The rule also mandates these enhancements on all newly built aircraft and helicopters after 7 March 2010.

The new rule mandates that the recorders measure aircraft data more frequently than is now required, including the aircraft’s primary flight control movements and the pilots’ movement of the controls. The data recorders also must retain the last 25 hours of recorded information. These provisions affect new aircraft manufactured after 7 March 2010.

This final rule formalizes current FAA policy that voice and data recorders must be housed in separate units (excluding helicopters) and that no single electrical failure can disable the units. The rule also allows operators who install two combined voice and data recorders to mount one of those combined recorders in the forward part of the aircraft.

Manufacturers have two years to upgrade newly manufactured aircraft to the new standards. Some of the new requirements will have to be retrofitted to the existing fleet (these retrofits were deemed feasible and therefore did not impose an excessive burden on the industry).

The FAA estimates the new rule will cost the industry about $239 million over an 11-year time, from 2007-2017. The rule affects 4,631 existing transport category airplanes, which will require upgraded CVR capability, 259 helicopters that will need RIPS (Recorder Independent Power Supply), and 3,575 business jets for which various upgrades will be required.

The FAA did not put a dollar figure on the benefits to be obtained, stating instead:

“The rule increases the amount and quality of the information being recorded, which may result in new or revised safety rules … or in voluntary changes to airline and pilot procedures that may produce a safer fleet and operations. Although we did not adopt all of the NTSB [National Transportation Safety Board] recommendations concerning CVR and DFDR modifications, we chose the course of action that maximizes safety benefits relative to compliance costs.”

The final rule, issued three years after a proposed rule was published for comment 28 February 2005, falls considerably short of what the NTSB desires. The NTSB had classified last November its “Most Wanted” recorder recommendations as RED, indicating both slowness in implementation and because the FAA response was considered unacceptable. It seems likely that the RED classification will continue.

For example, the NTSB urged retrofit of RIPS onto existing transport category aircraft, in addition to installing RIPS on newly manufactured aircraft. The FAA said retrofit could not be justified:

“As stated, the purpose of the RIPS requirement is to ensure the CVR continues to function for 10 minutes following the loss of its main power source by having its own independent power source. The term ‘independent’ does not describe the location of the RIPS as it relates to the CVR … we state that the RIPS may be a part of the CVR or separate from it.

“Five commenters [including the NTSB] … suggested the final rule should contain a 4-year retrofit RIPS requirement similar to that proposed for the 30-minute-to-2-hour CVR conversion. The NTSB stated the benefits of such a requirement vastly outweigh the additional costs. Boeing agreed, stating that a RIPS retrofit would have significant value for in-service aircraft. …

“While the FAA recognizes the benefits of expanding the RIPS requirement beyond newly manufactured aircraft, we remain unable to mandate retrofit as a cost-beneficial change. When we considered the option for the NPRM, we found that the cost of a RIPS retrofit was considerable and the burden on current operators would be substantial.”

Regarding CVR and DFDR failure from a single electrical source, of which the NTSB was concerned, only newly manufactured aircraft will be wired to assure functioning in the event of a single electrical failure:

“The FAA considered this option [of retrofit] while developing the NPRM and found that a wiring retrofit represents a significant economic burden, and could require extensive aircraft rework in order to rewire not only recorder systems, but other aircraft systems that are affected by changes made for the recorders … The final rule remains applicable only to aircraft manufactured two years after this final rule.”

The NTSB wanted a mandatory requirement for dual CVR/DFDR installation, one placed in the aft of the aircraft and the other well forward, in the nose. The FAA again cited cost, encouraging voluntary but not required installation:

“We did not propose the installation of two full sets of recording equipment, referred to as ‘dual combination recorders,’ as recommended by the NTSB because of the substantial costs involved. We did propose that a RIPS be installed for the CVRs on newly manufactured planes.”

The NTSB is not persuaded by the FAAs logic on costs, saying in its commentary on the NPRM:

“The Board is concerned that the failure to address many of the more significant recorder recommendations at this time will ultimately result in a larger economic obligation for industry and may delay implementation of the associated safety improvements. This is particularly true for the Airbus A380 and Boeing 787, which are in preproduction, making this an ideal opportunity to implement dual combined recorders as well as cockpit image recorders.”

The NTSB wants image recorders to complement CVRs/DFDRs by capturing the instrument panel and pilots’ manipulations of the controls. Also, the NTSB viewed image recorders as a stopgap for airplanes not equipped with CVRs/DFDRs. The NTSB call for video recorders was made in the wake of the 2002 air charter crash of a King Air 100 that killed Sen. Paul Wellstone; the accident aircraft was not required to have flight data or cockpit voice recorders, but a video record of instruments and control motions in the cockpit was seen as a cost-effective solution.

The FAA rejected the notion of requiring the installation of image recorders, although the technology exists to do so. The FAA said:

“The NTSB noted that adding a properly placed cockpit video camera would allow DLCs [Datalink Communications] displayed to the crew to be recorded on the video image recorders. Since the use of video technology would not require any modifications to an aircraft’s communication or display systems, the NTSB stated that this approach to recording DLCs might greatly reduce the time and expense of retrofitting older aircraft.

