More Than 18 Months to Prioritize Rulemaking Indicates a Low-Importance Effort

How to prioritize rulemaking projects is a new task which the Federal Aviation Administration (FAA) will assign to a committee of experts. This committee, known as the Aviation Rulemaking Advisory Committee (ARAC), will meet behind closed doors, its deliberations not open to the public, according to a 19 April announcement in the Federal Register.

For those wishing to participate in this effort, the FAA must receive the nomination by 9 May 2011.

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This new “Rulemaking Prioritization Working Group” is an outgrowth of another expert panel, the Future of Aviation Advisory Committee (FAAC), which was convened by the Department of Transportation (DOT). The FAAC recommended a process to consider safety, cost, harmonization and “other needs” in prioritizing rulemaking. (See Aviation Safety Journal, February 2011, “Safety Recommendations Fall Short”)

There is no indication as to when the “Rulemaking Prioritization Working Group” will convene or how often it will meet. The announcement does indicate the rulemaking program must be finalized by December 2012 – stately “progress” indeed. The Federal Register announcement states that members must “keep your management chain and those you may represent advised of working group activities and decisions to ensure the proposed technical solutions do not conflict with your sponsoring organization’s position …”.

In other words, if you are an aviation industry representative, do not get off the reservation, as it were, and propose anything truly different or radical from the status quo.

Charging a committee to develop a methodology — or worse, a computer model — to prioritize rulemaking projects is sure to delay and obfuscate needed changes.

Below are four ideas which do not need “massaging” by an advisory committee and are urgently needed:

Priority 1. The FAA is to give all “Most Wanted” safety recommendations issued by the National Transportation Safety Board (NTSB) the very highest priority for consideration and, more importantly, enactment. The “Most Wanted” recommendations address the regulatory gaps or needs identified and carefully evaluated by the members of the NTSB. Here is an already prioritized list, in which the history is one of foot-dragging and excuse-making from the FAA. Even more to the point, here are needs highlighted by the blood of injuries and death.

It is significant to note that the FAA does not invite NTSB participation in this working group effort at prioritization. The NTSB is an agency which has already prioritized its many recommendations, down from hundreds to seven on the “Most Wanted” list. These seven recommendations (e.g., reduce accidents and incidents caused by human fatique in the aviation industry) are all characterized by the NTSB as either red, for an unacceptable response, or yellow, for progressing slowly.

It is time for the FAA to accord reaction and action on these “Most Wanted” recommendations. Giving the response the force of regulation (requirements) would eliminate some of the worst gaps in FAA oversight.

Priority 2. In recent years, the FAA has issued a number of so-called “Special Conditions” covering new aircraft designs for which existing standards are either outdated or inapplicable. In some instances, more than a dozen special conditions have been issued for a new design. The regulations are clearly out-of-date and need to be upgraded/modernized. Also, many “Special Conditions” read suspiciously as if they have been written by the manufacturer affected, making the thoroughness and rigor of the “Special Conditions” suspect.

For priority 2: upgrade the certification regulations such that all extant “Special Conditions” are rendered unnecessary and redundant.

Priority 3. The FAA ordered the industry to review the safety of its fuel tank designs (this was well after certification, mind) and it provided a list of some 80 airworthiness directives (ADs) to eliminate potential ignition sources of the type that blew up TWA Flight 800 in 1996. These ADs have been issued in what can only be described as a slow drip, with the last half-dozen or so issued this year. This delayed issuance process flies in the face of the FAA’s professed fealty to safety. These ADs, when they are issued, contain words like “an unsafe condition exists justifying issuance of this AD”, so when the FAA has a tidy schedule of delayed release, there is a list in the agency of a known safety of flight hazard for which the corrective action has been delayed. One reason, no doubt. for the delayed publication is to minimize the industry’s apprehension of cost, since each AD-mandated corrective has a detailed accounting of compliance costs.

The flip side to all of this is that it might be convenient to obfuscate the total costs; delayed issue of ADs covering the same problem (in this case, fuel tank safety) means that the industry is denied a picture of the total amount of work involved and to be scheduled. All such linked ADs should be issued at the same time for the industry to fulfill them promptly and in a coordinated fashion.

All related ADs are not to be issued one at a time or two at a time or in small batches separated by months or even years. Issue them all at the same time.

Priority 4. The FAA is to evaluate non-binding publications foisted on the industry. Any publication, such as a Special Airworthiness Bulletin (SAIB) or Information for Operators (InFO), which contains the caveat “This is information only; recommendations aren’t mandatory” needs to be reviewed for appropriateness. Non-mandatory publications are an FAA exercise in “feel good oversight”. They have published something that is really toothless and can claim that whatever the problem might be, it has been resolved.

In some cases, the FAA has published a non-binding SAIB or other such meaningless document in lieu of an AD, which requires compliance. From 5 April of this year, here’s an SAIB on a subject which appears to require AD action:

“The airworthiness concern is not an unsafe condition [but] if not corrected, the incomplete weld in these fuel nozzles may lead to … eventual uncommanded in-flight shutdown of the engine.”

This surprise eventuality is not an unsafe condition? If not, the FAA has needlessly issued hundreds of ADs in recent years covering equivalent situations.

Furthermore, the NTSB has criticized the FAA for publishing non-binding advisory circulars when its recommendations called specifically for regulatory action. With justification, the NTSB seeks binding, non-voluntary responses.

These four priorities, in descending level of importance, would invigorate the FAA’s presently moribund rulemaking process. Will these recommendations be made by industry insiders appointed to the committee? One can always hope that the answer is yes, but there is a heavy sea-anchor of doubt. The last time the ARAC was given an important task – fuel tank safety – it concluded that filling the void spaces in fuel tanks with inert gas was too expensive and the technology did not exist. Yet committee documents showed that inerting would cost about 25 cents a ticket, and Boeing had already patented (but not deployed) an inerting system for airliners.

The sick joke inside the FAA is that ARAC stands for “All Rulemaking Activity Ceases”. Pending that null outcome, four ideas have been recommended for energizing and prioritizing the rulemaking process.