Aviation attorneys typically do not help their business aircraft operator clients obtain authorizations from the Federal Aviation Administration to operate in reduced vertical separation minimum (RVSM) airspace. But lawyers quickly can become involved in defending against alleged violations of these requirements, so they need a working knowledge of the requirements. What follows is some historical background on RVSM, plus some current issues that attorneys should be aware of regarding compliance and enforcement activity in this area.
The advent of air commerce created the need for guidelines to separate aircraft safely. By the 1940s, one method was to specify that airplanes would fly at designated altitudes with at least 1,000 feet of vertical separation between them. By the 1950s, as airplanes could climb increasingly higher, this separation grew to 2,000 feet at altitudes above 29,000 feet because the altimeters of the time grew increasingly less accurate with increasingly higher altitudes.
With the development of better altimeters and related equipment, it became feasible and safe to maintain separation of just 1,000 feet between aircraft at these higher altitudes. More importantly, with the transition to the jet age, more operators wanted to fly in that higher airspace due to the increased fuel efficiency it afforded. Thus, it became more desirable to condense operations in that airspace from 2,000 feet of separation to 1,000 feet.
In 1973 the Air Transport Association of America first petitioned the FAA for reduced separation to 1,000 feet above 29,000 feet. The FAA initially declined, stating that technology had not yet improved enough to make this condensed separation safe.
Technology continued to improve, however, and by the early 1990s the FAA was willing to reconsider the proposal. On April 19, 1997, in 62 Federal Register 17480, the FAA issued new rules, adopting and applying to U.S. registered aircraft for the first time the concept of RVSM airspace, which condensed vertical separation to 1,000 feet of separation for properly equipped aircraft flying above 29,000 feet and which excluded aircraft not so equipped from that airspace. The FAA applied these new rules initially to airspace over the North Atlantic but incrementally increased the airspace to which these rules apply, so by 2005 the RVSM requirements essentially applied on a worldwide basis.
Today, rules 14 C.F.R. §91.180 (for domestic operations) and 14 C.F.R. §91.706 (for international operations) essentially say that an aircraft operator may not operate between 29,000 feet and 41,000 feet (referred to as RVSM airspace) unless: 1. The operator meets certain requirements listed in Appendix G to 14 C.F.R. Part 91, and 2. that operator has received specific authorizations from the FAA to do so, which usually comes in the form of a letter of authorization (LOA).
To obtain an authorization, the operator first must show the FAA three things: 1. The airplane contains the required equipment to meet the technical requirements to safely keep an aircraft at the designated altitude; 2. it has an appropriate maintenance program to insure that the equipment remains operable; and 3. the pilots who will fly the airplane have the appropriate training to properly operate this equipment.
The FAA can clear an operator who has received this authorization to cruise at the highly desirable altitudes between 29,000 feet and 41,000 feet. Operators that do not have this authorization may receive a clearance to climb through and cruise above 41,000. But, most likely, they will have to cruise below 29,000 feet at a much less fuel-efficient altitude. In short, with respect to modern business and commercial aircraft, operators must obtain this authorization to utilize fully these aircrafts’ flight-range and speed capabilities.
Aviation lawyers need to be aware of several current RVSM issues that can impact their clients, primarily in the form of administrative delays by the FAA and compliance lapses by operators.
With respect to the FAA, operators can face significant delays — sometimes of up to several months — in obtaining RVSM authorizations. This can be a problem when operators buy new jet aircraft but cannot fully utilize them while waiting for these authorizations. The FAA has created a combined industry and FAA task force (of which the author is serving as industry co-chair) — called the RVSM LOA Process Enhancement Team of the Performance-based Aviation Rule Making Committee — to work on updated procedures and guidance in an effort to secure faster issuance of at least some of these authorizations.
With respect to operators, some have not kept up with various requirements in their original authorizations, thus their authorizations are no longer current. More importantly, some operators are attempting to fly in RVSM airspace without the proper authorizations, either inadvertently or deliberately, to gain access to the desirable airspace.
Not only do such actions potentially create significant safety issues, but a quick review of the FAA’s legal compliance enforcement manual — Order 2150.3B — shows that they also can lead to significant FAA enforcement actions. These can include loss of pilot certifications, significant civil penalties against the operator and potential criminal action if an operator knowingly filed false paperwork with the FAA.
Aviation attorneys need to be prepared for enforcement activity related to RVSM compliance. Obtaining appropriate RVSM airspace authorization is not only an important safety issue, but if done improperly it could also lead to significant legal jeopardy.
For all of these reasons, lawyers should make sure they possess a basic understanding of RVSM requirements and should work with their clients, their pilots and/or their aircraft managers to be in full in compliance on RVSM.