FAA Reauthorization: Forging Consensus on ‘Must Pass’ Legislation

ALPA Works to Advance Its Legislative Priorities

By ALPA Staff

The reauthorization of the FAA is “must pass” legislation. Without continuing authorization by Congress, the FAA will face a shutdown that will stymie operations, defer necessary innovation, and, should it be protracted, threaten the safety of the national airspace system (NAS). Such a scenario is universally unwanted, and work is under way in both the U.S. House of Representatives and Senate to reauthorize the FAA.

Bills have been introduced (S. 2658/H.R. 4441) that are working their way through the legislative process. The Senate passed its version (H.R. 636) by a vote of 95 to 3 on April 19, just before this issue went to press. The House bill was approved by the Transportation and Infrastructure Committee on February 11, along a largely partisan vote (two Republicans joined all the Democrats in voting no). Both bills provide federal resources to keep the agency funded and operational—the House for five years and the Senate through 2017. Provisions are also included in each bill for NextGen implementation, improving runway safety, streamlining aircraft certification, establishing consumer protections (such as refunds for lost bags), funding the Essential Air Service Program, requiring protocols for cybersecurity, and more. To see the text of both bills, go to www.congress.gov.

Legislative Insider: Why does the Senate bill have an H.R. number? Per the U.S. Constitution, all revenue bills must originate in the House of Representatives. Because the FAA bill has tax provisions, the Senate took up an unrelated House bill (H.R. 636), struck out the underlying bill language, and inserted the language in the Senate version, S. 2658, by amendment.

Extension redux? The 2010 FAA reauthorization bill became law after 23 short-term extensions. The authorization from that legislation expired last fall, and Congress has passed two extensions to keep the FAA operational through July 15. With only two months and limited days on the congressional schedule, time is short to forge a consensus between the two chambers and pass a comprehensive bill before the current extension expires.

 

The following is a status report on ALPA’s priorities.

First officer qualifications

Following four tragic airline accidents that occurred between 2004 and 2009 that accounted for more than 120 deaths, Congress directed the FAA to strengthen pilot training and qualification rules. Since these new rules went into effect, there has not been a single accident involving a passenger airliner due to pilot training or qualifications.

Despite the obvious increase in safety, some have cited these rules as contributing to a “pilot shortage.” The first officer qualifications, which require between 750 and 1,500 hours of flight experience to fly at a Part 121 carrier, have received special attention from the Regional Airline Association, which is looking for a legislative scapegoat for the unwillingness of some of its members to adequately compensate their pilots. Some regional airlines are having problems retaining pilots due to low pay and benefits and poor quality of life—not from necessary safety-critical pilot training and qualification standards. Thanks to ALPA’s advocacy over more than two years, neither the House nor Senate has taken any action to change the existing rules. Neither bill includes a rollback or change to first officer qualifications and training.

Safe air transport of lithium batteries

While lithium batteries represent a significant technological improvement over older battery technology, due to their high energy density and flammability, these batteries can initiate and burn violently when exposed to high temperatures or short-circuit. The lack of comprehensive safety provisions for the carriage of lithium batteries as cargo aboard airliners, especially all-cargo aircraft, continues to pose risks to air transportation.

International guidance implemented on April 1—the International Civil Aviation Organization’s (ICAO) Technical Instructions for the Safe Transport of Dangerous Goods by Air—made significant improvements to provisions under which lithium batteries are shipped as cargo. The new instructions contain several important provisions that will improve safety, but they don’t entirely eliminate the risk in shipping lithium batteries by air. The instructions include

  • banning all lithium-ion batteries from being carried as cargo on passenger flights,
  • setting the maximum charge for all lithium-ion batteries carried as cargo on all-cargo aircraft at 30 percent, and
  • prohibiting excepted packages of batteries from being shipped in the same box to avoid the application of many of the most important dangerous goods safety regulations.

