It's Easy, Just Change The Rule

In conversations with mechanics, pilots, air traffic controllers, and flight attendants, I think the six words I hear most often are, “It’s easy, just change the rule.” Barney and Andy said it down at Floyd’s barber shop and … well, maybe not Andy, but Barney was raising cane and threatening to get out his bullet. Go get Thelma-Lou! But all these folks have the same opinion for saving the world of aviation as we know it: just change rules.

To change rules (or regulations) takes an act(ion) of Congress, specifically Title 5 published by the Office of Law Revision Counsel of the U.S. House of Representatives. The FAA, a branch of the Department of Transportation, gets our marching orders from Congress, who provides funding. Considering how slow the wheels of government turn, the changing of a rule isn’t a simple matter. I asked Kim Barnette of AFS-300: what’s the price tag to change a rule? It depends on the change; it could take three years and cost $200,000 or two years costing $2,000,000. Complex rulemaking may take many years before completion.

Recent events raise the will of government agencies, advocacy groups, and accident victims’ families into the headlines; their initiatives are personal, the importance unquestionable, and their agendas are to honor those lost; I won’t trivialize their motives. But the repercussions of changing rules can be like either a ripple or a tsunami, the effects felt throughout many industries and lives, not just aviation.

Rule adjustment vs. change

A recommendation may initiate a rule adjustment, because not all recommendations rise to rule changes. Most recommendations can be satisfied through other methods, e.g. policy revisions, which are handled internally and meted out to offending certificates without affecting everyone else; regional procedural modifications can funnel surveillance to saturate a certificate for a local problem. What about statute (law) changes? If the NTSB recommends a statute change, the FAA can’t help; only the executive, legislative, and judicial branches of government can change statutes.

The U.S. Congress assigns rulemaking to the FAA, who gathers the professional resources vital to making rule changes, e.g. in FAA Order 1110.139B, which focuses on performance-based rulemaking; changing rules to meet assumed needs. So how does a rule get changed? Let’s reference Title 5, Part 1, Chapter 5, subchapter III: the FAA (being a government agency) may “establish a rulemaking committee to negotiate and develop a proposed rule.” A rule change begins its life as a focus group. In its infancy, a change requires subject matter experts (SME) to study that change’s cause and effect, analyze costs to the industry, legal ramifications to all involved (especially the flying public), and if the rule change will continue to be effective down line a few years.

Analyzing the cost

Now everyone in this industry lives in or near a place known as Beancounterville: all of us account for each action accomplished. If you change a tire which aircraft is charged, how long did it take to overhaul an actuator, who worked it, or who is this annual charged to? Every aspect of our workday is itemized.

When we opt to change a rule, the dollars allotted to that project must also be accounted for, thus the multimillion dollar price tag. Each team member is given their assignments; some are more tedious than others, requiring research or analysis that is involved. Let’s say a maintenance training rule was highlighted. The analysis might look at: locations, industry standards, feasibility, and/or the different impacts on 121, 135, or 145 certificate holders. This is a time-intensive part of the process.

Meetings and information

As the change goes into its adolescence, what follows is loaded with meetings; all members bringing to the group the fruits of their labors — the information needed to move forward. For the focus group, industry plays an important role in the process; manufacturers, operators, unions, and individuals are tapped to mold the rule in this new image. SME, both FAA and industry, tap their experience and guidelines to feed the analysis that takes input to continue the development of the rule. Months pass, debates subside, and the rule moves onto the next stage.

Comments from industry

Before the writing of the rule, the ex parte (without the presence of the other party) phase dictates that all outside entities, e.g. manufacturers, operators, etc., be removed from the process; the FAA composes the rule alone. When it drafts a final product and it’s submitted for review, the ‘product’ (new rule) needs streamlining. Publications takes this rough draft and polishes the language; the clarity of the product is honed before numerous FAA departments review it and clean it up even more, review, clean, and review again. On the surface it seems a futile process, but the broader view injects accuracy while assuring words like ‘and’ or ‘may’ don’t confuse the intent of the changed rule; some NTSB law judges have ruled on the strength of one word.

Now to communicate a change on a certificate can be a minor ordeal; it could be relayed with a shift meeting to inform everyone (ripple), while other changes can be as catastrophic to a certificate as changing the way they do business or where (tsunami). To debilitate a certificate, no matter how small, without their opinion cultivates insecurity and can move through industry like a flash fire. Many lobbying to force rule changes may say, ‘Too bad, the rules need changing! Let them deal with it for safety’s sake!’

This is a naive view; in the United States, certificate holders — both individual and corporate — deserve to be heard especially when their futures may be drastically altered; it doesn’t make sense to punish all for the sins of a few. To alleviate these fears or at least throttle them back a bit, the government encourages comments through Notices of Proposed Rulemaking (NPRM).

What is the NPRM? Created by the Administrative Procedure Act (1946), the NPRM enables the industry to view upcoming rules and directives brought to light by the FAA and other individual government agencies. Through this process all in the various industries get to see what’s coming down the pike that’s regulatory or required for an operator’s equipment. After review, the industry folks can comment, disagree vehemently (yet respectfully), or even offer up a better idea to meet the same end. It’s designed to forego surprises and allow the industry to prepare for changes that will result in safe commerce and sound practices.

But the NPRM is also a tool that can push information out-to-in; manufacturers, as do all, have access to feedback in the public domain. They can recognize opinions and concerns raised by individuals and organizations that make up their client base; those actually working with their equipment daily.

Conducting business is like working a machine; all operates on cause and effect. Likewise, rule changes are dependent on what’s input for proper output; longtime veterans of this industry can testify that the eventual output can be unexpected … or worse. We need to measure twice, cut once; make the rules work to make everybody safe. Rule changes aren’t impulsive; they are well thought out, analytically tailored to provide safety to everyone of us who rely on this industry. They can’t … just change. AMT

 

Stephen Carbone is an aviation industry veteran of 28 years. He works at the Boston regional office in the Flight Standards Airworthiness Technical Branch. He holds a master’s degree in aviation safety systems.

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