The question that the passenger might ask is, although EASA has spoken of “risk management” whether it would be prudent in this context to apply “risk avoidance”.
by Dr. Ruwantissa Abeyratne in Montreal
“There is no reason to lift up more fuel reserve into the sky than necessary; lifting fuel burns more fuel,” EASA flight standards director Jesper Rasmussen
The European Aviation Safety Agency (EASA) which is charged with ensuring aviation safety in Europe has recently published a change to its safety regulations which will permit airlines to reduce the amount of fuel carried for diversions and delays. According to Aviation Week of 28 March 2022 EASA Flight Standards Director Rasmussen has justified this interesting regulatory change by saying “[T]his can be done without compromising safety. The reduction is possible thanks to better assessment methods and better data, which allow airlines to carry out a more precise risk assessment”.
Obviously, this decision has been taken as a seemingly proactive environmental measure as EASA has claimed that allowing aircraft to reduce hitherto minimum standards of required fuel on a flight could “cut CO2 emissions by up to 3 million tons annually, representing approximately 1% of European flight emissions”.
The new rules will also apply to aircraft powered by alternative energy sources, such as electric aircraft.
C.M. Kerwin (1994) in his book Rule making - how government agencies write law and make policy says “Rules like legislation, attempt to structure the future. By creating new conditions, eliminating existing ones, or preventing others from coming into being, rule implement legislation that seeks to improve the quality life. The term ‘future effect’ is thus a crucial element in the definition of rules because it allows a clear contrast to situations in which agencies issue decisions, acting in their judicial capacity. .... .... An order applies existing rules to past or existing circumstances. Although an order may have a future effect ... its primary purpose is not the creation its primary purpose is not the creation of policy or law to create new conditions”.
Before delving into the legal and regulatory aspects of this conundrum it must be said that EASA is highly respected as a thoroughly competent safety agency consisting of well qualified technical and rulemaking professionals. Therefore, this essay is by no means saying that the decision is flawed, although it will highlight certain inconsistencies and considerations that, from a legal and regulatory perspective do not comport with existing regulatory requirements.
The above notwithstanding, it is interesting to know how two key stakeholders: the airline passenger; and The International Civil Aviation Organization (ICAO) – the specialized agency of the United Nations – would react to this new development. Firstly, would the passenger know of this fact? Ought he/she to made aware? How comfortable would they feel, travelling in transport that is vaunted as the safest transport mode which now could be tainted in their minds as being exposed to a possible threat of danger to their lives? Secondly, how would ICAO react, having stringent Standards in its regulatory structure which contradict this measure?
Regulatory Aspects
The global regulatory structure of operations of aircraft is contained in Annex 6 (Operations of Aircraft) to the Convention on International Civil Aviation which in Standard 4.3.6.1 provides: “An aeroplane shall carry a sufficient amount of usable fuel to complete the planned flight safely and to allow for deviations from the planned operation”. This incontrovertibly requires an air operator to carry a “usable” quantity of fuel to provide for possible deviations of the flight. Standard 4.3.6.3 follows through by requiring that the pre-flight calculation of usable fuel required must include: taxi fuel, which is the amount of fuel expected to be consumed before take-off, taking into account local conditions at the departure aerodrome and auxiliary power unit (APU) fuel consumption; trip fuel, which is the amount of fuel required to enable the aircraft to fly from take-off, or the point of inflight re-planning, until landing at the destination aerodrome; and contingency fuel, which must be the amount of fuel required to compensate for unforeseen factors. On this basis the preflight calculation of fuel must bl be five per cent of the planned trip fuel or of the fuel required from the point of in-flight re-planning based on the consumption rate used to plan the trip fuel but, in any case, must not be lower than the amount required to fly for five minutes at holding speed at 450 m (1 500 ft) above the destination aerodrome in standard conditions.
Standard 4.3.6.5 sounds a peremptory tone when it prescribes that a flight must not commence unless the usable fuel on board meets the requirements above.
Presumably, EASA took into consideration paragraph 2.1.3 of the ICAO Flight Planning and Fuel Management Manual (Doc 9976) which states that “…the modern aviation community increasingly recognizes the need to complement existing compliance-based approaches to safety with a performance-based component as a means to increase overall operational efficiency. This potential for increased efficiency requires a measure of operational flexibility that may not be possible in a purely compliance-based environment. In the proper environment, however, such flexibility can yield significant efficiencies while maintaining or improving levels of safety. As such, many consider the incorporation of performance-based elements into the regulatory framework as an important step in minimizing the environmental impact of aviation emissions”.
It must be stressed that the Flight Planning and Fuel Management Manual contains mere guidance material as against the binding Standards of Annex 6 discussed above.
Nine authors, writing an article titled Risk analysis of the EASA minimum fuel requirements considering the ACARE-defined safety target in an issue of The Journal of Air Transport Management of 2017 say “Our analysis shows that the current fuel requirements of the European Aviation Safety Agency (EASA) are not sufficient to guarantee the safety target of the Advisory Council for Aviation Research and Innovation in Europe (ACARE), which is less than one accident in 10 million flights. To comply with this safety target, we recommend increasing the Final Reserve Fuel from 30 min to 45 min for jet aircraft. The minimum dispatched fuel upon landing should be at least 1 h.”
It is worthy of note that this article (published years before the current regulatory change of EASA) represents results, as claimed in the article “of flight simulator experiments (60 runs) with randomly selected airline pilots under realistic operational conditions and discuss them in light of current fuel regulations and potential fuel starvation. The experiments were conducted to assess flight crew performance in handling complex technical malfunctions including decision-making in fourth-generation jet aircraft”.
Legal Aspects
In the unlikely event of an aircraft being forced to perform what is called CFIT (Controlled Flight into Terrain) the Montreal Convention of 1999 – which many European countries have ratified -would apply where Article 17 prescribes that the carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking. Article 21 carries an exoneration of the carrier if such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or such damage was solely due to the negligence or other wrongful act or omission of a third party.
The question that the passenger might ask is, although EASA has spoken of “risk management” whether it would be prudent in this context to apply “risk avoidance”. Risk avoidance has been defined to involve the risk assessment technique that entails eliminating hazards, activities and exposures that place valuable assets at risk. Unlike risk management, which is calculated to control dangers and risks, risk avoidance totally bypasses a risk. Is this not more appropriate when balancing human lives with reducing engine emissions, particularly when the latter could be achieved in other effective ways?
Dr. Abeyratne, who has published 36 books on aviation law and economics, is the author of Rulemaking in Air Transport: A Deconstructive Analysis, Springer:2016.
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