While the Covid-19 pandemic has introduced numerous complexities for normal business operations, the U.S. government has remained busy on the rulemaking front with a number of proposals and final actions coming out either as the outbreak began to spread globally or during the crisis itself. And work on those rules has continued since.

Expansion of the Pilot Records Database

For business aviation, one of the most notable actions was the March 30 release of a notice of proposed rulemaking (NPRM) to impose new electronic pilot records database (PRD) requirements, expanding the record-keeping and public-reporting mandate to corporate operators for the first time. That rule further would define a corporate operator for the first time (as one that typically flies with two or more aircraft and requires type-rated pilots) and would call for the submission of details such as comments from check pilots during pilot training in the PRD.

Much to the chagrin of NBAA and other business and general aviation interests, the FAA provided only a standard 90-day public review and comment period. The groups had sought additional time to gather the necessary data to present a full picture of the ramifications of the rule. They noted that with the difficulties of operating during the Covid environment, such a process was more time consuming than normal. However, the FAA was not convinced.

Even so, NBAA, which had called the proposal “regulatory overreach” and “overly burdensome,” put out a rallying cry to its membership and, as a result, the NPRM drew 800 comments on the docket, many of them NBAA members in opposition.

Further, NBAA president and CEO Ed Bolen and Aircraft Owners and Pilots Association president Mark Baker appealed to FAA Administrator Steve Dickson in a joint letter expressing their concerns about the NPRM. Separately, Bolen broached the topic directly to Dickson during a virtual NBAA Town Hall. Dickson had already appeared versed on the issue, saying, “This may be an overbroad solution” and “I’m hopeful that as [we] work through all the comments that we'll end up with something that everyone could embrace.”

Doug Carr, v-p of regulatory and international affairs for NBAA, said he was encouraged by the Administrator’s comments, saying Dickson “definitely understands some of our concerns…. He gets the value of the data and who is who it should apply to. But, I'm hopeful that he's also able to appreciate the expansion that's proposed under the rule in terms of affected operators and the cost.” He added that, in the end, the NPRM is about having access to pilot information to make hiring decisions, and there are other tools that can accomplish that without having to expand the PRD requirements to corporate operators, which would impose a burden with a “de minimis increase in safety value.”

While the comment period closed on June 29, Carr said work continues to gather information and data on the true costs and full ramifications of such an expansion of PRD requirements. Plans are to present this information to government decision-makers once it is fully accumulated. Carr noted that when the FAA drafts its final rule, it will have to go through another series of reviews at the Department of Transportation (DOT) and the Office of Management and Budget.

Because OMB looks at the rule from an economic basis, “we think there's potentially going to be some cost-benefit data that will be helpful for that discussion. That will be one of the agencies that would be of interest for such cost data,” Carr said, expressing the belief that while NBAA is not opposed to the rule itself, “the applicability to us is based, in our view, on some flawed assumptions.”

Supersonic Rules Waiting in the Wings

While this has been ongoing, the FAA has other major rulemakings in the works, including those establishing for the first time broad-based takeoff and landing certification standards for supersonic aircraft. The lack of such standards is a primary obstacle to the certification of new supersonic aircraft. Announced at the end of March and published in the April 13 Federal Register, the NPRM comes as the international community, through the International Civil Aviation Organization (ICAO), prepares to lay a foundation for global supersonic noise standards later in the decade. The NPRM also comes as the field of new supersonic designs becomes increasingly crowded with recently announced aspirations such as Virgin Galactic’s Mach 3 jet and the government’s supersonic Air Force One executive transport.

The comment period on the supersonic landing and takeoff proposal closed July 13 and nearly 300 comments weighed in on the proposal.

The industry largely welcomed the effort. “It's necessary for the FAA to identify what the expected requirements are going to be in order to enable the size and the volume of investment and commitment to research and development,” said Walter Desrosier, v-p of engineering and maintenance for the General Aviation Manufacturers Association (GAMA). “You have to have an understanding of what the applicable standards are going to be, what the applicable framework is going to be. I think what the FAA has done is they've addressed the thing that's most immediate in terms of domestic operations. They're addressing the standard and promulgating a standard for the landing and takeoff.”

Meanwhile, other issues will need to be addressed in the future, such as noise and the approach to sonic boom. With that research still ongoing, “there’s not enough known there.” This is a broader discussion for the international arena, he added. But for now, “What the FAA is doing is appropriate in terms of enabling and facilitating the ability for the industry to continue to invest in the development and the technology, but for the development of these products more is going to be needed.”

Carr, agreed, calling the NPRM an important step towards “what we hope is going to be the reintroduction of supersonic flight. We’re hopeful that a supersonic business aircraft becomes one of the first new supersonic transports.” But to accomplish that, the global community has to start laying the groundwork now.

