FAA Turns Over Increasing Inspection Authority to Manufacturers

Four years ago, the NTSB questioned whether manufactures like Boeing should be allowed to self-certify that their aircraft designs meet FAA requirements.  The NTSB suggested that “self-certification” may have contributed to the battery fires that were being experienced on Boeing’s 787s.  After all, it’s the FAA's job to make an independent determination that an aircraft design is safe.  It makes little sense to pass that job to the manufacturer, who is hardly independent.

The FAA’s response was to delegate even more authority to manufacturers.  In fact, the GAO reports that 90% of all aircraft certification work is now outsourced to the manufacturers themselves. 

How is that working out?  Not surprisingly, not so well.  According to documents obtained by the Seattle Times,  through 2015, Boeing was fined $13 million to settle FAA proceedings arising from falsification of certification and repair work.  The Seattle Times noted that one Boeing mechanic told FAA investigators that he had been entering false data into aircraft inspection records for at least seven years.

Bogus Airplane Parts and a Cessna 182 Crash

A courageous client speaks to Stephen Stock about the risks to the flying public. 


FAA Kept Sleeping Controllers Study Results Secret

Air traffic controllers fall asleep on the job.  At least they do occasionally. That came as big news in 2011, when two airliners landed at Washington’s Reagan National Airport without ATC help because the lone controller was snoozing. No injuries there, but in 2006 a Comair regional jet crashed while taking off in Kentucky, killing 49 of the 50 people on board.   The air traffic controller who cleared the plane for takeoff didn’t notice the plane was taking off from the wrong runway.  He had slept only two hours in the previous 24.   

The question then was whether the problem of sleeping or sleep-deprived controllers was an isolated one or instead a significant, pervasive risk to aviation safety. 

The FAA paid NASA $1.2 million to find out. The NASA study's findings:  the schedules controllers work lead to chronic fatigue and pressure to fall asleep.  In fact, a third of the controllers in the study reported that fatigue was a “high” or “extreme” safety risk.  More alarming was that 6 out of 10 controllers report that they had fallen asleep or experienced a lapse in attention while driving to or from a midnight shift.  If sleepiness is making controllers unsafe to drive, it’s certainly making them unsafe to work.

The study’s conclusion was clear: 

Chronic fatigue may be considered to pose a significant risk to controller alertness, and hence to the safety of the ATC (air traffic control) system.

Perhaps most interesting is that, according to an Associated Press report, the FAA has kept the FAA’s report secret for three years.   Though completed in 2012, the study was released just this week. No explanation from the FAA as to why it has kept the study from the public for all this time.

USA Today: Cover-ups Mask Roots of Small-Aircraft Crashes

A few hours ago, USA Today published a lengthy investigative report devoted to small aircraft crashes. The conclusion:  aviation manufacturers have long concealed the fact that their defectively designed products cause aircraft crashes and injures. And the investigating agencies, including the NTSB and FAA, let them get away with it.

The report covers many of the issues we’ve touched upon before on this blog, from defective carburetors, to defective pilot seats, to faulty ice-protection systems. The report also covered a subject we’ve covered on this blog extensively – post crash helicopter fires in otherwise survivable accidents:

One of the most gruesome and long-standing problems has caused scores of people to be burned alive or asphyxiated in fires that erupt after helicopter crashes. Such deaths are notorious because they can occur after minor crashes, hard landings and rollovers that themselves don't kill or even injure helicopter occupants. The impact can rupture helicopter fuel tanks, sending fuel gushing out, where it ignites into a lethal inferno.

Using autopsy reports and crash records, USA TODAY identified 79 people killed and 28 injured since 1992 by helicopter fires following low-impact crashes. In 36 non-fatal crashes, fire destroyed or substantially damaged helicopters after minor incidents such as rollovers, crash reports show.

The report didn’t mention the most recent Robinson fire that killed the R44's pilot at Birchwood Airport in Alaska just two weeks ago.

Pilot error?

I've been saying for years that many crashes that the NTSB attributes to "pilot error" simply aren't. The USA Today report backs that up.  The report discussed the fatal crash of a single engine Piper following engine failure.  The NTSB chalked up the engine failure to pilot error.  But, as it turns out, the crash was caused by a defective carburetor float. The judge handling the case noted that the carburetor manufacturer had received more than 100 warranty claims for similar problems before the crash. Yet none of that product history made it into the NSTB report.

