FAA’s Slow Part 23 Rulemaking Speed
Revision of Airworthiness Standards for Normal, Utility, Acrobatic, and Commuter Category Airplanes
On December 16, 2016, with much fanfare and considerable industry praise, the FAA issued the much anticipated FINAL RULE entitled- Revision of Airworthiness Standards for Normal, Utility, Acrobatic, and Commuter Category Airplanes. It is a 550 page Federal Register Notice (~50 pages of introduction and background; 388 pages reviewing the 692 comments to the docket; ~70 pages meeting all of the OMB and Congressionally mandated reviews – i.e. Regulatory Evaluation Summary; Initial Regulatory Flexibility Determination; International Trade Impact Assessment, Unfunded Mandates Assessmen; Paperwork Reduction Act; International Compatibility and Cooperation; Environmental Analysis; and Regulations Affecting Intrastate Aviation in Alaska; ~60 pages of a table correlating the old regulations with the new; and 110 pages of the new text).
Here are a few of the positive comments made in response to the issuance of this new, innovative rulemaking which by its new structuring of the process is expected to spur innovation:
- “’Aviation manufacturing is our nation’s top export and general aviation alone contributes approximately $80 billion and 400,000 jobs to our economy,’ said S. Transportation Secretary Anthony Foxx. ‘The FAA’s rule replaces prescriptive design requirements with performance-based standards, which will reduce costs and leverage innovation without sacrificing safety.’”
- “The rule is a model of what we can accomplish for American competitiveness when government and industry work together and demonstrates that we can simultaneously enhance safety and reduce burdens on industry,’ said FAA Administrator Michael Huerta.”
- “Manufacturers don’t expect the rewritten regulations to lead to new aircraft design proposals overnight. Simon Caldecott, chief executive of Piper Aircraft and chairman of the General Aviation Manufacturers Association, believes it will take at least a year after regulations take effect next August to see new technology at the airframe level.”
- “The Aircraft Electronics Association calls the rewrite approval ‘a significant breakthrough and looks forward to the expansion of these philosophies into rotorcraft as well as transport category aircraft, where appropriate.”
- “Speaking to journalists on 16 December, FAA administrator Huerta says the Part 23 rewrite will serve as a template for expanding the standards-based regulatory philosophy into other parts of aviation.”
[the above three quotes from Flight Global]
- “’Today is truly a landmark day for the general aviation industry,’ GAMA President and CEO Pete Bunce ‘This rule is nothing less than a total rethinking of how our industry can bring new models of pistons, diesels, turboprops, light jets, and new electric and hybrid propulsion airplanes to market, as well as facilitating safety-enhancing modifications and upgrades to the existing fleet. The new part 23 rule makes it easier for manufacturers to do so by reducing the time, cost, and risk involved in certification, while improving safety for customers.’”
- “The rule completes the process called for in the Small Airplane Revitalization Act (SARA), which the U.S. Congress passed unanimously and President Obama signed into law in 2013. That legislation was based largely on the recommendations of the Part 23 Reorganization Aviation Rulemaking Committee, which GAMA co-chaired.”
- “’The Part 23 rewrite would not have been possible without the dedication and tireless efforts of many in industry and the Federal Aviation Administration, the U.S. Department of Transportation, and the U.S. Office of Management and Budget,’ Bunce ‘We also want to thank SARA’s lead bipartisan sponsors, U.S. Representative Mike Pompeo (R-KS) and U.S. Senator Amy Klobuchar (D-MN), for shepherding the legislation through Congress so effectively and quickly. This rulemaking shows how, when government and industry work together, we can accomplish truly great things, and we look forward to this continued cooperation as the rule is fully implemented’.”
- “’When red tape slowed down the ability of our small aircraft manufacturers, like Cirrus, to bring new products into the aviation market, I introduced bipartisan legislation that was signed into law to simplify the process for businesses and help our aviation sector grow and succeed,’ Senator Klobuchar ‘After our efforts, I am pleased that the FAA has finalized the Part 23 rule for small airplanes, which will help our manufacturers compete globally and create the most innovative, advanced, and safest planes in the world.’”