He added this is one of a number of efforts, including demonstrations that will take place to measure sound exposures of new technologies. “We need to have people see it. We need to have people hear it,” he said, and added, “We're going to be following this very closely as the technology evolves and the testing continues” so the community can help provide insight to all the decision-makers involved in supersonic. 

Predictably environmentalist groups are opposing such standards. In fact, 60 such organizations coalesced in their comments to the FAA in expressing opposition. Supersonic airplanes “failed nearly two decades ago because of the aircraft’s sky-high fuel consumption and inability to meet environmental regulations,” the organizations said, telling the FAA that given “our limited carbon budget, limited time to act, and urgent need to slash greenhouse pollution from the aviation sector overall, allowing super-polluting aircraft to enter the U.S. sky would be madness.”

A senior FAA regulator acknowledged that in the supersonic realm, there will be organizations that simply have the policy to oppose development and that it is difficult to work through issues with those who are not open to dialog.

Kevin Welsch, executive director of the FAA’s Office of Environment and Energy, said during an American Institute of Aeronautics and Astronautics Aviation Forum, that the FAA is looking at how to mitigate effects and hopes to communicate that what is proposed from a noise standpoint is consistent with the majority of aircraft currently in production. “Our focus…has been how we can support the reemergence of supersonic aircraft from a regulatory perspective to ensure that, as technology advances, the FAA is putting in place the necessary regulatory changes,” he said.

Industry groups say much opposition is predicated on the experiences with the Concorde and none of the would-be supersonic contenders intend on building such an aircraft.

Remote IDs for Drones

Meanwhile, also in the emerging technology field, the FAA has been working on remote identification requirements (ID) for unmanned aerial systems (UAS) to help further facilitate their integration into the national airspace system.

Carr noted the FAA had indicated its intention to push the final rule out this year, and three UAS industry groups appealed to the DOT to ensure there is no delay. Those groups, the Association for Unmanned Vehicle Systems International, the Consumer Technology Association, and the U.S. Chamber of Commerce’s Technology Engagement Center, wrote DOT saying the remote ID standards will be “the linchpin needed for future rulemaking to pave the way for transformative uses of UAS with significant benefits for our economy and society.”

NBAA welcomed the remote ID proposal when it was released late last year. “NBAA has long maintained that UAS offer great promise for a variety of applications, including for companies relying on aviation in the conduct of their business,” Carr said at the time. “This notice from the FAA is a foundational document for moving forward with integrating not just UAS, but other emerging technologies, in a way that addresses our industry’s collective safety, security, and other objectives.”

However, Carr said the proposal was not without its concerns, specifically surrounding the privacy of data gathered from the drone operations.

Long Overdue Air Tour Plans

In another area, the FAA, by court order, is reigniting its joint effort with the National Park Service to develop air tour management plans (ATMPs) over 23 national parks. This is an issue that literally spans decades when Native American communities, environmentalists, the Departments of Interior and Transportation, and air tour operators were all grappling with how to balance environmental concerns associated with national parks and the benefits of air tour operations.

In 2000, Congress directed the agencies to develop the ATMPs, but in 2012 amended that mandate to enable the agencies to enter voluntary agreements with air tour operators in lieu of the more formal plans.

No formal plans were ever put in place, but voluntary agreements had been reached for four parks. Losing patience with the seeming inertia on the issue, the Public Employees for Environmental Responsibility and the Hawaii Coalition Malama Ponsin took the issue to court to get seven more plans or agreements in place. As a result, the U.S. Court of Appeals for the District of Columbia Circuit in May gave the FAA and the NPS 120 days to file a plan to bring all 23 parks into compliance within two years or have concrete reasons why it would take longer. The agencies submitted that plan in late August.

Roadblocks at DOT

While the FAA has moved forward on these varied initiatives, industry officials have become concerned that it is getting bogged down in some of its smaller regulatory activities. The holdup isn’t Covid, however. It comes from a DOT regulation implemented about a year ago that changed how different agencies, including the FAA, promulgate rules. This has led to extended reviews for regulatory actions that previously did not need such scrutiny, Desrosier said. These include interpretive rules, implementing guidance, and implementing policy, such as advisory circulars, guidance, orders, and acceptance of standards.

In aviation, Desrosier explained, many of these actions facilitate new technologies, vehicles, and types of future operations. “One of the areas that we're focused on is engaging with the administration in the rulemaking and regulatory process because we are seeing a significant roadblock, a significant backlog, and barrier to things getting promulgated and just through the system,” Desrosier said. “There's a very broad range of things that are part of the rulemaking process.” But not every one of them is a formal rule.

“They're all about the interpretation and the implementation of rules,” he said, calling them “enablers” for technology and safety features. “A lot of these are necessary to allow these new things to come to market, to allow the new technology, the new products, the new jobs that come with it to be able to come to fruition.”