Ruling against Lycoming  [the engine manufacturer] and Precision [the carburetor manufacturer], Philadelphia Judge Matthew Carrafiello found evidence both might be culpable. Precision received more than 100 warranty claims concerning carburetor defects, the judge said, and Lycoming continued to use the carburetors even though it "knew of ongoing problems" with the carburetors "and of numerous plane crashes resulting from such problems.

None of that information was included in the NTSB investigation, which was aided by Lycoming and Precision and blamed Andy Bryan, the pilot, for "failure to abort the takeoff" and "failure to maintain adequate airspeed during takeoff."

According to the report, many of the crashes that the NTSB concludes are due to pilot error are actually due to defectively designed aircraft.

Federal accident investigators repeatedly overlooked defects and other dangers of private aviation as they blamed individual pilots for the overwhelming number of crashes of small airplanes and helicopters . . . The failure of crash investigators to find defective parts, dangerous aircraft designs, inadequate safety features and weak government oversight helped allow hidden hazards to persist for decades, killing or injuring thousands of pilots and passengers . . .

Manufacturers mislead the FAA

Part of the problem is that the NTSB does not travel to the site of many small airplane crashes, leaving the on-scene investigation to the FAA. Unfortunately, according to a former NTSB investigator, the FAA personnel don’t have the same investigative experience as the NTSB investigators and are easily duped by the manufacturers.

Many times what happens now is that when the accident occurs, the technical rep of the (manufacturing) company will call the NTSB and say we'll be party (to the investigation), we'll go out there and let you know what we see … the only people on scene would be perhaps an FAA guy and the field rep of the manufacturer," said Douglas Herlihy, a former NTSB investigator who now reconstructs crashes, often for plaintiffs in lawsuits against manufacturers.

"If you (the NTSB) are not there, you've got the representative from the company at the scene. His job is to skew the facts, to ignore the product difficulties and to remove the question of liability," Herlihy said.

NTSB Questions FAA's Practice of Allowing Boeing to Self-Certify its Designs

The FAA allows Boeing to certify its own design work.  That means that, at least to some extent,  Boeing now regulates itself.  That never seemed like such a great idea to me.  Afte787 batteries - melted down (left) and undamaged (right)r all, isn't it the FAA's job to make an independent determination that an aircraft design is safe?  Does it make sense for the FAA to allow Boeing -- or any manufacturer -- to grant FAA certification to itself?

Now, the NTSB seems to agree.  In discussing whether the FAA's "self-certification" policy played a role in Boeing's 787 battery problems, NTSB Chair Deborah Hersman hinted that maybe the FAA isn't doing its job:

This is an issue when you have a regulator with limited resources. . .You can delegate some of the action, but you can’t delegate responsibility.”

A regulator that allows a manufacturer to certify its own designs isn't a regulator at all.  

Airbus Rudder Pedal AD Inadequate

American Airlines Flight 587 encountered wake turbulence. The pilot countered with rudder inputs. The rudder inputs were excessive, the tail assembly failed, and the aircraft crashed, killing 265 people.

The NTSB determined that the Airbus' rudder controls are unduly sensitive and make it easy for a pilot to overstress the aircraft's structure, causing a catastrophic failure.  Now, eleven years after that crash,the FAA has issued an Airworthiness Directive against the A300 Airbus to remedy what it considers to be a problem with the aircraft’s design. 

Originally, the FAA was going to require that all the A300's be modified to limit the rudder pedals' travel.  The FAA felt that such a modification would make it much more difficult for a pilot to overstress the aircraft. That modification would have cost about $200,000 per aircraft. But Airbus convinced the FAA to allow a cheaper fix.  So for about half of that cost, the FAA will allow the A300’s simply to be equipped with a warning light on the glareshield directly in front of each pilot and an associated "stop rudder inputs" aural warning.

A Warning is a Last Resort

Any engineer will tell you that when a hazard is discovered, the best option is to design out the hazard. If that can’t be done, then the hazard should be guarded against. If that isn’t feasible, the last resort is to warn against the hazard. That’s what’s known as the engineer’s “Safety Hierarchy.”

