House Panel Grills FAA Chief Over Implementation of Congressional Directives
Yesterday, the House Aviation Subcommittee got an update from the Administrator of the Federal Aviation Administration on the status of the FAA’s implementation of the last two aviation safety laws.
Background: In October 2018, Congress enacted a five-year FAA reauthorization bill (Public Law 115-254). At the time, ETW estimated that the law required at least 18 new regulations to be issued and commissioned at least 119 studies and reports to be submitted to Congress. It was obvious that there was no way that the FAA was going to meet all of those deadlines, many of which were unrealistic (especially in combination with one another).
Then, ten months ago, Congress enacted this 2,124-page package of at least 65 different bills, one of which was an update to the 2018 FAA authorization to order changes in aircraft safety certification procedures judged necessary after the Boeing 737 MAX crashes and subsequent investigations. Division V of that package (Public Law 116-260) was the certification bill, and the “V” was the 22nd letter of the alphabet, not the fifth Roman numeral.
While this hearing was billed solely as a look at implementation of the 2020 certification reform bill, there was also significant discussion of the 2018 reauthorization law (because the committee doesn’t get the Administrator on the spot to answer questions directly very often).
Indeed, the top news that came out of the hearing related to mandates from the 2018 reauthorization law, not the certification law. Section 335 of the 2018 law required the FAA, “Not later than 30 days after the date of enactment of this Act,” to “modify” the 1994 final flight attendant rest period rule so as to give flight attendants a minimum of 10 uninterrupted hours of rest after 14 on-duty hours.
30 days after enactment meant a deadline of November 5, 2018. But that deadline came and went, and almost three years went by after that, without the FAA fulfilling the requirement and modifying the rule. The reason: according to Dickson, it was because section 335 did not say anything like “notwithstanding the Administrative Procedure Act of 1946.” The APA requires a cumbersome and time-consuming process for writing regulations (see this description), and unless Congress specifically waives the APA, changes to an existing final rule have to undergo the same cumbersome process.
Part of the APA process is giving the public several opportunities to comment, first on whether or not a rule should be written or changed at all, and then later on, to comment on the specifics of a proposed rule. Then the federal agency is supposed to read all the comments and take them seriously. This was easy enough to do when rules were obscure and everyone used snail-mail, but now that comments can be submitted electronically, the APA comment process can draw the equivalent of mass mailing campaigns.
In the case of the flight attendant rest rule, the FAA issued a request for comment on the idea of issuing a new rule in September 2019, with comments due by September 12, 2019. (It only received 216 comments, which means it didn’t get AstroTurfed with automated electronic comments like some environmental rules.) But there the matter sat for almost two more years.
Finally, perhaps knowing that Democrats were going to berate Administrator Dickson at this hearing on the lack of progress, immediately before yesterday’s hearing, the FAA issued the proposed rule on flight attendant rest. Comments will be due at Christmas, and then a final rule can be issued a few weeks or months later.
T&I chairman Peter DeFazio (D-OR) suggested that the APA be amended so that rules to improve health and safety be expedited.
Another mandate from the 2018 law that featured prominently in the hearing was section 336, which required that, by November 2019, the FAA issue an “order” that all new aircraft manufactured for delivery to a U.S. passenger airline have a secondary cockpit barrier. Dickson told Rep. Andre Carson (D-IN) that the APA treated “orders” like rules, and that without an APA waiver, they had to first make sure that there was an objective scientific basis to issue the order, so the FAA set up a rulemaking advisory committee last year to get that level of technical detail so they could inform their rulemaking process.
Overall, with regards to the 2018 law, Dickson told the committee that the law had given the FAA about 300 separate mandates, and that 191 of them had been accomplished. He said that about one-fourth of the remaining mandates were regulations that were stuck in the APA comment-review period.
Switching to the stated purpose of the hearing, while the 2020 law made many specific policy changes, the biggest objective was to change the culture at the FAA, which had become too deferential to (and reliant on) manufacturers, which in this case mostly means Boeing. Dickson said at the hearing that “The FAA’s relationship with manufacturers is evolving. We are prioritizing oversight of manufacturers and working to focus that oversight on safety critical areas. We are delegating fewer responsibilities and demanding more transparency from them, and evaluating key assumptions prior to delegating functions in certain areas. While we continue to value their technical expertise, we are also committed to enforcing the highest safety standards for the manufacturers that we regulate.”
(Chairman DeFazio responded, “I’m liking what I’m hearing, keep it up.”)
Dickson said that the 2010 law has “more than one hundred unique requirements that we are implementing in a holistic, systematic, transparent, and efficient manner to improve aircraft certification and safety oversight.”
Aviation Subcommittee chairman Rick Larsen (D-WA) noted that, for implementing the new certification procedures, the FAA has been writing “policy guidance” documents in some instances instead of establishing APA-compliant rules. Dickson said that, insofar as the certification changes involve new procedures for FAA employees, policy guidance documents are better than formal rules because they have the same force and effect on agency employees and can can be written and amended more quickly because they don’t have to go through the APA process. Implicitly, however, any changes in certification policy that purport to be legally binding on manufacturers would have to go through APA rulemaking.
Rep. Sam Graves (R-MO), ranking member on the full T&I Committee and a pilot himself, spoke frequently during the debate on the 2020 bill about inadequate training standards for foreign pilots (he felt they were becoming too dependent on automation, leaving them unprepared for situations when the automation goes wrong, as it did in the 737 MAX crashes). While this is not something that the FAA can control directly, Dickson told the committee that the FAA has reached out to its foreign counterparts on this topic, including “several webinars, work group meetings, and seminars, including a presentation at the 2021 Zhuhai International Flight Training and Safety seminar on topics of competency based pilot training and automation dependency.”
Aviation Subcommittee ranking member Garret Graves (R-LA) asked if the 737 MAX experience was causing the European Union certification body (EASA) to rely less on the FAA. Dickson responded that he had seen no violations of the bilateral agreement with EASA and the two agencies had a recent safety summit and were on the same page.
One of the big conceptual questions that was raised by the 737 MAX problems was: when does a modification of an old airplane become so different that it is a new airplane? The MAX was the umptenth amendment to the 50-year-old safety certificate of the original 737, but it was a very different airplane with different handling characteristics. The 2020 law ordered the FAA to take a good look at that issue.
Larsen asked about the status of this item, and Dickson said that the law required a new study, which is now being conducted by the MITRE Corporation, and that since this was an issue across countries, the FAA established a Changed Product Rule International Authority Working Group, which held its first meeting in July 2021. That working group is supposed to report back possible changes in procedure next summer.