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Are we losing our sovereignty and freedom in all things commercial, business and general aviation?

by Jeremy Cox 30. November 2010 17:00
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Even though this past year in aviation legislation has been a quiet one, there has been a discernable undercurrent of change seeping into the foundation of the commercial, business and general aviation industry these past several years. The changes that have been slowly seeping in under most of our ‘news radars’, and when viewed as a composite, are so significant that we all now need to take immediate action before our worst fears become an industry reality.

The changes that I am referring to, and a lot of them are not caused by the Department of Homeland Security (DHS) or Transportation Security Administration (TSA), are as follows:

Establishment of an International Aircraft Registry in March 2006. This program is mandated by the FAA, whereby a seller cannot warrant ‘Free and Clear Title’ to his or her aircraft, unless it has registered with the I.R. The treaty resulted from a diplomatic conference held in Cape Town, South Africa in 2001. The conference was attended by 68 countries and 14 international organizations. In all, 53 countries signed the resolution proposing the treaty. It took effect when ratified by eight countries: Ethiopia, Ireland, Malaysia, Nigeria, Oman, Panama, Pakistan and the United States.

Failed attempt to introduce Aviation User Fees in June 2007. Proposed by Sen. Jay Rockefeller, along with the then-ranking minority committee member Sen. Trent Lott, and wrapped up in Senate Bill S.1300. The airlines were all for this, because they saw an opportunity to deflect public scrutiny away from their intensely bad ways of managing their respective companies, while firing media shots at business and general aviation. This caused so much division within both houses of Congress that the FAA was put on probation starting in September 2007. Ever since then, the FAA has been on a month-to-month, and sometimes quarter-to-quarter basis for funding.

Failed attempt to introduce the Large Aircraft Security Program (LASP) in October 2008. This regulation would require all U.S. operators of aircraft (both Part 135 and 91) that exceed 12,500 pounds maximum take-off weight to implement security programs that would be subject to compliance audits by TSA. The proposed regulation would also require operators to verify that passengers are not on the No Fly and/or Selectee portions of the federal government's consolidated terrorist watch list.

Failed attempt to introduce an FAA Certified Repair Station (CRS) Security Plan in November 2009. Repair stations on and off airports are so different that it wouldn’t be possible to create a security plan and audit system to fit all of the stations. However, this plan required that all CRS facilities to implement security procedures and infrastructure such as access controls to the facility or aircraft, and a means to identify those who should have access to the facility. Additionally, there would have to be procedures established for challenging unauthorized people who are trying to get access to the facility, along with a security awareness training program for all employees.

The Introduction of Plastic Airmen Certificates in April 2010. The paper to plastic conversion is in response to the Drug Enforcement Assistance Act of 1988, which directed the FAA to modify the system used to issue airmen certificates to help prevent abuses, including the use of counterfeit and stolen airman certificates, as well as the submission of unidentifiable names on aircraft registration applications.

Implementation of an Emissions Trading Scheme, with mandatory Annual Carbon Emissions Monitoring in September 2009. This European-mandated program is spearheaded by the ICAO and EASA and will lead to an Eventual Carbon Cap and Trade Program. At the close of its 37th assembly last Friday, the International Civil Aviation Organization (ICAO) agreed to what it characterized as the first global approach to reducing air transport's impact on climate change. Under the resolution, ICAO committed to achieving a 2 percent annual fuel-efficiency improvement until 2050, as well as a global framework for the development and deployment of sustainable alternative aviation fuels and a world standard covering carbon dioxide limits for aircraft engines. The resolution also calls for the creation of a global market-based measures scheme. But with the ink barely dry on the document signed by the UN body's 190 member states, opinion remains divided as to whether the development weakens or strengthens the European Union's emissions trading scheme. The EU has always said it will exempt non-European operators from its ETS if its own national governments have implemented a comparable system. However, the EU has made it clear that it will not defer ETS implementation while it waits to see if such alternatives ever materialize.

 

Re-Registration and Registration Renewal of U.S. Aircraft in October 2010. Now all aircraft registrations will expire in the next three years, possibly as early as March 31, 2011.  The FAA has issued a final rule that took effect on October 1, 2010, that requires all aircraft owners to renew their registrations by December 31, 2013 and then re-register every three years thereafter.  The purpose of the rule is to maintain an accurate aircraft registry database; a goal not achieved by the Triennial Aircraft Registration Report.  The FAA estimates that one-third of the 357,000 aircraft registrations currently on file are inaccurate.  The FAA uses the database for ownership determination and response to an overdue flight or downed aircraft report.  Law enforcement and other government agencies use the database for their own purposes.  The federal register’s summary of the rule mentions inclusion of registry information and status on a display depicting each flight operating on a flight plan in the national airspace system.