Here, there was a feasible way to change the design to eliminate the hazard – limit the travel Stress Performance Curveof the rudder pedals. Thus, a warning is the wrong way to go.

A Warning Is Not Always Appropriate.

Warnings work well in some situations. A warning system that alerts a pilot to low fuel is great. A warning system that alerts the pilot that some system is overheating is also useful. But warning systems that activate in emergency situations are often useless.

The problem is that under stressful situations, a pilot’s performance can degrade rapidly. The pilot is unable to comprehend a warning’s meaning in an emergency and respond appropriately. That’s what the BEA (Europe’s NTSB) concluded happened to Air France Flight  447. Confronted with an emergency, the crew could not comprehend and react to the Airbus’ aural warnings. As summed up by Paul Marks:

Despite a stall warning sounding continually, it was ignored and the pilot kept the plane's nose pointing upward - while the plane was in fact plummeting toward the ocean. All the crew needed to do was push the nose down to regain lift - but they didn't.

In the first minute after the autopilot disconnection, the failure of the attempt to understand the situation and the disruption of crew cooperation had a multiplying effect, inducing total loss of cognitive control of the situation," the BEA says.

The combination of the [Airbus] warning system ergonomics, and the conditions under which [Air France] pilots are trained and exposed to stalls during their professional and recurrent training, did not result in reasonably reliable expected behaviour patterns," the BEA adds with massive understatement.

Stress Performance Curve

Why would a trained crew essentially ignore the aircraft’s warning systems in an emergency? A little stress helps people focus, and they tend to perform better.  But after a point, stress makes it difficult, if not impossible, to think.  A Vietnam fighter pilot used to tell me: “The first thing that happens in an emergency is your IQ gauge goes to zero.” 

The Airbus' rudder pedals can be feasibly redesigned to eliminate the hazard. That makes a warning system the wrong solution.

The FAA's Three Biggest Problems

Why doesn’t the FAA do a better job of promoting aviation safety?

1. The FAA’s Inherent Conflict of Interest.  When the FAA was created, it was charged with bothFAA regulating aviation and promoting it. But most aviation regulations don't promote aviation -- they constrain it. The FAA’s inherent conflict of interest explains why the FAA so often ignores the NTSB’s aviation safety recommendations.

2. The Problem of the Captive Regulator.  Putting aside the inherent conflict of interest, the FAA is simply too close to the industry it regulates to do an effective job. This problem is not unique to aviation.   For example, the drug industry has tremendous influence over its regulating agency, the FDA.  We saw that play out most recently last year, when we learned that a number of the FDA committee members who voted against requiring stronger warnings on a drug's label had economic ties with the drug's manufacturer. In California, we learned that the Public Utilities Commission was too cozy with the gas utility it was supposed to regulate. It let the utility slide again and again until September 2010 when a gas explosion in San Bruno killed 8 and damaged or destroyed more than 40 homes.

3. Bureaucratic Incompetence.  Sometimes, it seems that bureaucratic incompetence is the simplest reason for the FAA’s failure to act in the face of a known ongoing hazard. What else explains the night vision goggle debacle?

EMS Night Vision Goggles: FAA Incompetence Exposed

Stephen Stock, an investigative reporter for NBC, talks about the hazards posed by night vision goggles improperly installed in much of the nation's EMS helicopter fleet. I was happy to offer Stock my thoughts. The FAA refused to comment on camera.

Imagine how difficult it must be for Rand Foster to go to work each day.



Office of Special Counsel Warns of Gross Mismanagement at the FAA

In 2008, a safety inspector determined that nearly half of the nation's EMS helicopter fleet--about 300 aircraft--have improperly installed night vision systems. As installed, the systems are a hazard to the air ambulance crews and the patients they carry. The inspector felt the aircraft should be grounded until they were fixed. The FAA initially agreed, but then changed its mind. Apparently, the FAA decided to look the other way because of the "negative publicity" a grounding would generate.

Pretty alarming.  Ultimately, the United States Office of Special Counsel became involved, taking the unusual step of writing to President Obama.

[The United States Office of Special Counsel] found a substantial likelihood that FAA officials and employees engaged in violation of law, rule or regulation, gross mismanagement and an abuse of authority, all of which contributed to a substantial and specific danger to public safety.

