SMS future INDIVIDUATION and the RRTF’s SLUDGE removal

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With typical fanfare associated with this White House, President Trump signed Executive Order 13771 on January 30, 2017. That action was dubbed the “two-for-one” rule, but it also required the DOT/FAA to initiate the Regulatory Reform Task Force (RRTF). Sent to an ARAC committee, its charter was set “to evaluate existing regulations, and make recommendations for their repeal, replacement, or modification.” The composition of this group was the basis for seeking input/ assistance from entities significantly affected by its regulations.

This ARAC produced a long list of recommendations for the “repeal, replacement or modification”—a 150 page paper with about 500 recommended regulations to be headed for the rule writers’ AXE, SCALPEL and SCREW DRIVER plus the more familiar PEN.




Those recommendations have been subsequently amended and on September 14, 2017 were one of the topics of a very long ARAC steering committee.

Recently, a former Administrator of the White House Office of Information and Regulatory Affairs under Barack Obama and currently the Robert Walmsley University Professor at Harvard, Cass R. Sunstein, has written an intriguing article, entitled:

Deregulation of Air-Safety Rules Can Be a Model


The professor, obviously based on some very extensive review of the FAA proposed regulations during his 4 years at OIRA, makes the following relevant points on the mission of the FAA’s RRTF and the example which it can establish for other agencies facing this task:

  • “Air safety has been a sensational success story. In the U.S., commercial accidents have been at very low levels for years. In 2016, more than 40,000 Americans died in motor vehicle accidents.”
  • “Market forces are a big reason. A crash is international news, and it’s horrible for business. Airlines have every incentive to ensure safety.”
  • If the airline industry feels overburdened by regulation (and it does), it is because the government mandates precautions, in the form of requirements that may not do a lot of good, but that are based on the idea of ‘better safe than sorry.’”
  • “Though it has not made the list public yet, the Aviation Rulemaking Advisory Committee, which advises the FAA, is finalizing its recommendations to eliminate unjustified or outmoded regulations. One of its big targets is what behavioral economist Richard Thaler calls ‘sludge”’– burdensome reporting and paperwork requirements that impose real costs and do no good.
    • “One example is the FAA’s highly prescriptive training requirements — directing, for example, that before co-pilots can fly commercial passengers, they must have 1,500 hours of flight time. Another example is the ground testing that the government has long mandated to ascertain whether airplanes have structural integrity, and whether they can continue to survive a lot of flights (“fatigue tolerance”).

    The committee is calling for cutting the 1,500-hour minimum requirement partly in order to reduce pilot shortages in rural areas. The panel also recommends a significant increase in flexibility: Instead of mandating ground tests, the government should allow airlines to use engineering analysis, inspections of older planes and computer simulations.”

    Excellent analysis and the RRTF’s work product has identified a lot of sludge. The future actions in removing this sludge may well clean the system which has been clogged by these outmoded and unjustified sections which are found in the FARs.

    Perhaps, Professor Sunstein was not aware of the recent addition of the certificate holder’ individuation brought by the SMS process. While this innovative safety process is known for its data accumulation, collaborative and cooperative approach and its emphasis on being proactive, over time the accumulated  SMS-designed solutions are establishing an airline-specific set of operating parameters. This possible future record of individual standards reflects a long held view by many regulators that the design of the regulatory structure should reflect the specifics of the operator

    • The focus of a sophisticated, well established carrier might be on designing a new, expensive (but cost/benefit justified) more omnipresent computer system which will be able to capture a level of granularity which will be more likely to define small fissures earlier.
    • At the same time, an airline which has exhibited pilot skill problems may require SMS measures more demanding training standards than required by the FARs.
    • A certificate flying in the Caribbean might have to adhere to different MX standards than the same fleet in Alaska.

    While SMS can allow this “individualistic” regime for regulation, before any such formal transition, the FAA must enhance the training of the relevant staff and communication between and among the individuals responsible for exercising these judgments. Interestingly, Europe refers to this trend as “performance based regulations.

    To return to the RRTF’s task and Professor Sunstein’s sludge, the scrubbing of the FARs to a set of rules that are relevant, realistic and really required would appear to be a most worthwhile endeavor in preparation for this new regulatory regime.


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