Failing the Test of Transparency

Before the end of this year, the Federal Aviation Administration (FAA) hopes to have a new proposed regulation on flight and duty time posted for public comment. “Scientifically based” rules accounting for sleep debt, circadian rhythm disruption and other factors are badly needed.

Not only are updated rules one of the National Transportation Safety Board’s “Most Wanted” items, the new FAA Administrator, Randy Babbitt, recognizes that outdated regulations here are a “safety hot button.”

“As I’d think we all agree,” Babbitt said recently, “this comes up in accident investigation more often than it should.”

“My goal here is to make this one of those things that used to happen in aviation,” he vowed.

To help craft the Notice of Proposed Rulemaking (NPRM), Babbitt convened what’s called an Aviation Rulemaking Committee (ARC) to recommend new rules. He gave this expert panel 45 days last summer to deliberate and submit recommendations to the FAA. In turn, the FAA will take the ARC report and use it to craft the NPRM, which will be scrubbed by the Office of Management and Budget before it’s posted on the Federal Register in December for public comment.

After a comment period of, say, about a year, the FAA will then publish a final rule, and that will have an effective date of about 2012. No wonder the rulemaking process is dubbed “deliberative.”

Obviously, the ARC report has a considerable influence in shaping the proposed rule.

The term “ARC” raises an important question. How is it different from “ARAC,” which is short for Aviation Rulemaking Advisory Committee. Over the years, the FAA has convened all manner of ARACs but this is the first time in at least a decade where the FAA has resorted to the ARC process.

Why?

Under the umbrella of ARC, a lot happens out of public view. Here is an explanation from an FAA official:

“An ARAC is covered by the Federal Advisory Committee Act, meaning that we have to publish a notice so the public has an opportunity to say that they want to be involved. We don’t have to include everyone, but the opportunity has to be made public. The 1996 Reauthorization Act gave the FAA Administrator the authority to establish an ARC, a small group of experts to give the FAA advice on a specific subject. The ARC is a deliberative process so the ARC recommendations on pilot fatigue would not be released under FOIA [Freedom of Information Ac]. We also do not have to open membership up to the public.”

There you have it: the ARC process is the very opposite of the “transparency” called for by the Obama administration.

The FAA official assures that the ARC recommendations will be made public when the proposed flight time/duty time regulation is released for public comment.

Making the ARC’s final report available is not the same as observing the process by which the report is developed (the options not considered, the horse trading to yield compromise measures, and so forth).

I know because I observed two ARAC deliberations in the late 90s. One was an ARAC dealing with fuel tank inerting (an outgrowth of the TWA Flight 800 disaster where the center fuel tank exploded). The industry-dominated ARAC concluded that inerting fuel tanks was too expensive, although the ARAC had information that technology could be installed for a cost of about 25¢ per passenger ticket.

The other was an ARAC on electrical wiring (an outgrowth of the Swissair Flight 111 disaster, where arcing led to loss of the airplane). Again, the industry dominated group denied there was a problem and fought tough wiring inspection protocols.

There was a stillborn effort in 2001 to strengthen the ARAC process. While full ARAC meetings were required to be held in public view, the working group meetings were not. The working groups were comprised of industry foot soldiers doing the detailed work crafting policy and recommendations.

A senior FAA official cautioned that opening the working groups to public scrutiny would have a “chilling effect” on the candor characterizing the discussions.

Chris Witkowski, representing the Association of Flight Attendants, was unconvinced. “I fail to see why there isn’t a more transparent process. The openness of the ARAC (i.e., the full committee) serves as a ploy to justify the closed deliberations of the working groups,” he charged.

Basically, the ARC process is the ARAC working group process writ large.

Which bears directly on its makeup and its recommendations. Of the 18 members of the ARC, one was from the FAA. Eight members were from pilots unions and nine individuals represented airlines and operators.

The NTSB, which wants the flight/duty time regulations updated, did not have a seat at the table. There was not a single outside expert on the ARC, despite the fact that there are any number of esteemed specialists in industrial scheduling and sleep that could have been called in to help craft new regulations based on the best “scientifically based” research. Instead, a process of “incestuous amplification” was at work – industry insiders without a single representative likely to say, “Wait a minute.”

The issue of pilots commuting to their duty stations, for example, was not addressed by the ARC. Roger Cohen, President of the Regional Airline Association, which had three members on the ARC, said, “The ARC [report] does not address commuting, so the rulemaking may not address commuting either.” With three subordinates on the ARC, Cohen should know. The status quo – airlines expect pilots to report for work rested and ready, the pilots unions not willing to question commutes over multiple states and/or time zones – seems untouched.

As one airline observer noted:

“These ARC deliberations could have a drastic impact upon a wide cross-section of the commuting flight and cabin crew community. If taken towards any logical conclusions (i.e., commuting is a fatigue factor and needs to be addressed and mitigated), then the specter of crew basing will arise … There is undoubtedly a thick veneer of vested interest protecting the status quo.”

Babbitt told Congress, “I am pleased to report to you that the ARC met its charge and that we are currently reviewing its recommendations.” He went on to wax eloquent about the ARC’s work, “Although our review is ongoing, I would like to share with you how pleased I am with the work that we accomplished in the ARC.”

This declaration of confidence in an industry-dominated body meeting out of public view has to be taken on faith, and a whole lot of skepticism.