It's been three years, but the White House has done very little.  So now the OSC has written the President again.

The OSC continues to be concerned about the improperly installed night vision goggle systems that plague the nation's EMS helicopter fleet.  But it is also concerned about a litany of other whistleblower complaints against the FAA that the OSC has received, investigated and substantiated.  The complaints range from FAA personnel allowing Delta Airlines to perform improper maintenance to air traffic controllers sleeping on the job.  The FAA is aware of the complaints, but has done little about them.

One senses a bit of frustration in the Special Counsel's latest letter:

This transmittal is the final chapter in OSC's formal oversight process. . .additional enforcement action rests with Congress or the White House.  Given the recurring and serious nature of these concerns, I write with a strong recommendation that more rigorous oversight measures be put in place at DOT and FAA to ensure a higher standard for aviation safety. 

OSC Letter FAA 2012

FAA Declines To Close LSA Loophole

Operators have begun using LSAs -- particularly "trikes" -- to give air tours over the Hawaiian islands.  LSAs fly low and slow, just like helicopters, and are much cheaper to run.  But they have a terrible safety record.  And it's illegal to use LSAs for commercial tours.

If it is illegal to use LSAs for commercial tours, how do LSA operators get away with it?  As I wrote here, they simply say that they are taking the passenger for an introductory "flight lesson," rather than a tour. 

The FAA now recognizes that operators are taking advantage of the regulatory loophole. According to one FAA official, "It appears some operators are trying to get around the air tour provision by offering flights under the guise of introductory flying instructions."

The Honolulu Star-Advertiser reports that  the FAA's plan for dealing with the problem is to  step up surveillance:

the plan will call for more unannounced visits, interviews with pilots and record examinations of aircraft operators. Officials also held a meeting with weight-shift control operators to encourage more voluntary compliance.

The FAA says no new regulations are needed, since the existing rules are clear.  Yes, the rules are clear.  That's the problem.  It's clear that it's legal to take a paying passenger for an introductory flight lesson.  And so that's exactly what the tour companies operating LSAs will continue to do.

Air Traffic Controllers Sleeping on Duty: A Simple Solution?

There's not a lot of air traffic at night. So some air traffic control towers close altogether.  Any landing aircraft is on its own.  Other air traffic control towers are staffed with just one controller.  Not surprisingly, lone controllers working the night shift tend to doze off. 

That little secret is now out. That led to the resignation of the head of the Air Traffic Organization. Hon. Mark R. Rosekind And then, just yesterday, the FAA announced that a second controller will be added to the overnight shift at 27 airports

Sounds like moves in the right direction. But what do you get when you put a second controller into a dark, quiet control tower in the middle of the night? 

Two sleeping air traffic controllers.

It's not a matter of just adding staff.  It's a matter of dealing with the somewhat complicated issue of how night shifts disrupt a workers' circadian rhythms. At least so says Dr. Mark R. Rosekind, the newest member of the the National Transportation Safety Board. 

I had the pleasure of hearing Dr. Rosekind speak a couple of weeks ago at Menlo High School in Atherton, California. Dr. Rosekind is one smart guy.  And he happens to be a sleep expert. In fact, Dr. Rosekind was the Director of the Center for Human Sleep Research at Stanford University. So he knows a thing or two about "fatigue management." 

Unfortunately, the FAA isn't required to listen to the NTSB, and frequently doesn't.  In the past, when it comes to fatigue risk management, an act of congress was required to get the FAA to do something.

Not to worry.  This time the FAA, or at least the US Transportation Secretary, Ray LaHood, is on top of it.  He is outraged.  LaHood says he "will not sleep" until there's good safety in the control towers.  (Yes, he really said that.) 


FAA: Human Life Worth $6 Million

The FAA has issued a new rule requiring that charter airlines and helicopter operators train their employees in “crew resource management,” or cockpit teamwork, just as the major airlines do.

The FAA estimates that complying with the rule over the next 10 years will cost the charter industry $12 million. But it also expects that the new rule will result in fewer accidents, saving 20 lives over the same period. 