“Our NPRM did not propose the installation of cockpit video cameras and our regulatory evaluation did not include them in cost estimates or benefits analysis, nor has the use of cockpit video been proposed for public or industry comment. The issue of cockpit video is unsettled and would dramatically delay the implementation of DLC standards that are already being developed internationally. The FAA is not averse to certification of an image recorders system that meets the operational requirements of this rule, but no image recording system will be mandated to comply with DLC recording requirements.”

To this FAA comment, a number of observations are due. First, the NTSB did not propose image recorders solely to capture data link messages displayed on the instrument panel. Rather, that was but one of many benefits foreseen by the NTSB, some others being: to record the presence of smoke in the cockpit (and whether or not the crew donned smoke goggles and oxygen masks), to record switch and toggle positions, to record crew manipulation of throttles and flight controls, and to record key information shown on the primary flight displays (or loss of such displays).

Second, the International Civil Aviation Organization (ICAO) has recommended the use of image recorders.

Third, image recorders would provide a stopgap for those airplanes and helicopters not now required to be equipped with CVRs/DFDRs.

Fourth, the “unsettled” situation averred to by the FAA results in large measure because of its failure to press the issue with industry. The technology to provide image recorders now exists, and in fact the cameras have been successfully tested in both day and night conditions in the cockpit.

The FAA does indicate that data sampling rates will be increased from greater than once per second to once every half or quarter second, thus responding to an NTSB call for more granulated data to measure the sequence of catastrophe in an accident investigation. However, the rule stands silent on the NTSB’s recommendation for additional parameters to capture rudder reversals on B737 aircraft. Uncommanded rudder reversals have caused in-flight upsets and at least two fatal crashes. Although the rudder control system has been modified on B737 aircraft to prevent their recurrence, the FAA has not mandated the additional parameters called for by the NTSB.

On 11 February 2008 the Chairman of the NTSB, Mark Rosenker, wrote FAA Administrator Sturgell expressing dismay regarding the recording of rudder parameters on the 737. This letter is significant for at least two reasons: (1) it shows the difficulty in getting seemingly straightforward recommendations adopted, and (2) stands in sharp contrast to Sturgell’s “happy talk” about the final rule. Rosenker’s letter said, in part:

“The FAA’s final rule was delayed while Boeing and 737 operators dealt with significant changes to the rudder system on these airplanes, which had been mandated by the FAA as a result of the USAir flight 427 accident … On September 5, 2006, the FAA published a supplemental NPRM (SNPRM), ‘Revisions to Digital Flight Data Recorder Regulations for Boeing 737 Airplanes and for Part 125 Operators,’ which requested more current data on the status of the 737 fleet and the anticipated costs of installing the proposed monitoring equipment. The SNPRM also announced that the FAA would not require the recordation of each rudder pedal force (four sensors total) but, rather, would require a single rudder pedal force sensor located ‘midstream’ in the rudder control system. In the SNPRM, the FAA indicated that equipping the 737’s DFDR system to record each rudder pedal would involve significant, costly, and time-consuming alterations to the structure of the 737.

“After the SNPRM comment period closed, Safety Board staff attempted to arrange a meeting with FAA staff to review in detail the extensive modifications that the FAA believed would be associated with a four-transducer system. Board staff did not believe that such a system would involve the cost-prohibitive modifications the FAA believed were necessary for this revision. However, because this issue was the subject of rulemaking, the FAA indicated that it could not discuss these details with the Board.

“For several years, newly manufactured 737s have been equipped with DFDRs that record many, but not all, of the additional parameters recommended. However, these DFDRs record only a single rudder pedal force (four sensors total) identified by the Safety Board as critical to understanding loss-of-control accidents. Because the FAA continues to indicate that it will not take the recommended action 8½ years after these recommendations were issued … Safety Recommendations A-99-28 and -29 were classified ‘Closed – Unacceptable Action’ at the Board’s November 8, 2007 meeting.”

It would appear that this final rule does advance the state of recorders, mostly for new aircraft, but it does not satisfy about half of the NTSB recommendations. Rather, the rule implements those changes that can be done at modest cost (e.g., less than the cost of one airliner over ten years), but it does not impose the sort of sea-change envisioned by the NTSB.

9 March 2008            Environmental Protection Agency (EPA)

FR Doc E8-7035       Docket No. EPA-HQ-OW-2005-0025

Notice of Proposed Rulemaking (NPRM), Drinking Water Regulations for Aircraft Water Systems

EPA proposes to place aircraft water supplies under the Safe Drinking Water Act (SDWA), thereby placing these mobile water systems under provisions typically reserved for stationary public water systems. The EPA, not the Federal Aviation Administration (FAA), has responsibility for aircraft water purity, under its mandate to ensure the safety of all “public water systems.”