ICAO technical instructions regarding the air transport of lithium batteries apply only to international operations. The U.S. Department of Transportation (DOT) will need to harmonize rules with ICAO’s new technical instructions before similar regulations are mandated for domestic carriage of lithium batteries. While most U.S. passenger carriers already have voluntarily banned lithium-ion batteries as cargo, regulations that conform to all ICAO technical instructions are essential to putting universal standards in place. Lithium-metal batteries have been banned as cargo on passenger aircraft in the U.S. and Canada for years.

A provision that ALPA advanced is included in the Senate FAA reauthorization bill and would mandate full harmonization with ICAO technical instructions. The House bill contains a provision that requires harmonization of the ICAO technical instructions that relate to passenger operations. It also calls for international cooperation to improve the understanding of shipping regulations.

ALPA believes that the DOT and the international community must do more to improve the safe carriage of lithium batteries. Improved packaging standards that would prevent a fire from spreading outside of a package must be developed and implemented. In addition, pilots should be notified about any lithium battery shipments on their aircraft and be given information about the location and size of the lithium battery shipment.

ALPA is also urging the DOT to proactively regulate lithium batteries shipped by air. The DOT should recognize the United Arab Emirates General Civil Aviation Authority’s report on the Sept. 3, 2010, UPS Flight 6 accident in Dubai and the NTSB report on the Asiana Airlines Flight 991 accident on July 28, 2011, as meeting the threshold established by the FAA Modernization and Reform Act of 2012 to issue regulations. All lithium batteries shipped as cargo by air should be fully regulated as dangerous goods.

Playing Defense for the Win: ALPA stopped a full-court press by medical device manufacturers and the lithium battery coalition for a carveout for “medical device batteries” in the Senate bill—thanks to pilot advocates and direct ALPA lobbying calling for one level of safety for all lithium batteries.

Legislative Insider: The 2010 reauthorization bill included a provision known as “Section 828,” which prohibits the U.S. Department of Transportation from issuing any regulation more stringent than that of ICAO—unless a “credible report” by an investigative body determines that lithium batteries contributed to an airline accident. Republicans in Congress have adamantly refused to repeal this provision.

 

Secondary cockpit barriers

Shortly after 9/11, Congress and the FAA required the installation of hardened cockpit doors on most airliners as one of many new layers of security. These doors improve security but don’t prevent unauthorized individuals from entering the cockpit when they must be opened at various times during normal flight operations.

As demonstrated by the recent terrorist attacks in Brussels, Belgium, airlines remain a high-risk target. Secondary cockpit barriers are a cost-effective, efficient deterrent to a cockpit breach. When deployed, they allow time for the flight crew to secure the cockpit door. ALPA has tirelessly advocated for secondary cockpit barriers for many years, supporting a legislative mandate for the installation of secondary barriers as called for in H.R. 911 and S. 911.

Because of the ongoing campaign by ALPA pilots and the family of Capt. Victor Saracini (United), who perished in the terrorist attacks on 9/11, both the House and Senate FAA reauthorization bills include provisions to require secondary cockpit barriers on all new airliners. ALPA will continue to advance this important safety measure as the reauthorization bill moves forward.

ALPA Champions Standing Up for Safety: Rep. Andre Carson (D-Ind.) offered an amendment during committee consideration of H.R. 4441 requiring all new airliners be equipped with secondary cockpit barriers. Despite vigorous opposition, the Carson amendment passed by voice vote. A similar scenario played out on the Senate floor when on April 7 Sens. Pat Toomey (R-Pa.) and Bob Casey (D-Pa.) successfully passed a nearly identical amendment.

 

Science-based fatigue regulations for all-cargo operations

While flight- and duty-time regulations for passenger operations have been updated to reflect changes in sleep science, all-cargo operations are still regulated by decades-old fatigue rules. ALPA has advocated for science-based fatigue rules for cargo operations and will continue to support one level of safety. The House bill doesn’t include any cargo-related fatigue provisions. In the Senate, Sen. Barbara Boxer (D-Calif.) offered the Safe Skies Act as an amendment that would require science-based fatigue rules for all-cargo operations. The Senate did not vote on the Boxer amendment.

