Torqued: It Shouldn’t Take an Act of Congress To Mandate Safety Improvements

 - August 3, 2020, 9:00 AM

It really should not take an act of Congress to get aviation safety improvements mandated in aircraft.  Aircraft owners and operators should be willing to make voluntary safety improvements of proven technology, and certainly many do. But to ensure uniform requirements of important safety improvements that are not being adopted voluntarily by a large majority of operators, the FAA, through the rulemaking process, should be able to do that.

Normal rulemaking gives the public–including, of course, the affected parties like helicopter operators, pilots, and, yes, even passengers–the opportunity to comment on the proposed rules and the final rule is, ideally, better for those comments. But sometimes it seems the FAA drags its feet and years pass and aircraft continue to crash and yet those improvements never get made. At times, Congress says “enough” and proposes legislation to require those improvements. There is no notice to the public as required with the usual rulemaking efforts and no opportunity to comment as there is with rulemaking.  But it seems sometimes a federal law is the only way to get some safety improvements made mandatory.

The latest example of Congress stepping in to do the FAA’s safety job is legislation that was recently introduced in the House and Senate that would require several long-sought safety improvements for certain helicopters. The law hasn’t yet passed but it may be the only hope for these safety improvements to ever be required.

The draft law, called The Helicopter Safety Act of 2020, would impose two main requirements: all Part 91 and 135 transport category helicopters would have to be equipped with a flight data recorder (FDR) and a cockpit voice recorder (CVR) or “an onboard cockpit image recorder with the capability of recording cockpit audio, crew communications, and aircraft parametric data.” And all new and existing turbine-powered helicopters certificated for six or more seats would have to be equipped with a terrain awareness and warning system (TAWS). The proposed law would also eliminate any existing exemptions (and prohibit future exemptions) to these requirements. (It makes no sense to me to require safety equipment by regulation and then to give operators exemptions from those requirements.)

While many people regard the FDR as critical to accident investigations–and it is–its greatest potential use, I believe, is to prevent accidents. Data from the recorder can be analyzed to improve the safety of flight operations. By analyzing flight data, accident risk precursors can be identified and appropriate mitigation measures taken. 

As most of you know or suspect, the proposal in Congress is a reaction to the tragic and high-profile helicopter crash on January 26 that killed the basketball superstar Kobe Bryant, his daughter, and seven others, including the pilot. But other helicopter crashes spanning more than a decade have highlighted the need for these requirements.

The NTSB has been recommending TAWS since a helicopter crashed in the Gulf of Mexico about 70 miles southeast of Galveston, Texas in March 2004. The Sikorsky S-76A was carrying oil company workers to a drilling ship, Discover Spirit. The flight was a Part 135 VFR flight at night. All eight workers, the pilot, and copilot were killed in the accident. The NTSB investigation that followed determined the probable cause was the “flight crew’s failure to identify and arrest the helicopter’s descent for undetermined reasons, which resulted in controlled flight into terrain.” 

The NTSB issued its probable cause determination after finding no evidence of problems with the helicopter’s engines, systems, or structure and no evidence that that the crew was attempting an emergency water landing. Basically, a perfectly airworthy helicopter made a controlled descent into the water. There was no FDR on the aircraft and while there was a CVR, improper CVR installation resulted in no CVR data being available to help determine the cause of the crash. Based on instruments in the helicopter, the NTSB concluded that the flight crew was not properly monitoring the helicopter’s altitude and “missed numerous cues to indicate that the helicopter was inadvertently descending towards the water.” Because of night conditions, the crew would have lacked visual ground references and would have had to rely on instruments to gauge the helicopter’s distance from the water.  

The NTSB concluded that if TAWS had been installed on the helicopter it would have provided sufficient warning to the flight crew of its impending impact with water and allowed for corrective action to avoid impact. Based on that conclusion, it recommended to the FAA that all turbine-powered helicopters certificated for six or more passengers be equipped with TAWS. The Board had previously recommended that all EMS helicopters install TAWS. In response to the NTSB’s recommendations, the FAA, in 2014, published a final rule requiring TAWS in helicopter air ambulances.

Fast forward to 2020 and the helicopter flight that killed Kobe Bryant. While there is no final NTSB accident report, the preliminary investigation indicates that the Sikorsky S-76B helicopter collided with hilly terrain near Calabasas, California. The aircraft was supposed to be operated VFR under Part 135 but witnesses at the scene indicated clouds and fog were present. Whether the installation of TAWS would have prevented the accident is not known at this time and perhaps may never be known. But the forward view that TAWS provides pilots would certainly be helpful if a pilot is caught in rising terrain in clouds or fog. The lack of FDR and CVR data from the helicopter will certainly hamper the Board’s ability to properly investigate the accident and make needed safety recommendations.

Since the January 2020 crash, the NTSB has made clear that it has pretty much given up on the FAA and is appealing directly to manufacturers. In a May 2020 Safety Recommendation Report, the NTSB recommends that helicopter manufacturers install flight data, audio, and image recorder systems on all turbine-powered helicopters.  

The safety recommendation states that the Board has been trying unsuccessfully to get the FAA to require crash-resistant recorder systems since 1999. While it’s possible some manufacturers may take the NTSB’s recommendation to heart and install this equipment in new helicopters, that still won’t address the need to get this equipment into the existing fleet. It seems that will only happen if Congress acts. In this case, I hope Congress is successful in doing an end-run around the FAA’s recalcitrance and getting this much-needed safety equipment required.