- “’This new rule is great news for general aviation across our country, including the Air Capital of the World—Wichita, Kansas,’ Congressman Pompeo ‘I want to thank the FAA, industry partners, and supporters throughout general aviation for their hard work in making Part 23 modernization a reality and accomplishing what we set out to do through the Small Airplane Revitalization Act of 2013. This new rule will drastically reduce regulatory costs for airplane manufacturers and provide them with the certainty they need to grow and innovate’.”
- “GAMA Chairman Simon Caldecott, who is also President and CEO of Piper Aircraft, said, ‘As the leader of an aircraft manufacturing company, I can tell you firsthand that the Part 23 rule will allow Piper to bring new safety-enhancing technologies to our products quicker, as well as more cost-effectively respond to certification safety requirements.’”
- “’The new Part 23 rule is a great example of industry and government working together to improve safety and also to improve the introduction of new technology and advanced products,’ remarked Brad Mottier, Vice President and General Manager of Business and General Aviation & Integrated Systems for GE Aviation.”
- “Joe Brown, President of Hartzell Propeller Inc., added, ‘The Part 23 rewrite provides the framework to accelerate safety and innovation while also encouraging competition in general aviation—all things that Congress imagined in the Small Airplane Revitalization Act. I commend the FAA for meeting the legislative mandate with a sound regulatory system that encourages stakeholders to do what they do best. With the enhancements to Part 23, the general aviation industry is better positioned to bring improved products to market while also efficiently incorporating emerging or enhanced technology. In parallel, the FAA maintains its vital role in surveillance and oversight while deepening its risk-based methodology to improve safety.””
[the above 8 quotes are fom GAMA’s press release]
- S. Senator Jerry Moran (R-Kan.) released the following statement in reaction to the Federal Aviation Administration (FAA) issuing their final rule on small airplane safety certification standards today:
“The Part 23 rule is a commonsense solution that will empower the general aviation industry to innovate while continuing to improve aircraft safety. This rule will significantly decrease the regulatory burden and costs of certification for aircraft manufacturers in Kansas, strengthening their ability to remain competitive in the global marketplace
- “’We applaud these changes to streamline the certification process for GA manufacturers, bolstering industry innovation and adoption of vital new safety technologies, and ultimately leading to swifter regulatory approval for new aircraft designs and equipment,’ said NBAA President and CEO Ed Bolen. ‘These new standards are particularly beneficial to the vast majority of NBAA’s membership who operate light aircraft to further their businesses.’”
- “AOPA President Mark Baker expressed appreciation for the FAA’s work to finalize the Part 23 rewrite, which represents “perhaps the most significant and pivotal” reform for the future of GA aircraft. ‘We acknowledge the FAA’s achievements with Part 23 reform and anticipate a much-improved certification process for new aircraft with new innovations, exciting designs and technologies incorporated, but we must also focus on ways to fleet,’ he said”
The uniformly positive tone may belie the past and future frustration with the FAA’s pace on this important project. Mr. Bunce’s highlighted comments subtly reflect a view that industry took the lead on this project, submitted a well crafted NPRM, then went to Congress to pass two bills directing the FAA to move, while the FAA considered the initial proposal, sent it out for comments, held hearings/meetings (very unusual), issued an NPRM and then took three years to review the comments.
A short history
As noted in the preamble, the revision of the Part 23 standards was first raised before 2011; the Administrator chartered an ARC in 2011 and its work product was then issued as an NRPM in 2013. A December 16,2016 press conference was held announcing that the rule was being promulgated. Here are some stories about this tortuous process:
- FAR 23 ARC MAY CREATE EXCITING, NEW REGULATORY REGIME THAT ALLOWS INNOVATION, IMPROVED SAFETY AND GREATER FLEXIBILITY, October 11, 2012
- ACTING FAA ADMINISTRATOR CONFIRMS THAT PART 23 ARC IS GOING TO PROPOSE NEW, CREATIVE AIRCRAFT CERTIFICATION PROCESS, October 15, 2012
- GAMA’S BUNCE PAINTS PICTURE OF 2013—FAA BUDGET CUTS AND PROSPECT OF 2 X SAFETY @ ½ COST, October 24, 2012
- Part 23 Lessons may have Applicability to other FAA Regulations; Harvard Professor Agrees, March 8, 2013
- Bill Would Enact Part 23 ARC Recommendations, May 13, 2013
- Rethinking of GA Certification Regime Stimulates Innovation of European GA Aircraft Development, April 30, 2013
- Flight Design’s C4’s EASA Part 23 certification under surrogate new criteria and process might provide precedent for similar US treatment, August 11, 2014
- GAMA workshop draws positive indications about Europe and their CS/Part 23 progress, September 17, 2014
- Good News—the revised Part 23 is coming this year, April 30, 2015
- The FAA should expedite the Part 23 revisions for its own benefit & to follow Voltaire, October 27, 2015
- Part 23: The Massive, much awaited revision is here—initial observations on innovative GA aircraft certification by FAA, March 10, 2016
Among these commentaries are repeated statements by senior FAA staff that the project is receiving the highest levels of review and a pointed comment that “the lawyers are combing through the draft.” It is important to remember that the documents being reviewed by the FAA were the work product of two expert outside groups and included fine legal craftsmen.