This 28-page NPRM proposes new testing procedures to insure that water loaded into aircraft potable water tanks is free of microbial contamination. The NPRM proposes a schedule to make the nation’s airlines follow a schedule for sampling water used in galleys and restrooms, as well as for keeping records, notifying the public of problems and taking corrective action. The aim is to limit the level of bacteria, such as coliform, in the water.

Coliform germs, though not harmful in themselves, can signal the presence of serious pathogens such as E. coli.

“We’re upgrading airline drinking-water standards to first-class status with better testing, treatment and maintenance,” said Benjamin Grumbles, EPA assistant administrator for water, when the proposal was issued.

Selected passages from the NPRM indicate what this is all about:

“The primary purpose of the proposed Aircraft Drinking Water Rule (ADWR) is to ensure that safe and reliable drinking water is provided to aircraft passengers and crew. …

“The proposed ADWR seeks to protect against disease-causing microbiological contaminants or pathogens through the required implementation of aircraft water system operation and maintenance plans that include best management practices, air carrier training requirements, and periodic sampling of the onboard drinking water. …

“In 2004, EPA found all aircraft water systems to be out of compliance with the [drinking water regulations]. According to the air carriers, it is not feasible for them to comply with all of the monitoring that is required in the existing regulations. Subsequently, EPA tested 327 aircraft of which 15 percent tested positive for total coliform. In response to those findings, EPA embarked on a process to tailor the existing regulations for aircraft public water systems. In the interim, EPA placed 45 air carriers under Administrative Orders on Consent (AOC) that will remain in effect until tailored aircraft drinking water regulations are final. …

“In the 2004 … compliance study, 327 passenger aircraft belonging to ATA [Air Transport Association] and non-ATA members were randomly tested at 12 U.S. airports that served both domestic and international routes … In regard to microbial presence, 15 percent (49/327) of the aircraft tested positive for total coliform, and 4.1 percent (2/49 aircraft) of these total coliform aircraft also tested positive for E. coli/fecal coliform. …

“The proposed rule requires disinfection and flushing to be conducted within 72 hours in certain situations, for example after receiving lab results indicating two fecal-coliform positive samples or a single fecal coliform or e-coli positive sample (except where the water system is physically shut off). EPA understands that this will generally require bringing the aircraft to a designated maintenance facility equipped to perform disinfection and flushing.

“As far as EPA is aware, there are currently no procedures or requirements for recording information regarding where, how much, and when water is boarded … EPA believes that recording such information could help identify potential hazards from water source(s) in the event of a total coliform-positive sample. …

“Due to the nature of violations, or other events that require the restriction of water service, and the transient nature of the population served, air carriers must provide notification to passengers and crew as expeditiously as possible, but no later than 24 hours after being informed of sample results … Notification must be in a form and manner reasonably calculated to reach all passengers and crew while onboard the aircraft by using one or more of the following forms of delivery:

* Broadcast over public announcement system on aircraft;

* Posting of the notice in conspicuous locations throughout the area

served by the water system. These locations would normally be the

galleys and in the lavatories of each aircraft requiring posting.

* Hand delivery of the notice to passengers and crew. …

“The air carrier must report to EPA within 10 calendar days the failure to comply with the monitoring or disinfection or flushing requirements of this proposed regulation.”

EPA estimates that the cost of the new requirements will be slightly more than $8 million. About 3 percent of the cost will be borne by the EPA, the rest by the airlines.  The EPA estimates a negligible cost per ticket:

“EPA assumes that air carriers will pass on some or all of the costs of a new regulation to their passengers in the form of a ticket price increase. EPA estimates that 708.4 million passengers travel each year on aircraft that are affected by the ADWR. The cost passed on to passengers can be roughly estimated by dividing the air carriers’ annualized costs incurred by the number of passengers traveling each year. Based on this approximation, EPA estimates that passengers could face a relatively negligible increase of about one cent per ticket.”

Of interest, the FAA does not estimate the cost per ticket when assessing a safety initiative. Rather, the agency figures the total cost to the industry, which tends to be intimidating and quashes the likelihood of the safety improvement being adopted. For example, the FAA placed the cost of fuel tank inerting against explosive vapors at hundreds of millions of dollars. Not publicized was an internal working group estimate that inerting would cost about 25 cents per ticket.

One wishes that all safety initiatives propounded by the FAA adopt the EPA standard of estimating the price per ticket.

Comments on this NPRM due 8 July 2008. Dinkar Mokadam, a safety specialist with the Association of Flight Attendants, expressed concern about the NPRM. “I don’t think carriers can be relied upon to do self-audits, especially in this economic climate.”

The ATA believes the EPA testing of water in aircraft tanks was flawed and that the proportion of aircraft not meeting the EPA standard was closer to 5 percent than 15 percent.

There may be a security aspect to the water quality issue – the susceptibility of aircraft water systems to terrorist attack. One possible scenario: a slowly-dissolving capsule containing a strong pathogen inserted into the airplane’s water tanks, or pumped in by a water-supply truck. Carbon filters in the supply lines, placed to remove particulate matter, might well serve a critical secondary role in forestalling such a dissolving capsule scenario.

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