Part 23 Comments
The FAA issued, after long (many including Congress felt too long) deliberation, its Part 23 Reorganization NPRM, which really represented the work product of an ARC. With the proposed rule published, the FAA opened a docket in which the public was invited to submit comments. After an unusual public hearing on the subject, only 61 documents were filed.
Most of the submissions were technical in tone and affirmative in posture toward the new Part 23. Three of the responses are particularly noteworthy, two for the mere fact that they felt that their positions would be considered relevant and one because its views would be.
First, the National Transportation Safety Board submitted a letter signed by Chairman Hart (an aeronautical engineer, lawyer and pilot). The Board is involved in accident investigations, although less so in GA crashes; so its opinions about the new certification process/standards merit careful consideration. Here are some of the NTSB’s comments:
- “exactly how the revisions will reduce loss of control accidents.”
- “Although the consensus standards process provides a collaborative framework for standards development, we are concerned that design standards important for safety considerations may be overlooked.”
- Referring to a 2009 investigation that found “the ‘prescriptive design standards’ in the existing Part 23 would likely have not allowed the certification of this aircraft design [a Zodiac LSA], but the applicable ASTM consensus standards did not provide adequate protection from catastrophic aerodynamic flutter.”
- The NTSB letter also cited concerns icing certification and airplane crashworthiness under the proposed new system.
- “In general, we concur with some aspects of this NPRM and feel that other aspects need further consideration, clarification, and refinement…We urge the FAA to maintain the necessary level of safety as it continues to develop new pathways to airplane certificatio”
The last quote reflects some of the rumored opposition allegedly heard from the FAA staffers who are comfortable with the old “tried and true” techniques.
The union, NATCA, which represents the air traffic controllers, submitted its thoughts:
“The current certification model for Title 14 Code of Federal Regulations (14 CFR) part 23, Airworthiness Standards: Nonnal, Utility, Acrobatic, and Commuter Category Airplanes, is working quite well in producing safe airplanes and is effectively being used to approve tens of thousands of new airplane products and modification approvals each year. This includes new and novel technologies, as well as advanced high performance aircraft. The new certification model proposed in the NPRM has several positive attributes and could improve and streamline the current certification model. However, it does cause us concerns in key areas and we are providing the attached comments on the NPRM.”
What follows is ten pages of detailed comments, such as these found in sections of the attachment:
“In a similar vein, economy-focused inventors may attempt to finesse the consensus standards body by developing a consensus standards proposal that owes more to how little has been learned in developmental testing than by how robust or intrinsically consistent are the results produced when using the technology within the proposed operating environment of the advocate. If a level playing field is to be provided for the regulated industry and the public, FAA needs to be able to articulate some form of an expected minimum technology maturity level measure to offset the enthusiasm of idea advocates whose enthusiasm is exceeded only by their technical superficiality.”
“It is not uncommon for applicants to use legal “changes to type design” approval processes to obtain less expensive or extensive certification requirements for a design proposal. “Number of seats” has been used previously to finesse operating requirements applicability. Will this now be permitted within the confines of the new Part 23 standards as established by the proposed airplane certification levels? Will there be any check or limitation or safety judgment made on this potential use of the New Part 23?”
There are a number of detailed technical comments, but all of the “recommendations” seem to argue for more prescription.
The third interesting submission comes from the Association for American Justice, or as it was known the Association of Trial Lawyers of America. AAJ’s mission and history suggest its real perspective on this aircraft certification:
The Mission of the American Association for Justice is to promote a fair and effective justice system—and to support the work of attorneys in their efforts to ensure that any person who is injured by the misconduct or negligence of others can obtain justice in America’s courtrooms, even when taking on the most powerful interests.
On August 16, 1946, a group of nine plaintiffs’ attorneys involved in workers’ compensation litigation met in a hotel room at the Heathman Hotel in Portland, Oregon. Their goal was to put together a plan for a national organization to combat new threats facing trial lawyers across the country.”
The trial lawyers submitted a four page letter to the docket and its primary interest was summarized in an early paragraph:
“AAJ recognizes the challenges of maintaining standards that are flexible to keep pace with rapidly changing technology and fostering innovation. However, changes to the airworthiness standards should not compromise the safety of our shared airspace. For that reason, the FAA’s updated performance standards should not preempt state tort law.”
The substance of its concern derives from a case which AAJ won, Sikkelee v. Precision Airmotive Corp. There, the FAA argued as an amicus “that state law aviation product defect cases were categorically preempted under the doctrine of field preemption because FAA regulations and certification processes created a federal standard of care.” The lawyers answered their own concern by saying that the new Part 23 is “even less restrictive and afford manufacturers much greater design and certification latitude than do the current design and certification standards at issue in Sikkelee.”
The new proposal for certification of these aircraft does not include a statement that these new standards are meant to preempt state law as to aircraft liability, but these federal criteria would preclude any state from attempting to regulate the airworthiness of planes within its jurisdiction.
These three comments and the other 58 submissions should not delay the final promulgation of the revised Part 23.