Congressional Mandate Deadlines
Priority Should Be Specified
ARSA has implored that Congress not crucify Part 145 certificate holders based on the following bizarre Congressional/ TSA/ FAA history:
Recent FAA authorization laws have directed the agency to undertake rulemakings to extend drug and alcohol (D&A) testing to foreign repair stations and require pre-employment background investigations for all repair station employees performing safety-sensitive functions on air carrier aircraft. For various reasons, including the complexity of the issues and potential impact on thousands of small businesses, the FAA has yet to finalize the rules.
No doubt that there is great merit to their plea and hopefully Congress will heed this wise request.
Unfortunately, the D&A requirement is not the only deadline, priority requirement, tying action A with action B or other creative Congressional directives (add to this list, hundreds of requests which were not enacted, but their letters are “mandatory” in tone. These “informal” requests are assigned to someone on the Member’s staff and that person, invoking the wrath of the boss, berate FAA staff on a weekly basis).
The FAA Aviation Safety Organization, the target of most of these demands, maintains a long list of regulatory projects. There are periodic meetings of the team’s senior staff at which the progress of every rule drafting assignment is reviewed. Reports of delays are not well received and the individual responsible for completion hears directly from AVS-1.
Also at these convocations, the priorities of each prospective new rules are scrutinized under a microscope. For example, it is not uncommon for Project #22 is relegated to #45 because of strong policy concerns up and down. At the upper end of this regulatory priority roster, the projects are rules which have a high safety importance or immediacy.
The FAA’s parent organization overseas these tasks and their order. The DOT publishes, for all to see, a “Pending Section 610 Reviews” list and a Report on DOT Significant Rulemakings. Those public resources reveal what priority is assigned to the leading FAA NPRM assignments.
The FAA staff is not unlimited. When Congress adds 5 or 10 new regulatory tasks, there is no expansion of the experts who craft these complex documents. (Oh by the way, the folks who do this work are frequently subject to RIFs since their tasks are considered “support” work rather than the career employees who are considered to be line workers). The people involved in developing a final NPRM are the safety technicians (who are considered good at drafting), lawyers and economists/ accountants/ policy positions (responsible for the multiple tests on any proposal by Congress and OMB/OIRA). It is a labor intensive business.
When Representative A or Senator B creates the type of requirement, such as the one about which ARSA complains, that imposition is not made in a vacuum. A more demanding the deadline creates a conflict with high priority safety projects. It is a zero sum game. Does Representative A’s mandate move existing Project #22 down to #23? If Senator B thinks that his/her project is more important than an NPRM mandated by another legislatively dictated deadline?
Rather than just bemoan this exercise of Congress’ power, how about a solution? Maybe one that adds to TRANSPARENCY, the political word du jour? Here’s a proposed rule:
IF A MEMBER OF CONGRESS PROPOSES A MANDATE DEADLINE, (S)HE MUST SPECIFY WHERE THE NEW NPRM FALLS WITHIN THE DOT PUBLISHED LIST OF PRIORITIES.
If the elected representative of the people is sufficiently omniscient to dictate some time parameter for a regulatory project, the bill must designate what existing projects precede and follow his/her new rule.
The blind insertion of a new project into the FAA’s list of regulatory projects is not an expert exercise of legislative initiative. While attempting to do good, the sponsor is allowed to be ignorant of what bad will result. The prioritization of the proposed rule among other NPRMs would require some hard policy choices by the law’s proponents and would create some valuable transparency!
Not betting that it will happen, but highly confident that this transparent prioritization is the right policy.