Is it worth it? According to the FAA, yes. Government bean counters figure that the value of a human life is $6 million. So the “savings” to society over the 10 year period is $120 million – ten times the rule’s expected costs.

The government analysis is here.

FAA Ignores NTSB Safety Recommendations

Many think that, after it completes an investigation, the NTSB can order a stop to the dangerous practice that it determined was the cause of the aviation accident.  Not so.  The NTSB has no regulatory power at all. The only thing the NTSB can do after an investigation is make a safety recommendation and hope that the FAA will adopt it.  As the NTSB puts it:

Our effectiveness depends on our reputation for . . . producing timely, well-considered recommendations to enhance transportation safety.  

There is, however, a problem.  The FAA is free to simply ignore the NTSB's recommendations.  And it usually does just that.

I've written before about the FAA's failure to implement the NTSB's safety recommendations aimed at improving the safety of  the air ambulance industry, reducing accidents from turboprop icing,  and grounding dangerous and defective aircraft.  Now the Washington Post has picked up on story.

Why do the NTSB's recommendations simply languish?  According to the Post, it's because the FAA's rule change process is complex, and because the aviation industry fights change.  But the Post notes that 

. . .many believe that the biggest cause of delay lies with the FAA itself.

Count me among them.

Unfortunately, to get the FAA to implement the NTSB's safety recommendations, it seems as though there must first be some sort of public outcry followed by an act of Congress.  At least, that was the case with the NTSB's recent recommendation aimed at reducing the number of accidents caused by pilots flying without adequate sleep.

There has to be a better way.  

The Trouble With Tip Tanks

Only modifications that carry a Supplemental Type Certificate may be legally installed on an aircraft. The Supplemental Type Certificate guarantees that the FAA has thoroughly tested and reviewed the modification. And it's the Supplemental Type CertificCessna Floatplane(Photo by TailspinT)ate that insures that the modification is safe and compatible with the particular model aircraft on which it’s being installed. Right?

Maybe not. Owners really shouldn't place too much stock in an STC. Or so says one former NTSB accident investigator. The investigator, now retired, explained to me that most owners might be surprised by how little work the FAA does before issuing an STC. Sure, the STC process is a huge paperwork shuffle for the modification's manufacturer. But it's little more than that. The process seldom entails any real independent engineering cross-check on the FAA's part.

"Give me an example", I asked. "OK,' he said. "Let's talk tip tanks."

A popular modification for many models of Cessna single-engine aircraft are wingtip extensions that

hold extra fuel. The modification for the Cessna 206, for example, adds about three feet to the aircraft's wingspan and holds an additional 30 gallons of avgas.  According to some, the added wingspan improves the aircraft's STOL capabilites somewhat.  In addition, the modification allows the pilot to operate the aircraft at a maximum weight 200 pounds higher than the stock configuration.  All that sounds almost too good to be true. It's no surprise that the tip tanks are a very popular mod.  But beware.

“The FAA did not adequately examine the aerodynamics before issuing the STC,” the investigator offered. "You really have to wonder whether the mod should ever be installed on a Cessna."

The investigator says he examined a Cessna 206 that crashed off the end of a short strip in Alaska. Ultimately, the NTSB determined the cause was pilot error. But the investigator found a couple of things along the way that piqued his interest. First, he learned that the pilot heard the stall warning sounding throughout almost the entire takeoff roll, something you wouldn't experience in a stock 206. In checking with other pilots of similarly modified 206's, the investigator found that the "always on" stall warning is typical of aircraft that have had the tip tanks installed.

As it turns out, the tip extensions changed the wing's average angle of attack. But the Cessna’s original stall warning sensor wasn't modified to reflect the new configuration. That's why the warning sounded even when the modified aircraft was flying well above the stall speed.Center of Gravity Envelope

So what's the problem with that?

“A stall warning that sounds all the time, every time, is no stall warning at all” the investigator told me. "Why the FAA let this modification pass is beyond me. Not even a note in the documentation. I’m sure the FAA wasn’t even aware of the problem, because they didn’t do any testing. And I know – I went through the FAA's files.”

And that's not all.

