Posts about: "Section 373 of the FY26 NDAA" [Posts: 10 Page: 1 of 1]¶

Note that this apparently has passed the House. I presume it's back to the Senate to accept or to modify/reject.

From https://armedservices.house.gov/uplo...to_s._1071.pdf
RULES COMMITTEE PRINT 119–16 TEXT OF HOUSE AMENDMENT TO S. 1071

While it starts out with a request that military training flights may need to have warnings to civilian aircraft, it does not require ALL military operations near DCA to do so and then says:
From Section 373
p275
9 ‘‘(b) WAIVER AUTHORITY.—The Secretary of a mili-
10 tary department, with the concurrence of the Secretary of
11 Transportation, may waive the limitation under subsection
12 (a) with respect to the operation of an aircraft if that Sec-
13 retary—
14 ‘‘(1) determines that—
15 ‘‘(A) such waiver is in the national security
16 interests of the United States; and
17 ‘‘(B) a commercial aviation compatibility
18 risk assessment has been conducted with re-
19 spect to the operation of the aircraft pursuant
20 to the waiver to mitigate the risk associated
21 with such operation; and
22 ‘‘(2) in the case of a waiver to be in effect for
23 a period exceeding 30 days, submits to appropriate
24 congressional committees notice of such waiver, in-
25 cluding a copy of the applicable commercial aviation
p276
1 compatibility risk assessment specified in paragraph
2 (1)(B)

It goes on to specify that this waiver is for DCA.

One only puts in waiver authority if there is certainty it will be used.

This also only appears to affect DCA, leaving civilian aircraft everywhere else in the USA to be blind to the military.

His opposition by voting "YES" on it is curious. It seems like the wrong order to proceed. Would it not be better to object to the provision before the vote when there could be some influence in the House rather than hoping the Senate won't agree and just pass it as-is.

NTSB:
It is true that if the -only- change was using ADS-B Out on the helicopter, this accident would still have happened.

The CRJ was equipped with TCAS, which may or may not have been applicable at this low altitude as it is suppressed at 400 ft. The preliminary report does not indicate the helicopter having a TCAS or having an operating one. It did have the ability to produce ADS-B Out. Neither aircraft is reported to have had ADS-B In.

Since many operators seem to loath spending money on ADS-B In, the recommendation from the NTSB was to (1) stop simultaneous flight path use and (2) go elsewhere when the approaches were in use. The FAA agreed.

Per https://data.ntsb.gov/carol-main-pub...tails/A-25-001 the FAA did what was recommended about simultaneous use.
Per https://data.ntsb.gov/carol-main-pub...tails/A-25-002 the FAA made a satisfactory response concerning planning the alternate route(s)

This legislation is the exact opposite of that recommendation.

No doubt the anger isn't just that the NTSB has yet again been ignored, it's that the FAA agreements to safety measures are targeted for destruction in a way that recreates the circumstance of the tragic event.

I said at first, on seeing this collision a few hours after the event, that I felt rage that so many safety measures are available and yet none of them was actually used.

This section, 373, is what I consider an intentional sabotage of the safe operations around DCA.

The FAA literally had advertising videos showing the use of ADS-B In on helicopters for this exact purpose, to give situational awareness to the pilots long before there would be a need to deconflict with other traffic (see end) . No sudden swerves as TCAS attempts to make a last moment save of a terrible situation. TCAS alone cannot be the solution as TCAS gets shut off to avoid nuisance complaints about the terrain the plane is intentionally going to run into or other proximate planes waiting for takeoff.

ADS-B In is for noting where everyone else is in the neighborhood of the aircraft. Had the helicopter been equipped with ADS-B In they would have known the speed and direction of the CRJ and seen it was on a collision course.

As usual it appears there is no name attached nor meeting notes about who submitted what became Section 373. There is certainly no justification paper that will see the light of day.

If those exist, please, someone, prove me wrong.


duplicate:

I cannot find it on YouTube.

An actual user who avoided a mid-air using ADS-B In (Trent Palmer, if anyone wants to avoid him; not everyone is liked):

Thank you MechEngr for stating in detail, and explaining, the recommendations made by NTSB and their relation to ADS-B systems, both Out and In.

