FAA Administrator’s Praise of his team’s Regulatory Achievements understates the Difficulty of the Approval Maze

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The FAA Administrator, in the below blog, points with pride to three accomplishments of 2014 and then explains the significance of each. This positive message is appropriate as it applies to the FAA staff; what the “FAA Ready for 2015” does not mention is the difficulty in promulgating the lifeblood of its safety mission, its regulations.

The FAA does not provide universal surveillance of all regulated entities; there are too many instances in which aviation actions occur to provide “one on one” coverage. Instead, the regulator establishes thousands of pages of detailed rules.

Each new requirement and every amendment of the FARs are subject to the Administrative Procedure Act and related statutes providing protections to the companies/ individuals covered by the proposed new stricture. The process from initial conception to final promulgation consumes five years or more in most instances, for the draft(s) of the rule

  • · requires an extensive staff to devote all of its attention to writing the rules/managing the process,
  • · is subject to a labyrinth of reviews by the Office of the Secretary of Transportation as well as the Office of Information and Regulatory Affairs (OMB, the White House),

· frequently bounces between and among OST and OIRA, and

· may be subjected to challenge before a US Court of Appeals (after final promulgation).

This “oversight” process adds years of delay. While there are substantive standards applied to these proposals (i.e. a “cost/benefit” and small business impact), all too frequently the technical judgment of the FAA staff and the executive policy directions of the FAA Administrator are the subjects of debate with the staff of OST and/or OIRA.

Two of the three accomplishments which Mr. Huerta cited in his blog piece are long delayed rule-making products. Ever the diplomat and perhaps reflecting his Washington Insider status (a good thing), the Administrator does point to the “help” from the overseers of his safety rules. There is strong, yet obscure, evidence of the impact of those reviews.

Periodically, the Department of Transportation publishes its Report on DOT Significant Rulemakings (December, 2014) and that includes a list of 22 NPRMs which are priorities for the FAA. If one reads between the lines (remember this scorecard is kept by the DoT and surely the key dates will not reflect poorly on OST or OIRA), it is clear that the heavy hands of the reviewers contribute to the “tardiness” of the promulgation.

One of the scorecard slights of hand is the alteration of the milestones. It becomes clear that the creation of a new timetable is a means of obfuscating the problem. More often than not, the publication of a new set of dates (a second or third column on the scorecard with an entirely new set of calendar points) really reflects that the reviewers have deemed the FAA’s work product inadequate and compelling a start-over.

Some prominent numbers can be drawn from the scorecards of the top 10 rules which are ranked in order of regulatory importance :

· on average these important projects were started over five years ago,

· on average these important projects are more than 3 ½ years (and counting) past their legal deadlines,

· five of the projects ascribe their delays to “unanticipated issues regarding further analysis”, two to the ambiguous “N/A”, two to “other higher priorities” and one to “additional coordination required” (let your imagination translate these non-sequiturs to plain English),

· statuses: one has been published; two were sent to OST in the 4th quarter of 2014 (no forecast FR publication date); one sent to OMB in the 4th quarter of 2014 (no forecast FR publication date); one released by OMB (no forecast FR publication date); and five of these important safety rules have no dates in their schedule! That’s a low showing of progress for these important FAR amendments.

· beyond the top ten (11-23) projects, three are awaiting “additional coordination” and the remainder have “N/A” as their status. (let your imagination translate these non-sequiturs to plain English)

The #10 project on the Significant Rulemakings list addresses Pilot Professional Development and here is how the project is described:

This rulemaking would amend the regulations for air carrier training programs under part 121. The action is necessary to ensure that air carriers establish or modify training programs to address mentoring, leadership and professional development of flight crewmembers in part 121 operations. This rulemaking is required by the Airline Safety and Federal Aviation Administration Act of 2010.

That sounds like an important assignment from Congress and one which has a high public profile. The FAA moved its expert recommendation to OST within seven months of the initiation of the work; the Secretary’s staff forwarded the draft NPRM to OMB within 60 days. That office of the White House has held this proposed enhancement of pilot training for thirty-five months and returned it to the FAA. This history raises two obvious questions:

· Query: what was so complicated that the wizards at OIRA needed to gestate on this training issue for almost three years?

· 2nd Query: how does a bunch of bureaucrats interpose their “expert” judgment on technical training requirements for pilots written by aviation safety professionals?

Such observations must be disturbing to those passengers and airline employees, who depend on the currency of the FARs for the aviation safety.

The Administrator in his message on 2015 gave deserved credits to his staff. His plaudits were somewhat understated because he did not elucidate on the difficulty of the hurdles which the FAA career employees must overcome in order to get their work out. Consider the above analysis a codicil to Mr. Huerta’s statement; their tenacity is exemplary.

Yes, the FAA tends to be careful in articulating safety standards, but No, the major delays in getting these rules to aviation is not their fault!

BLOG POST: FAA ready for 2015

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