The modification allows the aircraft to operate at higher gross weights. In the case of the Cessna 206, 3800 pounds instead of 3600. That's a great benefit for the operator. But when the investigator examined the technical data supporting the STC's issuance, he found none to support the gross weight increase. Without that documentation -- in particular, a new weight and balance form for the pilot to use to make sure the plane was properly loaded -- operation of the aircraft at the new, higher weights was illegal and, of course, potentially unsafe.

When the investigator pointed out the oversight to the FAA Certification Branch, the office was concerned. Commercial operators scattered far and wide were operating the modified aircraft outside the aircraft's approved envelopes. "The FAA quickly generated new weight and balance charts. Impressed, I asked them how they did it so fast.. According to the FAA tech, 'we just used a pen and a straight edge.' That's right, no engineering, not testing. Just extend the lines on the stock weight and balance charts and hope for the best."

What does this all mean to the aircraft owner who has purchased an aircraft mod and the STC to go with it? Before having the mod installed, the investigator suggests asking for the engineering data that was supplied to the FAA Certification Branch, including any flight test results, the flutter tests, and the structural tests (both static and dynamic). "If that data is lacking, the owner/pilot is more or less a test pilot."

Hawaiian Helicopter Air Tour Crashes: On the Rise?

In 1994, the FAA -- hoping to reduce the number of helicopter tour crashes in Hawaii -- promulgated a controversial rule that set minimum altitudes for Hawaiian sight seeing flights.

According to an article appearing this spring in Aviation, Space and Environmental Medicine, after the rule went into effect the overall number of helicopter crashes in Hawaii decreased, but the number of crashes resulting from improper VFR flight into instrument conditions increased.  That means fewer overall crashes (especially ocean ditchings), but  more crashes into mountainsides hidden in the clouds. The number of fatal crashes remained the same.

Although its data and methodology may be questionable, the recent report concludes:

the FAA should reconsider the Rule's clause that established a minimum flying altitude of 1,500 feet, as we know higher altitudes are associated with more cloud cover. 

This conclusion delighted the helicopter industry which opposed the new minimum altitude requirement.  And a possible increase in weather-related accidents was one of the FAA's concerns from the outset.  Requiring helicopters to maintain more clearance from terrain features, and more altitude to deal with engine failure, makes it harder for them to remain clear of the clouds.  But the report fails to consider the "deviations" the FAA has issued to air tour operators that allow them to fly lower than the established minimums.  Depending on the number of deviations that the FAA issued, it may be unfair to blame the rule for the increased number of mountainside collisions.

It’s a modern day Scylla and Charybdis. (OK, you'll have to indulge me, my favorite mythical allusion because it's more accurate than saying "catch-22” or "caught between a rock and a hard place.") Is the danger posed by the close proximity to the terrain more daunting than the unpredictable cloud cover? When it spoke in 1994 the FAA said, “No -- higher altitude is safer".

New Rules To Keep Tour Helicopters Apart From Airplanes Transitioning Through Hudson River Corridor

The FAA has instituted new rules designed to keep sightseeing helicopters from colliding with airplanes that are transitioning the Hudson River Corridor near the Statue of Liberty.  The San Francisco Daily Journal, California's largest legal newspaper, published this column on how the new rules came to pass, and why they aren't enough.

FAA and NTSB Battle Over Aviation Safety

Another Zodiac In-Flight Breakup Triggers an NSTB "I told you so"

Zodiac AircraftThis past April, the NTSB called upon the FAA to ground the entire fleet of Zodiac aircraft because their wings tend to fall off in mid-flight.  As it turns out, a defect in the Zodiac's design induces an aerodynamic phenomenon known as flutter.  Flutter can destroy a wing or other control surface in a matter of seconds.  This well-known, dangerous, but rare condition is shown occurring in the tail surfaces of other aircraft types here and here

When the NTSB's issued its "urgent recommendation," a total of ten people had already been killed in Zodiacs due to flutter-induced failures.  Back then, the NTSB was under heavy fire for sitting on a long list of NTSB recommendations pertaining to a number of different aviation industry sectors while lives were being lost. Because of that, I figured that this was one recommendation the FAA would act on, and fast.

The FAA will see Zodiac's manufacturer as an easy target and move against it -- if for no other reason than to quiet its critics.

I was wrong.  The FAA refused to ground the aircraft.  Even I was surprised.