Unmanned aircraft systems

The debate about integration of unmanned aircraft systems (UAS) into the NAS has consumed considerable attention in the context of the FAA reauthorization legislation. ALPA’s position with respect to UAS is that their operation must not introduce any hazard that would negatively impact the safety of the NAS. ALPA supports the safe integration of UAS into U.S. airspace and recognizes the potential commercial and societal benefits this technology presents. However, safety and technology standards must be in place before a UAS can occupy the same airspace as manned aircraft or operate in areas where UAS might inadvertently stray into airspace occupied by airliners. If UAS share civil airspace, both airline pilots and air traffic controllers need to be able to see them on their respective displays. Further, the UAS must be equipped with active collision-avoidance technology. If the UAS is not intended to be operated in the same airspace as airliners, then those restrictions must be programed into the UAS so that they can’t be overridden. Education, and in some cases licensing, for UAS operators should also be part of the safe integration strategy. Data have shown that experienced licensed pilots operating in the NAS can plan for contingencies involving weather, system malfunction, and operations around other aircraft or near critical infrastructures such as airports. They also understand the role of ATC and know where to go for help should an unforeseen circumstance arise.

Both FAA reauthorization bills contain relatively similar language directing the FAA to move forward with UAS integration into the NAS, including expanding the role and operational capabilities of UAS test sites, streamlining the exemption process for operational permits for small UAS (sUAS), creating a framework for sUAS air transport of commercial goods, creating a micro class of UAS that weigh under 4.4 pounds (including payload), establishing a test program for the implementation of an unmanned aircraft traffic management system for UAS between the ground and 400 feet above ground level, increasing enforcement provisions for unsafe operations, creating a UAS hazard mitigation test program around airports to prevent unauthorized access to critical airspace, and a variety of special-use exceptions related to specific business and governmental purposes.

Many of the amendments that Congress has considered display a frustration with the lack of progress coming from the FAA on UAS integration. This is especially true with regard to a long-overdue rule dealing with sUAS commercial operations. Both chambers of Congress do agree that UAS should not be operated near airports where they could inadvertently stray into the flight path of an airplane.

Uber Air? The prospect of aviation ride-sharing for hire should be unequivocally rejected. While efforts were made to include amendments to the FAA reauthorization bill to allow “Uber” in the air, ALPA’s ongoing education efforts about the threat to safety should unregulated for-hire passenger air travel be allowed was successful in preventing this type of operation in the U.S.

 

Strengthening safety reporting programs

The Aviation Safety Action Program (ASAP) is an important, collaborative tool that enhances aviation safety through the analysis of voluntarily reported safety events and discrepancies that lead to proactive operational refinements and changes that can improve safety and prevent future accidents and incidents. The safety benefit of ASAP and voluntarily submitted aviation safety information can be improved and increased by automatically accepting ASAP reports so that data can be utilized sooner.

Currently, the acceptance process may take weeks waiting for the Event Review Committee (ERC) to meet, delaying safety benefits. Even with automatic acceptance, a report could be excluded when the ERC convenes and the report is determined to meet one of the five established exclusionary criteria, but until then the safety benefit would be realized immediately. Several ASAPs already have automatic acceptance protocols. This model should be universal to ASAPs. ALPA successfully advocated for the inclusion of the automatic acceptance of ASAP reports in the base text of the House FAA reauthorization bill.

Third-class medical certificates

Both the House and Senate FAA reauthorization bills include provisions addressing medical examinations for third-class medical certificates; however, each chamber’s approach is significantly different. The Senate FAA bill includes previously passed language on third-class medical reform for general aviation pilots, which will improve the overall medical certification process and maintain the safety of U.S. airspace. The provision offered by Sen. Jim Inhofe (R-Okla.) was developed in collaboration with ALPA and the Aircraft Owners and Pilots Association. The Senate bill requires an online medical course every two years, a physical by a physician every four years, and makes several improvements to the special-issuance process that will benefit ALPA members and pilots who hold first- and second-class medical certificates. The House provision eliminates any required medical examination for third-class medical certificates and makes no improvements to the special-issuance process. ALPA supports the Senate provision.

