European Aviation Initiatives & the FAA
There are three recent stories about aviation initiatives in Europe in which the proposing government entity is taking a different path than the FAA. Transnational air law is not an area of vibrant research as with other legal academic studies; probably since the beginning of flight the US has defined the way for regulating. While these three examples may not prove to be better alternatives, it seems as though they afford an opportunity for the FAA to see how different rules correlate with higher safety, better compliance or better options.
From a public policy standpoint, the US benefits from the fact that we have 50 states where governments may test new ideas. For aviation engineering, there are aeronautical laboratories where engineers may experiment with innovative designs. Engineering modeling, using complex algorithms, permits further explorations before a new wing or engine or metal is used on an airplane.
Since there is a single safety flight regime in the United States, the FAA does not have the opportunity to see how a new aviation policy may play in the real world. The American states are federally preempted from serving as real world tests of how a new rule may impact aviation safety, interaction with the ATC, the enforceability of a rule, the ability of the public to comply.
The first transnational education moment involves drones. The FAA issued a new Part 107 and its one size-fits-all set of rules drew some very negative comments. While these restrictions in many ways reflected the FAA’s limitations and historic precedents, many of the opponents urged that the FAA take a risk-based approach which matches the operational environment with the right set of safety precautions. EASA’s most recent opinion, not yet a final rule, takes that approach with gradations of the drone missions and the applicable rule. The FAA office in Europe should closely monitor whether this more malleable regulatory regime works.
The FAA’s response to the Flight Share or Uber concept has been as contentious, though on a smaller scale and with lower volume. The policy formulation began with a well-drafted request, but the FAA remained wed to its precedentially broad definition of what “compensation of hire means.” Another similarly designed business plan took the FAA’s legal position to a US Court of Appeals and lost. A think tank convinced a US Congressman to offer legislation which would reverse the no Uber position.
This second possible aviation policy laboratory involves the intersection of safety with the economic regulatory boundaries. While the legislation moves forward, or not, the FAA should try to learn as much as possible about European online ride-sharing platform Skyüber, which has the blessing of EASA. Skyüber depends on the same cost-sharing (cost of the flight: landing fees, fuel, insurance) rational as the US entrepreneurs. The operating record of this innovative offering will demonstrate the level of safety attainable by these consumer flights and its economics score card should define its separation (or non-separation) from commerce.
The third (and last for this post, but there may be more transnational learning opportunities which will be continuously followed in the future) involves the FAA’s battle with the EAA’s AirVenture® in Oshkosh, WI. After many years during which Controllers literally competed for the opportunity to work the traffic at Wittman Regional Fields, it was determined that the cost of the federal participation in this global celebration of aviation would have to be paid by the EAA. Congress’ budgetary sequestration was the excuse, but even an objective view would have found that the goodwill generated by these controllers more than paid for the costs.
The UK CAA, which regulates the ATC there, was faced with the same issue and it decided to phase in the introduction of the new air shows charges. The 2016/17 charges will now be set to recover £100,000 (approx. $145,000) of the expected £200,000 (approx. $290,000) of additional costs, with the remaining £100,000 being absorbed by the CAA. Andrew Haines its CEO, said,
“We understand that people care passionately about air shows and we want all events to be a success. We are also very clear that we will not compromise on safety. Enhancing the safety of air shows is essential and this extra work must be funded.”
“However, we have listened to the responses and recognize that some shows could face challenges in absorbing the full cost of these changes into this display season. In making our final decision on fees we have therefore decided to phase in the new charges, recovering only half of our costs for the current year.”
“We welcome the opportunity to address with air show organizers any questions or concerns they have around their planned activity for 2016, but safety must be the priority and we are committed to doing all that we can to make air shows even safer in the years to come.”
“In addition to the phased introduction of new fees, we will also review any further requests for assistance from smaller and charitable air show organizers who are concerned about not being able to afford the new charges.”
Now that a Congressman has introduced legislation that would obviate the authority of the FAA to pass the charges of the AirVenture® to the EAA, Mr.Huerta and his staff might considered the more metered approach of his British counterpart. S.2658 would place all of the cost on the government; the UK’s fee statement would be more balanced.
Yes, the oft repeated aphorism that the “FAA is the global aviation gold standard” is still accurate, but it would be wise for the FAA to take a more perspicacious approach and try to learn from other CAAs. They serve as useful aviation policy laboratories.