The OMB Regulatory Approval Process does not quantify tragedy

Bryant Crash siteimage from a wildfire camera taken shortly before the helicopter crash that killed Kobe Bryant last month shows a cloud layer near the accident site. Credit...via National Transportation Safety Board
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Kobe and Gianna Bryant Crash inspires a Bill

Senator Feinstein and Congressman Sherman  

Mandate to FAA require CVR, FDR and TAWS on turbine helicopters

 

Senator Dianne Feinstein  and Congressman Brad Sherman reintroduced the Kobe Bryant and Gianna Bryant Helicopter Safety Act. If enacted, it would mandate that the FAA  require operators of all U.S.-registered turbine-powered rotorcraft  certificated for 6 or more passenger seats to be equipped  with a Flight Data Recorder (FDR) , a Cockpit Voice Recorder (CVR),  and a Terrain Awareness and Warning System (TAWS).

The staff, who drafted the bill, actually understood the Administrative Procedure Act, set the compliance date from the issuance of the regulations. The all-too-often time limitation is promulgation of the final rule at 1 year from enactment. The Bill recognizes that such a proposal must go through the normal NPRM procedure.

There is little doubt that the NPRM process is complex, slow, filled with rabbit holes and not always conducive to reaching the “so-called” right result. Reviews within the Administration, primarily DOT and OMB’s OIRA, slow the progress of the rule from draft to the Federal Register.

The FAA’s safety mission is not always absolute as one expects. Every rule is required[1] by OMB rules “to provide to the public and to OMB a careful and transparent analysis of the anticipated consequences of economically significant regulatory actions. This analysis includes an assessment and (to the extent feasible) a quantification and monetization of benefits and costs anticipated to result from the proposed action and from alternative regulatory action.”

The Regulatory Impact Analysis does consume considerable time and has been known to contort the specific standards to meet the stringent benefit/cost analysis. The NTSB has repeatedly recommended to the FAA that the CFR, FDR and TAWS equipment be required on these aircraft (including placing these recommendations on 2015 Most Wanted List[2]) In spite of that level of concern, the FAA has NOT. Here is the agency’s recent history in moving towards such requirements:

Fact Sheet – FAA’s Response to NTSB’s “Most Wanted” Safety Recommendations

             March 16, 2020

Recommendation A-13-12: Require the installation of a crash-resistant flight recorder system on all newly manufactured turbine-powered, non-experimental, non-restricted-category aircraft that are not equipped with a flight data recorder and a cockpit voice recorder and are operating under 14 CFR Parts 91, 121, or 135. The crash-resistant flight recorder system should record cockpit audio and images with a view of the cockpit environment to include as much of the outside view as possible, and parametric data per aircraft and system installation, all as specified in Technical Standard Order C197, “Information Collection and Monitoring Systems.”

Recommendation A-13-13: Require all existing turbine-powered, non-experimental, non-restricted-category aircraft that are not equipped with a flight data recorder or cockpit voice recorder and are operating under 14 CFR Parts 91, 121, or 135 to be retrofitted with a crash-resistant flight recorder system. The crash-resistant flight recorder system should record cockpit audio and images with a view of the cockpit environment to include as much of the outside view as possible, and parametric data per aircraft and system installation, all as specified in Technical Standard Order C197, “Information Collection and Monitoring Systems.” 

FAA Action: The FAA is not considering rulemaking at this time for these recommendations. The FAA will examine possible ways of polling operators through our aviation safety inspectors to identify voluntary flight data monitoring (FDM) system equipage rates. 

FAA Action: The FAA will conduct a review to determine the feasibility of requiring all Part 135 certificate holders to install FDM systems on their aircraft.  

Recommendation A-16-35: After the action in Safety Recommendation A-16-34 is completed, require all 14 CFR Part 135 operators to establish a structured flight data monitoring program that reviews all available data sources to identify deviations from established norms and procedures and other potential safety issues. 

FAA Action: The FAA will conduct a review of the level of participation of Part 135 certificate holders in voluntary programs and evaluate additional actions that can increase awareness and participation.  

Recommendation A-17-35: Implement ways to provide effective terrain awareness and warning system (TAWS) protections while mitigating nuisance alerts for single-engine airplanes operated under 14 CFR Part 135 that frequently operate at altitudes below their respective Terrain Awareness and Warning Systems (TAWS) class design alerting threshold. 

FAA Action: The FAA actively participates in the General Aviation Joint Steering Committee (GAJSC) Controlled Flight Into Terrain (CFIT) workgroup, which will likely provide a final report by December 2020 concerning CFIT accidents.