As an example, Desrosier expressed concern about a “huge backlog” of acceptance of RTCA performance standards that are used in the development of TSOs for new avionics equipment. “For decades and decades, since the beginning of communication, navigation, and surveillance, RTCA was the body that the FAA and the industry used to help establish the kinds of standards necessary to support and facilitate these areas of [fast] changing and evolving high technology in communication, navigation, surveillance,” Desrosier said. “Over the decades, it has been involved in almost everything that we do in avionics.”

There are many new standards created to address the rapid development of avionics functions and capabilities, but they haven't been recognized by the FAA, he said, estimating that so far this year, the FAA has only signed off on only a couple of the nearly 30 standards in the backlog

In another example, the FAA in late September finally released the second set of the ASTM consensus-based standards for Part 23 aircraft. In the newly released notice of availability (NOA), the agency outlined 35 new and revised consensus standards that are viewed as acceptable means of compliance.

This was only the second NOA that the agency has released and was years in the making. The first was released over two years ago, in May 2018.

“We applaud the FAA’s work to accept the latest set of important means of compliance standards,” said GAMA president and CEO Pete Bunce in announcing the release. “Going forward, the FAA needs to continue working to improve and standardize the acceptance process because it will support a regulatory environment that advances innovation and development of safety-enhancing technologies. This effort is about being future-ready for the opportunities that await this vital and vibrant industry.”

IRS Weighs in on Aircraft Management Fees

Outside of the FAA, other agencies have been active, moving regulatory initiatives of interest to the industry. On July 31, the Internal Revenue Service put out a long-awaited NPRM that states what its policy is toward taxation of aircraft management fees and attempts to clear up questions surrounding that.

The IRS’s approach was dictated by Congress through the Tax Cut and Jobs Act passed in 2017, which spelled out that fees associated with the management of an aircraft owner for the owner’s use should not be deemed as taxable as commercial air transportation. However, how that was implemented raised questions and industry groups feared that this issue was a relatively low priority for an agency wading through numerous mandates that came with the Jobs Act.

NBAA and the National Air Transportation Association (NATA) jointly submitted comments on the NPRM welcoming the proposal, especially as it was released during the pandemic. “Our industry secured a significant victory for aircraft owners and management companies through tax reform, and we look forward to working with the IRS on a final rule that provides clear guidance and follows congressional intent,” said NBAA's Bolen.

“We are encouraged by the IRS response to our request for clarification of the tax exemption for aircraft management services. This rulemaking represents another milestone in our successful campaign to ensure appropriate application and understanding of the tax laws,” added NATA president and CEO Timothy Obitts. “Aircraft owners and their service providers need specific guidance to comply and administer these provisions.”

The associations, however, pushed for modifications in a number of areas of the proposal, such as surrounding the definitions of aircraft leases, to ensure the proposal meets the intent of the Jobs Act.

EPA Address Historic New Aircraft CO2 Standards

The Environmental Protection Agency (EPA) this past summer took a historic step with the release of an NPRM to regulate carbon emissions from aircraft for the first time. In 2016, The EPA found that greenhouse gas emissions in certain aircraft contributed to air pollution that causes climate change endangering public health and welfare. This endangerment finding compelled the agency to take action on emissions and on August 20, the EPA published the long-awaited proposal in the Federal Register.

The proposal would require new type designs to meet the prescribed standards for aircraft weighing more than 132,270 pounds on Jan. 1, 2020, and on Jan. 1, 2023 for turbojet aircraft weighing more than 12,500 pounds. In-production standards would apply beginning Jan. 1, 2028.

While such rulemakings typically raise concerns about costs, deadlines, or other mandates, in this case, the industry has largely embraced the step with an appreciation that it helps the U.S. to maintain a leadership position on the issue. Comments were due on October 19 and they may point to specific areas of concern.

But in general, the rulemaking comes as there is broad recognition from industry leaders that the status quo is not acceptable on the environmental front and more will always need to be done in terms of efficiency and sustainability.

“The EPA, I would say, doesn't necessarily have a strong track record of supporting aviation concerns,” NBAA's Carr conceded, “but I think as part of a broader approach to ensuring the U.S. remains competitive in aerospace, this is being viewed as a needed component of a broader strategy.”

This proposal is the result of years of work that has been ongoing globally to establish targets that have buy-in both from regulators and manufacturers. Having these standards, he said, is critical because “the U.S. leadership in aviation has become more sensitive to the issues of the environment. And this is definitely a good way to reinforce that commitment.”

“I think collectively as an industry, we've always recognized the critical importance of the U.S. trying to lead anything related to aviation and aerospace standards. So, at ICAO, we push a global standard and advocating for global adoption,” Desrosier added. “I think what's critically important though in part of that global leadership is to be one of the ones that can readily adopt and implement the very standards that we pushed.”

Desrosier worried that if the U.S. doesn’t take such a step, “it will be set by others and they might be set in such a way or implemented in such a way that's not consistent with how we would like to see it being implemented.”

For the EPA emissions standards, he said, “I do believe it's had a lot of support for the U.S. to move forward and not wait for others to lead the way.”