Consistency is something which the aviation has sought for years from the FAA. In fact, in response, to industry concerns and a Congressional mandate, the Administrator and Aviation Safety have been working to incorporate that concept within the agency’s culture particularly as it applies to the interpretation and application of the FARs. That is an immense challenge and many have doubted whether it could be done effectively.
An Aviation Rulemaking Committee was convened with industry to get their guidance as to how “consistency” might be inoculated into the consciousness of the career staff who administer the 1,500 pages of regulation. Below is a recount of one trail in an effort to attain that goal.
Before examining that record, it might be useful to examine the meaning of the word “consistency.” By definition, the word is capable of a single denotation. However, when the connotation is to be scrutinized, the above quotes from Aristotle and Emerson suggest that there may be variance in the ways to apply this word. The context of its application may add to some differences [variable consistency, however, qualifies as an oxymoron].
Read this tortuous legislative and regulatory crusade for consistency; at the end, cast a vote of whether the Aristotelian or Emersonian connotation is appropriate base on this FAA odyssey.
On January 3, 2012, the Congress passed the FAA Modernization and Reform Act of 2012. One section thereof (§313) stated:
“Consistency of regulatory interpretation
(a) Establishment of advisory panel not later than 90 days after the date of enactment of this Act, the Administrator of the Federal Aviation Administration shall establish an advisory panel comprised of both Government and industry representatives to—
(1) review the October 2010 report by the Government Accountability Office on certification and approval processes (GAO–11–14); and
(2) develop recommendations to address the findings in the report and other concerns raised by interested parties, including representatives of the aviation industry.
(b) Matters To be considered. The advisory panel shall—
(1) determine the root causes of inconsistent interpretation of regulations by the Administration’s Flight Standards Service and Aircraft Certification Service;
(2) develop recommendations to improve the consistency of interpreting regulations by the Administration’s Flight Standards Service and Aircraft Certification Service; and
(3) develop recommendations to improve communications between the Administration’s Flight Standards Service and Aircraft Certification Service and applicants and certificate and approval holders for the identification and resolution of potentially adverse issues in an expeditious and fair manner.
(c) Report to Congress not later than 1 year after the date of enactment of this Act, the Administrator shall transmit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report on the findings of the advisory panel, together with an explanation of how the Administrator will implement the recommendations of the advisory panel and measure the effectiveness of the recommendations.”
The Administrator chartered the CONSISTENCY OF REGULATORY INTERPRETATION ARC on April 30, 2012. Seven months later, on November 28, 2012 the CRI ARC delivered an 128 page report. A major recommendation was that the FAA should create a Regulatory Consistency Communications Board (RCCB). The first line of the recommendation included this critical finding and justification for this new Board:
“During its review of the Survey results, the ARC discovered that nearly 50 percent of respondents cited “[i]ndustry fear of retaliation” as the key factor hindering the Consistency and Standardization Initiative (CSI) efforts. Industry respondents also attributed slow or adverse regulatory decisions at the field level to a fear of retaliation within the FAA.
The ARC realized fear of retaliation or personal liability could only be alleviated if the decision in question or dispute was reviewed by an entity without operational or institutional authority over either party. After considering a number of different options, the ARC decided that a centralized decision support mechanism to address regulatory questions or disputes could reduce inconsistent regulatory decisions, remove fear of retaliation and get inspectors and industry stakeholders back to their primary responsibilities in the shortest time possible. Under this concept, the FAA would establish an RCCB.”
The difficulty of creating consistency is a daunting task as explained in this past post:
“The FAA faces a very difficult challenge. It must apply, on a consistent basis, a statute with many undefined terms and over 1,000 pages of the Code Federal Regulations, which are amended periodically.
