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Amendment Could Stifle Safety Regulations

Tue, May 10, 2011 — David Evans

Articles

A bill passed overwhelmingly by a vote of 223 to 196 contains a provision that could make it more difficult for the Federal Aviation Administration (FAA) to issue new safety regulations for the aviation industry.

Amendment 23 of the FAA Reauthorization and Reform Act of 2011 (H.R. 648) requires an analysis of how any proposed rules would affect the economy, employment, productivity, competitiveness and private markets. The amendment also requires that separate safety rules be written for the various segments of the industry. As such, the proviso flies in the face of the FAA’s “one level of safety” theology.

The amendment made it into the Reauthorization Act by a slender margin of 215 yea and 209 nay votes – a weak victory on the grounds that the FAA already must conduct cost-benefit studies on proposed regulations.

The amendment was sponsored by Rep. Bill Shuster (R-PA) and is flatly opposed by the FAA and by the National Transportation Safety Board (NTSB). According to a blunt FAA statement circulated on Capitol Hill before the Reathorization Act vote of 1 April, the amendment “enshrines in legislation a set of procedural hoops that could have the effect of slowing down rulemaking projects underway and in the future.”

The FAA suggestion that the amendment will “slow down” rulemaking sidesteps the existing problem – rulemaking already is a glacial process in which opponents of a rule have ample opportunity to delay needed safety initiatives.

NTSB Chairman Deborah Hersman said Shuster’s amendment “would add complexity to the rulemaking process” and could stifle several rulemaking projects in the FAA that are in response to the crash of a regional airliner near Buffalo, NY, that killed 50 people. A regulation to combat pilot fatigue is among the NTSB recommendations now under evaluation by the FAA. (See Aviation Safety Journal, February 2010, “General Industry Laxity Criticized in Wake of Colgan Air Crash” and October 2010, “Draft Guidance on Fatigue Evades Accountability”)

Shuster has denied that the amendment would affect any rulemaking already in progress. That may be so, but rulemaking already is such an agonizingly slow process that NTSB recommendations emanating from the Colgan Air crash at Buffalo in 2009 are not yet in the “notice of proposed rulemaking” stage.

Jeff Urbanchuk, a spokesman for Rep. Shuster, and officials from the passenger, cargo and nonscheduled airline industries, characterized the amendment as merely an effort to put into law the intent of an executive order issued by President Barack Obama in January 2011. That order directs federal agencies to make sure that the cost of regulations is fully assessed and, where possible, federal agencies should reduce the burden of regulations.

The presidential mandate makes no mention of assessing the impact of proposed regulations on the overall economy or private markets.

A representative of the Air Transport Association (ATA), the Washington DC lobbying group for the scheduled airlines, opined that the Shuster amendment is not broader than the president’s executive order. The economy and jobs “are exactly the kinds of issues he’s been talking about,” said the ATA’s Sharon Pinkerton.

Oakely Brooks, president of the National Air Carrier Association (NACA), said the FAA has not considered the cost to the nonscheduled airlines when drafting the pilot fatigue regulations. To date, the FAA has only published a non-binding draft advisory circular (AC). Even if issued as a final document, an AC lacks the power of a regulation, so Brooks seems rather exercised about an AC that is not enforceable and will not cost NACA member carriers one dime.

Kevin Kuwik, a spokesman for the families of people killed in the Buffalo crash, characterized the amendment as a “sneak attack” on the recommended fatigue regulations. “It muddies up the process on the front end and, worse, on the back end it gives them [the airlines] a chance to challenge it [pilot rest and duty regulations] in court.”

The Senate version of the FAA Reauthorization Act does not contain such an amendment. The House and Senate will have to meet in conference to negotiate the bills approved by each chamber.


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