Hot Air Balloon crash as possible catalyst for reducing regulatory delays—RIA from OMB to CBO?

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Rep. Doggett upset with FAA delay in hot air balloon pilot medical rule

Source of Delay: Statutorily required Regulatory Impact Analysis

GWU Law Professor: from OMB/ORIA RIA to CBO review BEFORE vote 

 

A tragic hot air balloon crash makes a case for requiring Congress to perform a telling Regulatory Impact Analysis BEFORE a bill is enacted. Rep. Doggett passed the Commercial Balloon Pilot Safety Act in 2018, but the FAA was not able to process this mandate as quickly as one might anticipate.[1] Scrutiny of the regulatory documents shows the burden imposed on the FAA and then OMB/OIRA. Dr. Jerry Ellig proposed that this rigorous analysis be advanced to the time BEFORE the bill is enacted and assign the Congressional Budget Office, an organization already charged with assessing aspects of proposals. Knowing exactly what the Members are voting for before they are called upon to say AYE or NAY makes immense sense.

Senate vote

 

On November 2, 2021⊕ FAA Proposes Medical Requirements for Commercial Hot-Air Balloon Pilots was issued an FAA Notice of Proposed Rulemaking (NPRM) as  mandated by section 318 (“Commercial Balloon Pilot Safety Act of ⊗) (CBPSA)of Public Law 115-254, the FAA Reauthorization Act of 2018. The FAA announced that it will soon publish a Notice of Proposed Rulemaking (NPRM) in the Federal Register to require that pilots of commercial hot air balloon flights hold a second class medical certificate.

The CBPSA was an enactment by Congress in response to a tragic 2016 ⊗hot air balloon crash in Lockhart, TX. The operative text (55 words) of that bill reads as follows:

 

(a) IN GENERAL.—Not later than 180 days after the 10 date of the enactment of this Act, the Administrator the Federal Aviation Administration shall revise part  61.3(c) of title 14, Code of Federal Regulations (relating  to medical certificates), to apply to operators of air balloons to the same extent such regulations apply to operators of other aircraft.

Rep. Doggett introduced his reformation of medically disqualified pilots from flying hot air balloons on October 24, 2017;⊕ not until October 5, 2018,⊕ was CBPSA and its companion legislation enacted.

In response to the 2021 NPRM, Rep. Doggett, several of his colleagues on both sides of the aisle and on both sides of the Hill and many of the victim family members expressed frustration with the time consumed by the FAA to issue a proposed regulation’s slow gestation within the FAA. In essence, they said “we told you what to write and it took you so long to get it into regulatory language?!!?

In fact, the draft rules required more precise language and amendments/additions to a number of FARs. The real delay is not the careful draftsmanship of the new Part 61 and 68 but the pages (p. 27-60) devoted to the Regulatory Notices and Analyses:

I. Regulatory Notices and Analyses Summary of Benefits and Costs of this Rule

 a. Regulatory Impact Analysis

b.Regulatory Flexibility Act

II Alternatives Considered to Minimize any Significant Economic Impact on Small Entities

      1. International Trade Impact Assessment
      2. Unfunded Mandates Assessment
      3. Paperwork Reduction Act
      4. International Compatibility
      5. Executive Order Determination
      6. Executive Order 13132, Federalism
      7.   Executive Order 13211, Regulations that Significantly Affect Energy Supply, Distribution, or Use
      8. Executive Order 13609, International Cooperation

All of these are REQUIRED by a number of statutes passed by Congress under the rational that rules should not be allowed on the streets without all of these essential public policy sieves being administered by the FAA/DOT and then OMB’s OIRA. Those complaining about missed deadlines ignore that the same folks, the legislators MANDATED THOSE DELAYS.

A noted administrative law scholar, Dr. Jerry Ellig (deceased), observed this problem. Dr. Ellig was a research professor at The George Washington University Regulatory Studies Center. His research focused on regulatory impact analysis,Dr. Ellig regulation of network industries, and performance management in government. A paper that he wrote proposed that the Regulatory Impact Analysis be performed by the Congressional Budget Office BEFORE the bills are passed.