It appears I had mistakenly thought NTSB had made a recommendation after the accident about ADS-B. That was incorrect.

It would be interesting to try to unearth the document trail with respect to the agreement reached by FAA and the DoD with regard to ADS-B Out usage, which agreement was reached (per the NTSB Chair letter) after the accident. Of course unearthing documents which relate to controversial subjects could well be a fool's errand. .... ..... ...... oh wait, there's such a thing as pre-trial discovery, and the lawsuits are in federal district court.

Senator Cantwell gave two speeches in recent days on the Senate floor about Section 373. I'm not posting links to them, because "politics". Still, something worth noting from them is that the Senator, previously Chair of the Commerce Committe - the Committee with jurisdiction for civil aviation - and currently Ranking Member, stated she does not know who inserted the highly questionable Section 373 into the NDAA. And whether as prevention or preemption, yes, the families of Flight 5342, including the family of the First Officer, are raising a loud objection to Section 373 - but the concerns over the legislative provision are not based on any effort to serve or to please the trial lawyers suing on the families' behalf. Chairwoman Homendy of the NTSB does indeed operate in a political environment, no kidding, but she is conducting her public advocacy as a safety professional and not a politician. (I'm not lauding any Senator's bona fides as aviation safety advocates because, again "politics.")

As a non-lawyer and non-American, can I just clarify my understanding of this situation:

• Following the accident, the NTSB recommended that military helo flights not fly that route while 15/33 was in use;
• The FAA concurred, and this was implemented on a temporary basis;
• Section 373 of a bill that has already passed the House would allow military helo flights to resume, as prior to the accident, with 'waivers' to let them fly there as they like;
• The waivers could be granted by many military personnel at different levels of seniority, meaning the waivers would be effectively permanent;
• The NTSB had recommended that military flights in DCA airspace should use ADS-B Out, so that military flights could be detected above 900ft in a busy airspace. The FAA and DoD agreed.
• Section 373 takes away the requirement for ADS-B Out, reducing safety.
• Section 373 gets round the ADS-B Out requirement by specifying that military aircraft should only be required to be able to trigger to TCAS alerts.
• TCAS does not activate at low altitudes, such as when landing, so is useless on the route the helos use to pass DCA.
• Therefore the only reasonable safety measure is not to let military flights onto that route while 15/33 is in use. Section 373 reverses that safety measure.
• 'Someone' sneaked Section 373 into the bill, and nobody knows who or when.
• The bill passed without anybody noticing Section 373.
• So unless the Senate challenges, this legislation will go through
• The legislation would make it harder for families to blame the military/government for the DCA accident, by confirming the correctness of protocols at the time
• Chair Homendy is furious.

If I've got this wrong, can you correct me?

I'm absolutely staggered that something this important could have been 'slipped' into a major piece of legislation, without a final read-through of changes since the last version. Surely there's an audit trail of changes and who submitted or entered them?

Re: AirScotia and the summary in the recent post:

"The NTSB had recommended that military flights in DCA airspace should use ADS-B Out, so that military flights could be detected above 900ft in a busy airspace. The FAA and DoD agreed."

I'm not certain the first sentence above is correct. The letter from the NTSB Chair regarding Section 373 states: "The NTSB has, for decades, advocated for ADS-B In and Out and its substantial contribution to safety, especially near airports."

The NTSB on March 7 issued a pre-preliminary report of sorts, specifically urging immediate action to shut down helicopter route 4 when Runway 33/15 is in use (for landings and departures, respectively). There is no reference to ADS-B in the March 7 urgent recommendation document.

I cannot say how it was that FAA and DoD agreed to start ADS-B Out use by military aircraft in the relevant airspace. But it did not result from the same urgent recommendations, at least insofar as those recommendations were stated in writing on March 7, which led to the closure of helicopter route 4. (I would note that the Preliminary Report by the Board was issued a few days later, on March 11.)

Regarding Section 373's legistative history, to use a term it perhaps does not deserve, there is less mystery than your summation suggests. There certainly are staff of one or both Armed Services Committees, and/or staff of Members serving on one or both of the those Committees, and/or the Representatives and/or Senators who run those Committees, who originated the language, and agreed upon the version that ended up in the legislation (it obviously would have gone through a series of revisions).