The Final Rule noted that there were 692 comments, but admitted that (p.15 of the PDF):
“The vast majority of commenters overwhelmingly supported the proposed changes and provided constructive feedback so the FAA could clarify the safety intent in various sections of this rule.”
So the time consumed was merely summarizing and incorporating those submissions. The basic concepts of replacing current prescriptive design requirements with performance-based airworthiness standards and of relying on industry-developed standards by ASTM have been the accepted method of future Part 23 certification for over 3 years.
In that context, the annoucement, that the new, improved Part 23 would not be effective for another 8 months, must be extremely frustrating. One might have expected that the Senior FAA staff would be familiarizing the field with the prospective standards; not so. The Final Rule includes this comment (p.12):
“The FAA has decided it is necessary to delay the effective date of this final rule for 8 months, until [INSERT DATE 8 MONTHS AFTER DATE OF PUBLICATION IN FEDERAL REGISTER]. This final rule establishes a new performance-based system that will require additional training for both FAA and industry engineers, as noted in the NPRM regulatory evaluation summary. Several commenters expressed concern with the need for additional training and guidance in order to implement the new performance-based standards. The FAA finds that a delayed effective date will alleviate these concerns.
Delaying the effective date will provide the FAA time to conduct the training necessary to implement this rule in a consistent manner.”
Delving further into the comments, one of the most frequent critics is NATCA; for example, the FAA quoted that union, which represents the FAA certification staff, as saying(p. )
The National Air Traffic Controls [SIC] Association (NATCA) asked whether DERs will issue acceptance statements or approvals. NATCA asked how the FAA will change the designee policy and asked whether the FAA tends to accept or approve the standards.
In response to concerns regarding the role of the DERs and ODA engineers, the FAA is developing transition training for the FAA engineers, ODA engineers, and the DERs. The FAA is also reviewing the relevant orders and policies for needed changes, but does not expect changes to the basic certification process as the FAA engineers and industry designees will still be responsible for finding compliance to the requirements in part 23. Furthermore, the FAA is developing a change management plan that will include formal training for both FAA engineers and staff and industry designees.
“NATCA expressed concerns the FAA was relinquishing standardization and stated the FAA needed to articulate an expected minimum technology maturity level. The FAA’s process for reviewing applicant’s submissions to verify compliance with the safety standards will address NATCA’s concern regarding technology. This review process will not change from the way the FAA currently reviews an applicant’s regulatory compliance. One of the purposes of this rule is to provide greater flexibility to applicants in showing they meet the objectives of the safety standards, and thus “standardization” in the strictest sense goes against this purpose. Similarly, with respect to minimum technology level, another purpose of this rule is to spur innovation and technology adoption. Therefore, requiring a certain technology maturity level would contradict that purpose. “
Parsing the language of this employee group’s comments, it seems to be saying, somewhat simplistically, “we have applied check list standards in the past; there is a form and when the Part 23 applicant submits its materials, our job is to assure that all of the boxes are checked. Occasionally, especially with new technology, we tell the applicant to redo its numbers.” Performance-based criteria and industry-developed measures are new and different. The new regimen is more interactive and that work requires a different skill set. The union members do not like this change.
The eight months are needed to convince (compel, coalesce?) the field offices that the new Part 23 is the new standard; that it is not going away. Congress had to enact two bills to get the new Part 23 promulgated and now the battle moves outside of the Beltway. It is very possible that the streamlined process will assume Testudinian speed.