The Scorecard on FAA Rulemakings in 2015

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As the calendar year 2015 starts to close, it is time to review the FAA’s Regulatory Agenda as reported in the July 2015 Report on DOT Significant Rulemakings, updated in August (the most recent inventory of pending, prioritized rulemaking projects). From such a review, it can be determined where aviation safety’s regulatory progress has moved and what 2016 holds for new rules. This is an exercise which was done here in 2014 and the lack of progress is notable (at least 7 of the projects listed there are still being considered).

Two points must be made as a preface to this inventory analysis of the nineteen projects on the DOT Report:

FAA DOT OMB

  • Congress has the constitutional powers to enact laws and to set deadlines. In fact they passed nine statutes, which are included in the Report, which compel the FAA to issue final rules. NONE OF THOSE DATES HAVE BEEN MET. Three of the Congressionally driven NPRMs date from 2012. Of that lot the best progress is an expected final rule in 2016 (the actual work began in 2009, before the mandate) and one of these Hill favorites lists SHOWS NO ACTIVITY at all. 

→ This track record really emphasizes how Congressional “calling out” a specific new regulation really does not advance it. The reality is that the FAA’s total set of regulatory assignments, many more than these highlighted 19, is already long and includes several tasks which may have greater safety impacts. 

[Oh by the way, the OST list includes nine modal administrations and a total of 97 rulemakings and 102 pages. The FAA has 19 on the Report and 1/5 of the pages. The next highest “bad boy” is FHWA with 13 items.]

Here are some of the high and low lights arrayed in the sequence set by the DOT:

1. Airport Safety Management System—SMS, ICAO’s and the FAA’s most advanced safety tool has been implemented for air carriers and the progress has been remarkable. The parallel project for airports started in 2008 and has been sitting in OST for two years. See above preface point about delays!

2. Student Pilot Application Requirements (formerly Photo Requirements for Pilot Certificates)—This rulemaking would respond the Intelligence Reform and Terrorism Prevention Act and of the FAA Modernization and Reform Act of 2012. Its intent is to improve security vetting by the Transportation Security Administration of student pilot applicants prior to certificate issuance. The project began in 2008 and it sits in OST.

3. Operation and Certification of Small Unmanned Aircraft Systems—Never has a delay in rulemaking received more publicity than that generated by Drone Nation on the unacceptable delay associated with this NPRM (perhaps their revilement expressed to its substance was as vociferous). The Administrator has promised a release soon, but the DOT Report, updated in August, promises nothing. Remember, after the FAA staff completes reading the overstuffed docket, that OST and OMB will review, possibly re-review and re-re-review, the final rule.

4. Prohibition Against Certain Flights Within the Territory and Airspace of Afghanistan—No action, pending.

5. Requirement for Wildlife Assessments at Certificated Airports—A Secretarial initiative and a second airport NPRM with little movement for 5 years.

6. Regulation Of Flight Operations Conducted By Alaska Guide Pilots—A statutorily mandated project with no progress.

7. Air Carrier Maintenance Training Program—A statutorily mandated project with no progress.

8. Pilot Professional Development—The Airline Safety and Federal Aviation Administration Act of 2010 requires that air carriers establish or modify training programs to address mentoring, leadership and professional development of flight crewmembers in Part 121 operations. Has been sitting in the Office of the DOT Deputy Secretary since February 2015.

9. Slot Management and Transparency for LaGuardia Airport, John F. Kennedy International Airport, and Newark Liberty International Airport—A housekeeping project which has had its scheduled revised three times; comments closed in April, 2015.

10. Drug and Alcohol Testing of Certain Maintenance Provider Employees Located Outside of the United States—Another action mandated by Congress, started in 2013, but “N/A” is the cited reason for delay. In reality, extraterritorial application of drug testing rules is a seemingly insurmountable bar.

11—12. Not worth comments.

13. Pilot Records Database (HR 5900)—Another Congressional requirement, well-intended, but with substantial privacy issues should consume a lot of time after comments are received based on the complex legal issues.

14—16. Not worth comments.

17. Medical Self-Evaluation for Certain Noncommercial Operations in Lieu of Airman Medical Certification—A very contentious NPRM, aggressively pushed by AOPA and mildly opposed by NTSB. It appears to be stuck at OST.

18. Helicopter Air Ambulance Pilot Training and Operational Requirements (HAA II) (FAA Reauthorization)—Another statutory driven project and it is scheduled to be published within 10 days of the deadline.

19. Part 23 Reorganization—Much legislative oversight on this revolutionary revision of the Small Aircraft Certification. The DOT scoreboard says that the NPRM should be issued this month although there has been testimony that the FAA lawyers are subjecting the proposal to microscopic scrutiny.

Since not one of these priority NPRMs has been promulgated, clearly the grade for the 2015 agenda performance is disappointing, but that mark must be shared by DOT OST, OMB OIRA, FAA and the Congress.

If the predicted dates for publication are to be trusted, 2016 should have a lot of dockets closed, but past history is a basis for some doubt. Also the Congressional wish list is likely to be increased substantially since the FAA Reauthorization MUST be passed in the 1st Q of 2016.

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