So the question is why was their action done without consulting the same people (Committee staff, House/Senate members' staff, and the legislators themselves) whose routine committee work has jurisdiction for civil aviation.

And there's another level also. Where within the defense bureaucracy or some other place in the interagency or executive branch did the impetus for the provision originate? I can see that the post pointing out that the provision, if enacted, would not help the Army in court, is probably correct. What other reason the Army may have had to sponsor the provision (and to do so quietly) I can't say. Which leaves, can it really be that difficult to devise a system for how and when military aircraft with significant emergency or classified operations (as compared to essentially routine operations) need different handling in the airspace?

Administrator Bedford testified today before the Aviation Subcommittee of the House Transportation and Infrastructure Committee. The ostensible calling of the hearing as noted above was for an update on implementation of the FAA Reauthorization Act of 2024 as well as general oversight. As was widely anticipated, several Members questioned the Administrator, at times pointedly, about the presence and effect of Section 373 in the FY2026 NDAA (National Defense Authorization Act), i.e., the controversial provision undoing safety-related changes made in the aftermath of the DCA midair collision on 29 Janaury of this year.

The video link I am including in this post is from the Forbes magazine website (and I apologize that it includes adverts). I don't know if the video link presumably available on the Subcommittee webpage (or it could be on the Committee webpage) has the same time-stamps as the Forbes video and since it's the one I watched, I'm using it here.

The families of at least some of the families of people who lost their lives in the DCA midair were present for the hearing.

Rep. Nehls (R.-TX), Chair of the Subcomm., and the other three leaders each gave opening statements (Comm. Chair Sam Graves (R.-MO.), Comm. Ranking Member Rick Larsen (D.-WA.), and Subcomm. Ranking Member Andre Carson (D.-IN)). Representative Nehls's opening statement hinted that ADS-B Out and Sec. 373 were going to see some emphasis (unsurprising, as Rep. Nehls had already issued a statement decrying Sec. 373).

The Administrator's testimony started at around 19:00. When he concluded, the Subcommittee Chair, Rep. Nehls, opened the questioning (at about 23:00). He asked, in a fairly pointed manner, about the controversial Section of the NDAA, Sec. 373. What did the Administrator answer, readers of the thread (who presumably have far better things to do than watch Congressional hearings) may wonder??

Mr. Bedford responded that FAA policy is not to comment on pending legislation. But he added that the section had shown up in the NDAA without any advice having been sought from or given by the FAA. And that both he and Secretary Duffy have "no intention" of going back to the airspace situation as it was on January 29.

At about 29:15 the Administrator referred to "someone in the Senate" having placed Section 373 into the NDAA. At about 29:45, he noted that after the accident the gaps in the safety situation were closed "and will remain closed." He also seemed to refer to "renegotiation" of the FAA Memorandum of Agreement with the Department of Defense (and at least twice during the hearing noted that the DoD had been good partners with FAA with regard to DCA (and Capital Region, I believe) airspace usage).

Congresswoman Norton also questioned the Administrator about Section 373 (1:47:__) although without much follow-up.

At about 2:15:__ (oops, I didn't note who was questioning) Mr. Bedford again used the phrase, "not going back" to the airspace situation as it existed, and that mixed traffic situations (military and civil) were, "not gonna happen". He noted the Memorandum of Agreement between FAA and the DoD - in this instance not referring to any renegotiation process (whether presently or planned) - and added that he is "not aware of any desire to change it" (close to verbatim, but I'm not a court reporter).

The Administrator's testimony was noteworthy for several other reasons (not counting the evidence the hearing provided that not every single Member of the House of Representatives deserves categorization in MechEngr's "critter" status), and here are two I thought most significant - most significant to a pro pilot audience, that is.