The FAA organization, charged with enforcing the statutes and rules, starts with a single Associate Administrator, follows a pyramidal organization down through a large headquarters organization through layers of regional offices down through FSDOs, ACOs, MIDOs, CHDOs and a host of other field offices and hits the geographically dispersed front line of principals, inspectors and a host of individuals “empowered” to interpret the rules. Add to that mix, hundreds of thousands of handbooks, orders, ADs, ACs and many, many formal/informal documents.
An added level of complexity derives from the diversity of the regulated-air carriers, airmen, repair stations, training institutions, etc.; fixed wing, rotorcraft, powerplants, airframes, and avionics; large/complex, small/simple; operating or located in incredibly diverse environment/locations; etc. The operational circumstances of these certificate holders and the associated regulations require exquisite judgment to assure equivalent compliance by a huge company like United Continental and a Mom-and-Pop air taxi operation in Alaska.”
On July 19, 2013 Administrator Huerta sent the Report to Congress as requested by §313(c). That 128 page document repeated the RCCB concept, but omitted the CRI ARC’s concern about “retaliation” (p.11-12). The next step in this attenuated path from conception to implementation was a Detailed Implementation Plan (January 15,2015); this 22 page description of the tasks ahead for all of the CRI “to do’s” continued the promise of a RCCB (p.12-13). Here is the timetable established there:
In the interim, the FAA unveiled a program labeled Consistency & Standardization Initiative. Its mission is stated in this introduction: “When an AVS action is questioned or disputed, decision-makers at every level of the AVS management chain are expected to thoroughly review the matter and be accountable for the answers provided.” CSI offered the following brochure to inform stakeholders interested in invoking this procedure and to serve as form to initiate the “complaint.”
Finally, on July 28, 2016 the FAA circulated ORDER AFS 8000.RCCB for comments from the public. It is the order establishing the RCCB and appeared to have been promised by March 31, 2015.
There is no mention of the CRI ARC’s concern about retaliation. For example, there is no admonishment to staff that the entity seeking the Review should not be disclosed to the field. There is no policy pronouncement that the “facts” should be genericized so as to protect the certificate holder who filed the form. There is no requirement that the names of the individuals involved be redacted. The draft order does not even clarify that when the RCCB proceeding was internally generated, the FAA employees, who seek such resolution, should be protected.
Unlike under the Whistleblower statutes, there is no specific prohibition of adverse action. For example, a subordinate might invoke the RCCB in a disagreement with his/her boss; the superior may feel embarrassed by the Board’s determination that the supervisor’s interpretation was wrong and may make life difficult for the “insubordinate” thereafter.
It runs 10 pages establishing the Board’s purpose, composition, procedures, processes, points of contacts, SMEs, attendance rules, submission rules and even a form.
After four years of development, the RCCB’s order includes a confusing, if not disappointing, statement:
“Note: If the FAA is already actively working an issue submitted to the RCCB, it may not be accepted by the RCCB.
2.3 Other FAA Processes.
The RCCB is not a replacement for other processes currently available to internal and external stakeholders. The RCCB will not accept submissions that should be directed to other FAA programs, processes, or initiatives for action. On a time permitting basis, the RCCB may recommend an appropriate path for resolution for these issues. Examples include:
• recommendations to pursue a petition for exemption, petition for rulemaking,
• request for legal interpretation,
• FAA hotline report, or
• submissions to the Consistency and Standardization Initiative,
• Whistleblower Program, or
• the FSIMS Librarian.
The RCCB will not track the outcome of issues referred to these programs.”
[emphasis added and long sentence reorganized to highlight key words.]
What may be considered by the RCCB appears only to be variances within the FAA without any current external concerns and little else.
Draft Order 8900.RCCB does not address the CRI ARC’s about retaliation and may not provide an open mechanism to attain consistency.
We are what we repeatedly do. Excellence, then, is not an act, but a habit. Aristotle
A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. Emerson
Vote in the comments section below by just typing which name most closely resembles this history.
Request for Comments: Regulatory Consistency Communication Board (RCCB)Share this article: