Cost/Benefit Critiques of FAA and NTSB are apt, the Answers miss the Mark

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Article: Time for a Shakeup

January 22nd, 2014 by Ron Rapp

Ron Rapp, author of the above-linked blog, is a Southern California-based charter pilot, aerobatic CFI, and aircraft owner. He criticizes both the FAA and the NTSB, largely on the basis of their separate supports for the mandatory screening for obstructive sleep apnea (OSA) in pilots. His critiques are well articulated, but his cures, “mission restatements”, are inappropriate as to one and may be better defined using an existing methodology as to the second.

The FAA Federal Air Surgeon made a proposal without the benefit of the appropriate procedures and has been substantively attacked by the set of professionals most able to substantively attack the OSA premise, AMEs . Bills have been introduced by members of the House and Senate that would compel a proper procedure before considering the “rule”.

Moreover, the FAA, as an executive agency, is subject already to the rigorous cost/benefit review imposed by OMB Circular 94. That directive also includes a regulatory impact analysis and the estimates of costs for industry compliance are made there (in fact, it has been argued that the current airline safety performance is so high that the marginal benefits for many proposed rules are so small as to block most proposals under a BCA!) The OSA, if it were subjected to the proper regulatory scrutiny mandated by the APA, would likely have failed under the arguments of Mr. Rapp, AMEs and the industry as assessed by the BCA.

The Rapp recommended mission restatement for the FAA, to wit–to make cost analysis part of its regulatory regime—is already incorporated in its ordinary processes (Dr. Tilton’s OSA rap being a precluded exception). It can be said that the FAA’s rule-making process is sclerotic , but the diagnosis of that hardening of its regulatory circulation is not attributable solely to its efforts to assess the economic impact of its proposed rule.

The NTSB is not an Executive Agency and its scope of activities appears to have grown by accretion. Its recommendations are not subject to the strictures of the BCA. In some ways the NTSB is not intended to be encumbered by the weight of practical considerations. As one wit put it, the NTSB has all of the “authority” of the FAA, but none of the “responsibility” associated with defining, implementing and surveilling new rules.

The NTSB, itself, has endorsed the merits of Safety Management Systems in its 2011 Top 10 Most Wanted List . It has been recommended that the Board adopt SMS as a methodical means of defining such broad objectives with some quantifiable differentiation. This ICAO recommended methodology is heavily rooted in safety statistics but also relies heavily on costs and benefit to justify on both macro and micro basis.

The answer to Mr. Rapp’s critique of the NTSB might be that body of safety to place precise weights on its recommendations. By subjecting its internal analyses of its agenda and the recommendations of a single accident to the refined examination of SMS, the NTSB will follow its own 2011 recommendation, will lead the industry by example and will add credibility to its findings. If, for example, its pronouncement on OSA was supported by the hard numbers which SMS develops, then Mr. Rapp and others will have to respect such objective data cited in such NTSB reports.

The FAA’s regulatory mission includes Mr. Rapp’s real world view, while the NTSB’s does not. However, the five wise persons charged with assessing the safety of aviation and other modes, could adopt, on its own, SMS as a uniform methodology for all of its actions.

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