The current Administrator is a very smooth operator and this should surprise no one (and this is meant as a compliment to professionalism). Dealing with sometimes ill-founded questions (to be polite) and a few outright stupid questions takes patience. Beyond that, there were no instances, at least to the extent of my knowledge, when the Administrator ran away from the truth of the situation across the FAA. And he still managed to be a good soldier (so to speak) as a member of the current Executive administration. Without getting into politics but strictly in the realm of operating as a professional, not everyone in high places at the moment has the ability as well as willingness to talk detailed "X's and O's" about complicated federal enterprises while still staying within the lanes drawn somewhere on Pennsylvania Avenue (see? - not politics).

Second, the Administrator provided several answers in his testimony about the status of the modernization program. As a possibly interesting even if small point, I don't think I heard "brand new ATC system" or even just "new ATC system" even once; it consistently was Air Traffic Control Modernization. Substantively, he outlined four layers: copper wire to fiber; analog to digital systems (and TDMA to VOIP); analog architecture in general to digital architecture; and a fourth layer of "compute" meaning that now, each facility has its own computing resources and the program intends to move this into one cloud-based layer. He also emphasized work that has already been done and gave a slam-dunk defense of selection of Peraton, and sorry for this disrespect, to an outright stupid question about FAA selecting Peraton as systems integrator.

(I realize the ATC Modernization program isn't exactly about DCA but in two senses it is; the accident greatly motivated the program to be drawn up and to receive the first tranche of appropriations, and the families of the accident victims were present for the hearing today. And a third factor: the facts about the modernization program are important as a counterpoint to Section 373's troubling content, not to mention its illegitimate sourcing. I have not heard one single voice of a legitimate aviation wise-person, not a single legitimate worthy, say it is a good provision. How modern can the NAS become if something like Section 373 -- no wait, if Section 373 itself actually -- becomes law?)

Link: https://youtu.be/UJM4YsV_hmw?si=116yx6W1AnJaIELY

The Senate has passed the legislation with the controversial Section 373 still included. According to The Wall Street Journal, the bill now goes to the President for signature into law. (Also, I should have checked my knowledge of legislative process more thoroughly - my previous post stating a House-Senate conference would follow Senate passage was incorrect.)

But there is other action regarding Section 373. Excerpt from the WSJ article:
________________
"The bill passed despite concern from federal officials and senators over an airport-related measure in the 3,086-page package. Lawmakers said it was unclear how the provision ended up in the final version, and senators quickly approved a bill that would overrule it. That measure still needs to be passed by the House.
......... [ paragraphs with background re: accident omitted ]......

"Anger at Section 373
Sens. Ted Cruz (R., Texas) and Maria Cantwell (D., Wash.) led a bipartisan effort to remove Section 373 and replace it with the ROTOR Act, which would require aircraft in controlled airspace to be equipped with ADS-B and would impose stricter oversight of military flights in the area. At a press conference Monday, Cruz, Cantwell and families of victims from the collision denounced the section.

\x93There\x92s no reason to have this language in the National Defense Authorization Act unless you\x92re somebody who wants to continue to see letting the military do whatever they want to do in a congested airspace,\x94 Cantwell said.

Trump administration officials have also criticized the measure. \x93It\x92s a safety whitewash,\x94 said Jennifer Homendy, chairwoman of the National Transportation Safety Board, last week. Secretary of Transportation Sean Duffy said that regardless of any legislation passed by Congress, he will ensure that there is no cross traffic between planes and helicopters.

After the vote Wednesday on the NDAA, Cruz took to the floor and passed the ROTOR Act by unanimous consent, a shortcut to quickly approve legislation when no senator objects. A spokesman for the Defense Department said the Pentagon supports the bill."
________________________

Some reactions and at least attempts at valid observations.

FAA and ATCOs. Did the Department of Justice's Answer to the Complaint throw the controller(s) "under the bus?" Yes, and no. In brief, the Answer does not state that the controllers' acts or omissions were a cause-in-fact and proximate cause of the accident.

The Complaint alleges a long list of allegedly negligent acts by the controller(s) in Paragraph 250, which starts on page 158 and runs on to 164 (in the Answer). Without having studied the pleadings for hours upon hours (as one might do in actual practice) perhaps I've missed something -- but I think the only admission made by DOJ with regard to the controllers is that a very specifically cited FAA rule or procedure of some sort was not followed: "the DCA local controller did not comply with \xb6 7-2-1(a)(2)(d) of FAA Order JO 7110.65AA, chg. 3, Air Traffic Control (Sept. 5, 2024)." This specific admission is made recurrently in the Answer, amidst many other denials of (again, unless I missed something) everything else in the massive and detailed Paragraph 250 of the Complaint.