In addition, the FAA is actively participating in quarterly meetings of RTCA’s Special Committee (SC) 231 on TAWS. SC-231 is attempting to produce solutions to enhance TAWS protections and determine if further standards are necessary for RTCA/DO-367, Minimum Operational Performance Standards (MOPS) for TAWS Airborne Equipment. The FAA will review the SC-231 recommendations and determine the next appropriate actions. 

The timeline on similar issues with HEMS is a useful parallel:

Fact Sheet – FAA Initiatives to Improve Helicopter Air Ambulance Safety

February 20, 2014

    • Terrain Awareness and Warning Systems (TAWS): On June 27, 2006, at the FAA’s request, RTCA, Inc. established a Special Committee to develop Helicopter Terrain Awareness and Warning System (H-TAWS) standards. These standards will be used to develop FAA requirements for H-TAWS systems, installation and operations.

One can infer from all of this FAA inaction that the impediment is not the safety merits of the additions of CVR, FDR and TAWS instruments on board these helicopters. Rather, their economists have run the numbers and they realize that the OMB OIRA hurdle is insurmountable.

Sen. Feinstein and Rep. Sherman’s language is eloquent and heart felt, but that is not what will convince OMB.

whereas clauses of bill

helicopter flight instrument panel


 Congressman Sherman and Senator Feinstein Introduce the Kobe and Gianna Bryant Helicopter Safety Act

  Jan 25, 2021 

Press Release

Rep. Sherman and Sen. Feinstein

 

Washington, D.C. – Congressman Brad Sherman (D-Sherman Oaks) and California Senator Dianne Feinstein announced today the reintroduction of the Kobe Bryant and Gianna Bryant Helicopter Safety Act, which will require the Federal Aviation Administration (FAA) to strengthen federal safety standards for equipping helicopters.

Congressman Sherman moved to first introduce this legislation in the wake of the tragic helicopter crash that claimed the life of Kobe Bryant, his daughter Gianna Bryant and seven others one year ago in Calabasas, California.

Crash Site

The legislation is supported by members of the Bryant family, and Vanessa Bryant issued a statement of support last year:

“I strongly urge that the United States Congress pass a federal law that would improve the safety of helicopters operating in this country,” said Vanessa Bryant. “I believe there is a chance that Kobe and Gianna would still be alive today if their helicopter had been equipped with the safety equipment required by this pending federal legislation. Having Kobe’s and Gianna’s names associated with this federal law that has the potential to save countless lives would be a fitting tribute to their memory.”

In crafting this legislation, Congressman Sherman worked with the National Transportation Safety Board (NTSB), which is charged with investigating tragedies like the one that occurred in Calabasas.  The National Transportation Safety Board formally recommended in 2004 that passenger helicopters be equipped with a Terrain Awareness and Warning System (TAWS) and two years later they also recommended that helicopters be equipped with a flight data recorder (FDR) and cockpit voice recorder (CVR).  Unfortunately, the FAA refused to act on these safety recommendations.

“In 2004, the National Transportation Safety Board (NTSB) recommended to the FAA that all helicopters be equipped with a Terrain Awareness and Warning System. Unfortunately, the FAA refused to follow this recommendation to require the safety system” said Congressman Sherman. “The Kobe Bryant and Gianna Bryant Helicopter Safety Act will finally direct the FAA to require these safety features for passenger helicopters in order to avoid tragedies like the one that claimed the life of Kobe Bryant, his daughter Gianna Bryant and seven others.”

“Mandatory terrain awareness equipment on all helicopters has been recommended by the NTSB for 15 years, but the FAA has failed to require it on any helicopter save air ambulances,” Senator Feinstein said. “It’s clear the simple addition of this equipment will help keep passengers safe and prevent crashes due to poor visibility. Last January we saw just how deadly flying in low visibility without this equipment can be when a helicopter carrying nine individuals, including basketball legend Kobe Bryant and his daughter, crashed. The accident may very well have been avoided if terrain awareness equipment were mandatory as this bill will ensure it is.”

The Kobe and Gianna Bryant Helicopter Safety Act will finally direct the FAA to require that these safety features be required for passenger helicopters, as recommended by the National Transportation Safety Board.

The passengers on this flight

 

[1] Unfortunately, the reams of paper on the applicability of Executive Order 13563,2 Executive Order 12866,3 and Circular A-4 do not mention whether an NPRM which is mandated by Congress like the  Kobe and Gianna Bryant Helicopter Safety Act MUST meet these tests.

[2][2][2] The 2019 MWL makes a broader recommendation as to this equipment.



 

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