Of course, it was just a matter of time.  On November 6, another Zodiac crashed in Arkansas.   It looks like another flutter-induced failure.  That brings the death toll to 11.  On November 13, the NTSB issued an official "I told you so."

The Safety Board's urgent recommendation to the FAA was to "prohibit further flight of the Zodiac CH-601XL, both special light sport aircraft and experimental, until such time that the FAA determines that the CH-601XL has adequate protection from flutter." The FAA replied in July that they lacked "adequate justification to take immediate certificate action to ground the entire fleet." 

The NTSB's unstated question:  Just how many deaths are required before the FAA finds "adequate justification" to act?

EMS Helicopter Safety: NTSB Pushes the Envelope

There's little question that EMS helicopters are the most dangerous aircraft in the sky. EMS helicopters have a fatal accident rate 6000 times that of commercial airliners. Flying EMS helicopters is one of the most dangerous jobs in America.  In fact, according to the Washington Post, only working on a fishing boat is riskier.  And the EMS helicopter safety record is getting worse, not better.

EMS helicopterWhy, exactly, is the EMS helicopter accident record so bad?  As discussed here, one problem is that it's not clear who is ultimately responsible for overseeing the industry. State agencies, county agencies and the federal government all have a hand in oversight but no one appears to be in charge. That means that definitive industry standards cannot be established and hazards cannot be effectively managed.

This week, the NTSB recommended that the FAA take steps to address the most serious of the industry's problems. Some of the those recommendations are not particularly surprising. For example, the NTSB suggests that pilots be better trained in bad weather flying, and that helicopters be equipped with night vision equipment and autopilots.

One of the NTSB's recommendations, however, no one saw coming.  The NTSB suggests that Medicare -- which funds most of the EMS helicopter industry by paying up to $20,000 for each patient transport -- adjust its rate reimbursement structure according to the level of safety the helicopter company provides.  In plain english, the NTSB suggests that Medicare not pay air ambulance companies unless they meet certain safety standards.  NTSB board member Robert Zumwalt concedes this recommendation "pushes the envelope".  But the air ambulance record is so bad, extreme steps are necessary.

By targeting the air ambulance industry's source of funding, the NTSB is looking beyond the FAA for help in making the air ambulance industry safer.  Why not just leave it to the FAA?  For one thing, the FAA has yet to act on the EMS helicopter recommendations the NTSB made 3 years ago.  The NTSB is hoping the Department of Health and Human Services (Medicare) will be more responsive to its safety concerns than the FAA has been. 

FAA To Allow Boeing To Self-Certify Its Aircraft Designs

Aviation manufacturers have long argued that victims should not be permitted to sue for aircraft design defects because, before any manufacturer's aircraft leaves the ground, its design has to be approved and certified by the FAA. If the aircraft's design is good enough for the FAA's engineers, they argue, it should be good enough for the court system.  Judges and juries should not be permitted to second guess the FAA.

Aviation attorneys representing victims of air crashes take a different position.  They argue that the FAA "approval" process is not really an independent safety review of an aircraft's design at all.  FAA Certification ProcessRather, the FAA certifies aircraft based largely on the say-so of engineers who, though designated by the FAA, are in fact employees of the manufacturer seeking the certification. The issue of whether an aircraft's design is defective is thus appropriately left to the judgment of an independent jury. In short, the fact that the FAA certified a design doesn't really mean all that much

Now FAA certification of an aircraft's design will mean even less -- at least with regard to Boeing aircraft.  That's because the the FAA will drop out of the certification process completely for certain Boeing products.  Beginning August 31, the FAA will allow Boeing to self-certify its designs. The FAA will not even do the rubber stamping -- Boeing employees will do that too. According to the Seattle Times

The new system increases the authority of the in-house inspectors directly managed by Boeing, allowing them to review new designs, oversee testing to ensure the products meet all applicable standards, and sign off on certification

OSC: FAA Ignoring EMS Helicopter Dangers For Fear of Negative Publicity

The FAA is supposed to use its regulatory powers to promote aviation safety.  Over the years, however, it seems to have become too bureaucratic and conflicted to take decisive action when it counts most.  Examples:

Now, there's more.  In 2008, an FAA inspector determined that nearly half of the nation's EMS helicopter fleet--about 300 aircraft--have improperly installed night vision systems. As installed, the systems are a hazard to the air ambulance crews and the patients they carry.  The inspector felt the aircraft should be grounded until they were fixed.  The FAA initially agreed, but then changed its mind.  Apparently,  the FAA decided to look the other way because of the "negative publicity" a grounding would generate.