Ellig precis“Executive branch regulatory agencies in the United States are required to conduct regulatory impact analysis before issuing regulations, and statutes sometimes require agencies to conduct some economic analysis. But when Congress considers legislation that mandates prescriptive regulations, legislators are under no obligation to conduct or even consider impact analysis… Given that major regulations are often required by statute, we conclude that regulatory legislation should be subject to the same kinds of impact analysis that US presidents have required regulatory agencies to conduct for almost four decades. Congress could develop this capability by creating a regulatory analysis division of the Congressional Budget Office (CBO) to evaluate the social benefits and costs of bills, similar to the way CBO scores the federal budgetary consequences of bills.

 

Regulatory Wave which OMP OIRA must process

 


FAA to make hot air balloon safety changes 5 years after Lockhart crash

Posted: Nov 2, 2021 / 09:56 PM CDT Updated: Nov 3, 2021 / 12:06 AM CDT

CRASH SITE IMAGES

 

AUSTIN (KXAN) — The Federal Aviation Administration took the first step towards increasing safety requirements for hot air balloon pilots, in response to a deadly crash near Lockhart in 2016.

Sixteen people, including the balloon pilot, were killed in what would become the deadliest crash in U.S. history. An investigation by the National Transportation Safety Board (NTSB) found the pilot was “as impaired as a drunk driver,” after taking prescription medications, when he flew the balloon into a power line.

Two years later, Congress passed a law to require a specific kind of medical license for commercial balloon pilots, in an attempt to provide more accountability for pilots and prevent these kinds of crashes.

“We want to be sure that each of those operators does not have a long history of drug and alcohol abuse that has happened in both the Lockhart and the Albuquerque tragedies,” said U.S. Representative Lloyd Doggett.

Rep. Doggett

The Austin lawmaker authored that legislation and said he was frustrated to watch the FAA — which is tasked with crafting these rules and implementing them — move slowly.

“I think they drug this out just about as long as they could,” he said.

He said he was heartbroken to see more lives lost in a deadly crash earlier this year in Albuquerque, New Mexico. According to a toxicology report, the pilot in this incident showed the pilot had THC and cocaine in his system, at the time his balloon hit a power line. An FAA spokesperson told KXAN this summer that this pilot did have a medical certification.

On Tuesday, the agency proposed the rule that would require these types of certifications. In a statement, a spokesperson explained they will file the proposal with the Federal Register sometime in November. Then, they will open a 60-day public comment period to get feedback.

Doggett said they could consider adding additional safety recommendations into the proposed rule. His office plans to submit comments.

Once the FAA reviews these comments, the agency will formalize the final rule and publish it.

In a statement, the FAA Administrator Steve Dickson said, “Balloon pilots are responsible for the safety of their passengers… This proposed rule would ensure that balloon pilots meet the same medical requirements as pilots of other commercial aircraft.” 

When Patricia Morgan heard the news, she immediately became emotional. She lost both her daughter and granddaughter in the 2016 crash.

“This has been heartbreaking for all of us who have fought so hard to get this done,” she said, through tears.

She said she’s been contacting lawmakers and government officials about the change for years.

We don’t want others to have to sacrifice their children or sacrifice their lives because of laws that are not put into place,” she said.

[1] Summarizing The Variety Of News On The Texas Hot-Air Balloon Accident; Balloon Industry Group Seeks To Improve Is Aviation Safety; Balloon Federation Of America, With FAA’s Blessing, Establishes “Envelope Of Safety” Accreditation Program; Medical Certificates For Balloon Pilots May Be Worthwhile; FAA- It’s Time To Follow Chairman Sumwalt’s Balloon Pilot Medical Call; Is It Time For The FAA To Issue A Hot Air Balloon Pilot Medical NPRM?

Lockhart crash victims



 

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1 Comment on "Hot Air Balloon crash as possible catalyst for reducing regulatory delays—RIA from OMB to CBO?"

  1. This is another example of spending a tremendous amount of resources on something that will not pay off, seriously get our priorities straight there are so many more important issues facing aviation do not waste our limited resources.

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