Security

In response to recent events involving criminal activity of airport workers, the Senate took action in its FAA reauthorization bill to change airport security protocols. An amendment was adopted to require rulemaking to consider expanding disqualifying offenses during airport and airline background checks for security identification display areas (SIDA) access. One important provision of the amendment adds a waiver process for employees who are denied a SIDA badge because of an erroneous background check. This waiver process has long been a priority for ALPA and is a considerable win that will help ALPA members who are mistakenly denied a SIDA.

Pilot-in-command authority

FAR 91.3 establishes that the pilot-in-command of an aircraft is the final authority regarding the safe operation of that aircraft. This regulation has been in place for decades, yet airlines still initiate punitive actions against a pilot who makes sound decisions based on the safety interest of the operation versus the economic interest of the airline. At ALPA’s urging, the Senate included a reiteration of pilot-in-command authority in its FAA reauthorization bill. The House did not include a similar provision.

HIMS

The Human Intervention Motivation Study (HIMS) program helps pilots with substance-abuse challenges return to the cockpit. The program is a combined effort of the FAA, industry, ALPA, and medical professionals and is funded with congressional appropriations. Since the program’s inception, ALPA has been successful in advocating for its funding in Congress. However, the program doesn’t have a specific authorization that helps establish the program as an agency priority. ALPA is pleased that the Aviation Innovation, Reform, and Reauthorization Act of 2016 includes a technical fix to establish an authorization for the HIMS program. Moving forward, ALPA will continue to push for authorization and full funding of the HIMS program.

Authorization for Pacific island airports

Continued authorization is critical for long-range transpacific alternate airport availability. Midway and Wake Island are enroute alternate airfields that serve as emergency stopping points on transpacific routes. Both airports operate at a cost of $1 million per year. ALPA successfully advocated for continued authorization in the base text in both the House and Senate bills.

Lasers

ALPA has partnered with the FBI and the FAA to increase public awareness regarding the dangers of shining a laser at an aircraft. Unfortunately, the number of laser strikes on aircraft set another record in 2015. ALPA supports Senate-approved language that increases the civil penalty to $25,000 for shining a laser at an aircraft, an increase over the current penalty limit of $11,000.

ATC reform

The cornerstone of H.R. 4441 is a “transformational” reform of the ATC system. Based largely on the template of NAV CANADA, the House proposal creates a not-for-profit corporation outside of the government to oversee and manage the nation’s air traffic control system.

How does the House’s potential reform of the air traffic organization (ATO) stack up against ALPA’s existing policy? See below.


ALPA Policy

House Plan

Any ATO must be a not-for-profit entity
✔Not-for-profit organization
Funding for the ATO must be reliable, predictable, and sufficient for long-term investment in continuous modernization
✔Establishes a long-term, predictable funding stream through user fees
ATO governance must include the system’s operators (pilots and air traffic controllers)
✔Guarantees board seats in new ATO for pilots and controllers
Any change to the ATO must retain collective bargaining rights for all affected employees
✔New ATO guarantees all labor rights for existing employees
Any change to the ATO must maintain or raise the current level of safety in the airspace
✔The FAA will maintain oversight over safety, operations, and certification
Costs for the ATO must be spread equitably across all users of the system
◺Most general aviation and corporate aviation operations are excluded from the fee-based system

What’s missing?

In addition to any rollback of first officer qualifications and lithium battery exemptions, the reauthorization bills are also noticeably devoid of onerous provisions to require cameras in the cockpit, additional psychological testing, or changes to the Railway Labor Act. While public advocacy campaigns are critical for championing ALPA’s legislative priorities, the Association’s Government Affairs Department works behind the scenes to keep ill-advised ideas from becoming federal policy.

This article was originally published in the May 2016 issue of Air Line Pilot.

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