On March 11, 2018, the pilot of a Liberty Helicopters’ AS350-B2 ditched the helicopter in the East River in New York City. The pilot was able to escape, but his five passengers drowned.
Small companies that make money operating aircraft and helicopters face the prospect of airline-style regulation as the FAA’s long-anticipated Safety Management System (SMS) rule for Part 135 and 91 operators advances through the federal rulemaking process.
In January the FAA published a notice of proposed rulemaking (NPRM) to update and expand its Part 5 requirement for SMS implementation beyond airlines to include Part 135 charter operators, Part 91.147 air tour operators and certain Part 21 type certificate and production certificate holders. At the request of business aviation associations, the agency postponed an earlier comment deadline it had scheduled to April 11.
If adopted as proposed, the rule would affect about 2,600 charter and air tour operators of all sizes, requiring them to establish formal SMS programs to identify, assess and manage safety risks. Tasks would include developing a code of ethics specifying safety as the highest priority, a confidential employee reporting system, associated documentation and a means to store records. Companies ranging from fleet operators to single-pilot, single-aircraft enterprises would have one to two years after a final rule is published to introduce their programs.
The FAA addresses the issue of scaling the regulation to small operators in the draft rulemaking, seeking feedback on whether the mandate should be limited to a certain subset of operators. It acknowledges that some Part 91.147 operators conduct relatively few flights—the agency had considered exempting those with fewer than 100 flights per year—and that some Part 135 operators use only one pilot-in-command.
A review of NTSB reports from 2015-20 shows that Part 135 companies employing a single pilot were involved in five accidents resulting in a fatality or serious injury, the FAA says. There was one accident involving fatalities of a Part 91.147 operator with fewer than 100 flights per year. On March 11, 2018, the pilot of a Liberty Helicopters’ AS350-B2 Ecureuil ditched the helicopter in the East River in New York City after the front-seat passenger’s harness tangled with and activated a floor-mounted engine fuel shutoff lever. The pilot was able to escape from the helicopter, but his five passengers drowned.
“As a fundamental matter, the flying public expects safe carriage from operators offering flight services for hire,” the FAA states in the NPRM. “Irrespective of whether an operator employs one pilot or a thousand, that company has the same responsibility to conduct safe operations.”
A Fait Accompli
Part 121 airlines have been required to have SMSs since 2018, based on a final rule the FAA published three years earlier. That smaller operators will be required to implement SMS programs is considered a fait accompli; bizav associations have focused their response to the NPRM on ensuring that the eventual regulation is scaled, or right-sized, to the resources of the companies they represent.
During industry forums designed to generate feedback from the operator community, concerns have been raised (as expected) over the cost of the approaching mandate, but also over the applicability of safety measures that companies have implemented on their own or through voluntary programs.
“We take safety very seriously—we haven’t implemented a formal SMS due to the cost of doing so,” said one operator who spoke during a National Air Transportation Association (NATA) webinar in February. NATA, which represents aviation businesses including Part 135 certificate holders, says 95% of those operators have fewer than 100 employees.
The operator asked: “Am I going to have to hire a compliance person? I’ve got myself as DO (director of operations) and my chief pilot and four or five pilots underneath us. We don’t need a 200-page SMS. How is the FAA going to scale its requirements to take into account the fact that I can’t pay a $60,000 salary to a compliance officer to make sure that we’re meeting what the FAA wants us to do.”
Another operator asked if the safety practices his company already follows will be satisfactory to the FAA. “We’re a small company,” he explained. “We’ve morphed over the years, but we’re three aircraft [and] eight pilots right now. We do everything on pen and paper. We don’t do any kind of electronic risk [analysis] or any of that. Is that good enough?”
In the NPRM, the FAA says it “does not anticipate that small organizations will need additional management and staff to satisfy the requirement elements of safety risk management. For example, smaller organizations, with few aircraft operating in a limited geographic area, might record and track the results of the safety risk-management process with paper records or digital files using common word processing or spreadsheet applications.”
In Part 2 of this article, we discuss the International Standard for Business Aircraft Operations and NTSB safety recommendations.
Related Content