Implementation of the International Civil Aviation Organization (ICAO) International Standards of Business Aviation Organization (ISBAO) Safety Management System (SMS) Requirement mandated for enforcement, Nov. 18, 2010. While the FAA has filed a “difference” explaining that it does not have a formal safety management system (SMS) rule for aircraft operators, despite ICAO's Nov. 18 deadline, it is in the process of SMS rulemaking. The FAA is already sponsoring voluntary SMS implementation by Part 121, 135 and 145 organizations to provide learning and experience for both industry and the FAA in SMS development, implementation and oversight. The FAA is also considering SMS regulations for Part 135 operators and Part 145 repair stations. There are reports of Part 135 operators being denied entry into various international airports and/or airspace due to lack of an approved SMS manual and/or FOQA which stands for Flight Operations Quality Assurance; a flight-data analysis program has been an ICAO requirement since 2005. Starting on Nov. 19, 2010, Bermuda was the first nation to officially require that all foreign operators of business aircraft with an MGTOW of more than 12,500 pounds have an SMS and meet other requirements under ICAO Annex 6.2.3. For U.S. operators, this includes both Part 91 and 135 operators. Compliance with the ICAO annex is monitored by random ramp inspections at the L.F. Wade International Airport. Operators discovered to be not compliant will be refused entry to Bermuda until they can demonstrate compliance. Besides the precedent-setting SMS requirement, affected operators will also need an operations manual, fatigue management program, MMEL, Type 1A flight data recorder and crew microphone-based communication system. Additionally, aircraft with an MGTOW exceeding 59,400 pounds are required to have a Type 1 FDR and a cockpit voice recorder. On the other side of the Atlantic Ocean, French civil aviation authorities now require foreign operators to demonstrate they have an SMS and a FOQA program before they grant traffic rights. In fact, for the past two years, France’s aviation authority (DGAC) has mandated that foreign operators flying commercially or operating an aircraft weighing more than 27 metric tons (59,500 pounds) have a flight data analysis program (FDAP). The requirement is independent of any EASA regulation, with the DGAC maintaining it is enforcing ICAO standards. The EASA’s remit does not include foreign operator monitoring yet; the agency will manage technical authorizations (possibly including question forms) at the European level beginning in 2012. States will retain authority of commercial authorizations, such as traffic rights.

European Aviation Safety Agency (EASA) Proposition to eliminate Third-Country Aircrew and Aircraft Licensing validity, details released in October, 2010. If passed into law, the proposal would adversely affect U.S. flight schools that train foreign pilots, as well as pilots coming to the United States for training. Pilots who complete their flight training in the United States would be required to repeat the majority of their training upon their return to Europe. The FAA instrument rating would be considered useless in Europe. EASA has made no secret of the fact that it wants to get third country aircraft – and specifically the N-register – out of Europe by ensuring that there are no advantages to being on the N-register. The flight crew licensing proposal is only the first stage in EASA’s move against the N-register, with more to come in proposals on Operations in 2011.

 

Picture I.D. Requirements for Pilot Certificates. NPRM out for comment until Feb. 17, 2010. This proposal responds to section 4022 of the Intelligence Reform and Terrorism Prevention Act (IRTPA). The FAA previously required all pilots to obtain a plastic certificate (excepting temporary certificates and student pilot certificates). This proposal furthers the fulfilment of IRTPA by requiring a photo of the pilot to be on all pilot certificates. The new certificates shall remain valid for only 8 years, and then they must be replaced with a new one featuring a recent photograph. 

 

Part 25 Airworthiness Requirements Harmonization with EASA. NPRM out for comment until Feb. 17, 2010. The FAA tasked the Aviation Rulemaking Advisory Committee (ARAC) through its Flight Test Harmonization Working Group to review existing regulations and recommend changes that would eliminate differences between the U.S. and European performance and handling characteristics standards by harmonizing to the higher standards. This proposed rule is a result of this harmonization effort.

 

Significant escalation in the frequency of occurrences, and the penalty amounts levied in fines against U.S. Operators and Businesses by the FAA. In light of the problems that the FAA has had in receiving a consistent operating budget from Congress, President Obama’s administration is more actively looking and willing to bring about civil penalties against the aviation industry. All money collected by the federal government goes into the general fund.

 

The U.S. aviation industry has lead the rest of the world for more than a century, and effectively it is this system that has firmly established the U.S.A. as the ideal model which has caused more than 75 percent of the world’s civil aircraft fleet to be based here. Maintaining a healthy, safe and prosperous aviation industry takes government support and funding. The lion's share of the costs of running this national transportation system, are eaten up by the air-traffic and navigational infrastructure. The need for a near autonomous, free-flowing and independent on-board traffic guidance, avoidance and clearance system has been on the FAA’s books for more than a decade now. They call it NextGen, while it has also been named “Free-Flight.”

Unfortunately we, the users of this system, are not able to make our voices heard, because the past two governments have chosen to strangle the FAA and force it to step down as the leader of aviation safety oversight, all because of the lack of a proper and appropriate funding budget.

In fact, the FAA’s FY 2010 portfolio of goals document states that: “There is no budget associated with this performance target, as the global support that the ATO provides in support of NextGen is assumed by the specific program offices or paid for by international civil aviation authorities or air navigation service providers through the execution of reimbursable bilateral technical assistance agreements. However, political will, cultures, foreign policy, and other government budgets can be significant factors in the success of the NextGen performance target.”

I worry that the U.S. aviation industry is being forced to the back of the ‘special bus’, thus allowing organizations like the ICAO and EASA to run amok with biased, politically based legislation that is calculated to seize the balance of power in aviation oversight – and ultimately cause the global aviation industry to contract due to the financial burdens that these socialist based systems shall levy against us all. Couple this trend with the willingness that governments have in using the spectre of terrorism as a means to further cheapen and ultimately enslave free societies; we are all in for a very dark future indeed.

 

The International Civil Airworthiness Organization (ICAO) and its subsidiary, the International Business Aviation Council (IBAC), are both based in Montreal. The European Aviation Safety Agency (EASA) is based in Cologne. EASA has taken over from the Hoofddorp-based Joint Aviation Authorities (JAA.) The International Aircraft Registry (IAR) is based in Dublin, while the Aviation Rulemaking Advisory Committee (ARAC) is still based in Washington, D.C. This all leaves me to wonder when the Federal Aviation Administration shall be disbanded and all governance moved to Cologne. It is time to start writing to our representatives in Washington, I think. What say you on this matter of sovereignty?

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Jeremy Cox



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