Huh?  Since when should the FAA be concerned more with negative publicity than with safety?

Recently, the United States Office of Special Counsel became involved.  Special Counsel, however, has been unable to get the FAA to respond to its inquiries.  So it has taken the unusual step of writing to President Obama.

[The United States Office of Special Counsel] found a substantial likelihood that FAA officials and employees engaged in violation of law, rule or regulation, gross mismanagement and an abuse of authority, all of which contributed to a substantial and specific danger to public safety.

The Office of Special Counsel appears more interested in EMS Helicopter safety than does the FAA.  We'll see what happens next.

OSC Letters

Suing the United States Government for an Air Traffic Controller's Negligence

Air traffic controllers work within the guidelines set forth in the Controller's Handbook (pdf), which they often call "the Bible."  The Handbook is hundreds of pages long, and controllers must follow it to the letter.  If they deviate and an accident results, the Federal Tort Claims Act permits the victim to sue the FAA for negligence. 

Sometimes, the Handbook doesn't cover a particular air traffic situation. In those cases, the controller is supposed to simply use his best judgment.  But this would seem to present a problem for the victim of the controller's error.  That's because one of the Federal Tort Claims Act's most important limitations is the "Discretionary Function Exception."FAA Control Tower The Discretionary Function Exception states that a victim can’t sue the federal government for bad decisions that the government left to the federal employee's best judgment.  Regardless of how careless the employee was, the government is immune from suit. 

Does that mean that, if a controller makes an error in a situation not covered by the Controller's Handbook, the victim can't sue?  

No.  Courts have ruled that an air traffic control error never falls within the Discretionary Function Exception. It doesn't matter whether the air traffic situation was covered in the Handbook, or was one left to the controller's judgment.  If a controller's error caused the accident, the victim can sue the FAA for negligence, just as though the FAA were a private party.

However, certain other rules will apply to the victim's lawsuit: 

  • Before starting the suit, the victim must file a claim against the government on a Form 95: 
  • The lawsuit must be filed in Federal Court, not State Court;
  • The judge -- not a jury -- decides the case;
  • No punitive damages can be awarded; 
  • The victim's attorney can charge a contingency fee of no more than 25% of any judgment that the court renders; 
  • If the FAA settles out of court,  the attorney can charge a contingency fee of no more than 20%.

More on the NTSB and Air Ambulance Accidents

A reader of this post concerning air ambulance accidents asked, “Can the FAA really get away with ignoring the NTSB?"  The answer, to date, is "yes."  And there's nothing the NTSB can do about it.

The whole reason the NTSB exists is to learn from accidents and make safety recommendations so that similar accidents won’t happen again. But the NTSB has no power to make anyone, including the FAA, follow its recommendations.  And so, frequently, the FAA just ignores them.

Of course, ignoring NTSB recommendations can lead to loss of life. Some feel that the crash of Continental Flight 3407 in Buffalo might have been avoided, and 50 lives saved, had the FAA acted on the NTSB’s safety recommendations concerning turboprop planes and airframe ice. But the FAA never did, despite that some of those recommendations are now more than 10 years old. Even by goverment standards, ten years is a long time to sit on something. 

But back to air ambulances: The NTSB studied 55 air ambulance crashes occurring between 2002 and 2004 in which 54 people were killed.  As a result of what it learned, the NTSB recommended (pdf) that air ambulance companies be required to, among other things: 

  • equip their helicopters with terrain warning systems;
  • ensure that their pilots have good weather information before taking off; and
  • ensure that their pilots get adequate rest. 

All straightforward stuff that is hard to argue with. 

That was back in 2006.  Since then, another 9 air ambulances have crashed, killing 35.  Still, the FAA hasn't acted on the recommendations. Though there has been some response from the FAA, the NTSB calls the response "unacceptable." 

One might wonder: if the FAA is free to ignore the NTSB, and has a record of doing just that, then what’s the point of even having an NTSB?

Good question.