Edit [forgot to include]: the Complaint alleges generally the following about FAA and the ATCOs.
"the Federal Aviation Administration\x92s air traffic controllers failed in their two most important priorities, namely to separate aircraft in airspace and issue Safety Alerts when aircraft are in an unsafe proximity to one another; that the air traffic controllers on duty failed to abide by numerous other policies and procedures, including that air traffic control failed to provide traffic advisories to both aircraft and air traffic control failed to resolve an aural and visual Conflict Alert that advised air traffic control that the two aircraft were on an unsafe and converging collision course; and that the air traffic controllers failed in their duties concerning the \x93tower team concept\x94 within an air traffic control facility so that all controllers assist each other to prevent, amongst other things, a mid-air collision. The Defendants\x92 [meaning, both the U.S. and the airlines] collective failures (for which they are jointly and severally liable) caused, and/or contributed to this senseless and entirely avoidable tragedy."

So, "no", because the DOJ does not admit ATC was a cause-in-fact and proximate cause (both needed for liability, if I recall 1-L) but yes, first, specifically with regard to the FAA Order, and second, for all of the reasons ATC Watcher invokes. Whether those several factors would ever be considered for inclusion in an Answer to a big tort case such as this is doubtful . . .BUT especially after the fireworks over Section 373, watch for the NTSB report to lay it all out. (And incidentally, the Complaint now includes several excerpts from NTSB hearing and docket - not sure if these were part of the original Complaint. The Answer is the first pleading in response to the Complaint and it has become the Master Complaint, as I understand it, because it is the pleading on behalf of all the plaintiffs, regardless of whether they are represented by the attorneys who filed the very first Complaint in the case. Further, according to press reports (WSJ print edition today) both the airline companies filed motions to dismiss. Thankfully, or maybe not, my Pacer account is acting up, so, no comment....)

2. The airline and its parent company. The Complaint paints a very negative picture about the acts and omissions of the airline companies and the two pilots of 5342. The Answer was filed only on behalf of the United States (FAA and Army) and so the DOJ does not address the specific allegations forming the claims against the airline - this is standard practice. Still, I found this in the Answer (re: Para. 174): "The United States admits that the AE5342 pilots failied to maintain vigilance and to see and avoid PAT25".

I am refraining from trying to summarize or comment on the many aspects of the story about the airline pilots and airline companies alleged in the Complaint. It is a very detailed story. It probably if not certainly will outrage people in the industry writ large. I've not practiced tort law, either suing or defending, but that won't stop me from saying that it seems pretty clear that the trial lawyers are gunning for the airline company deep pockets, the availability of punitive damages when those are not awardable against the Federal Government, the availability of a jury trial, and insurance policies. To state the obvious.

As for the Army, Para. 253 starts on page 168 and runs to 176; the DOJ admits some but not all of the many specifically alleged negligent acts and omissions by the Army and those pilots.

One other little item caught my attention. In paragraph 106, reference is made to "risk assessment" stuff the Army aviation unit conducted or did not conduct. "Risk Assessment", that wouldn't be the same thing as showed up in Section 373, by chance?

(For information, the case number in federal district court in D.C. is 1:25-cv-03382-ACR.)

According to reporting published today by The Air Current - one of its periodic articles reporting on air safety which are not paywalled - the NTSB will meet on January 27. The meeting will include revealing and voting on the probable cause determination produced by its investigation into the DCA midair collision 29 January 2025.

The reporting indicates that the Board's final report is expected within two weeks.

Various safety recommendations also are anticipated to be on the agenda for the NTSB's January 27 meeting.

Of particular interest, among many other factors involved in this horrifically senseless accident (my characterization, not found in TAC reporting as such), is whether the NTSB's meeting which will mark the end of its official investigatory process will touch upon the controversial section of the NDAA, Section 373 (subject of previous posts at the time of passage, upthread).