RAA attempts to decode mixed signals from feds

 - October 4, 2007, 8:14 AM

RAA director of technical affairs Dave Lotterer knows perhaps as well as anyone that good intentions at the FAA don’t necessarily translate into sound action. So when the agency pledged to pursue more vigorously a “performance-based” approach to safety oversight, Lotterer met the promise of a simpler, more straightforward code of regulations with a healthy dose of skepticism. Manifest in a program called the Air Transport Oversight System, the effort will require a huge commitment by operators to overhaul their safety processes. Theoretically, however, it would pay dividends in the long run with a more flexible and proactive form of oversight.

Not surprisingly, Lotterer’s mis- givings proved well founded when the FAA introduced a new set of rule appendices that could make the regulations governing pilot and flight attendant training look concise by comparison. Although the new concept, known as quality performance standards (QPS), will at first apply to Part 60 flight simulator qualification rules, Lotterer warns that, unless industry intervenes, it will sweep through the FARs like a plague, adding thousands upon thousands of pages of rules and recommendations to an already arcane and complex regulatory code.

“There are scores of people interested in FAA rulemaking who are not necessarily interested in Part 60 and are therefore unaware of this QPS concept,” said Lotterer. “We find it disturbing that QPS seems to be forced on us through selective dockets where industry exposure is limited. Like the ‘Field of Dreams,’ once the first QPS appendix is adopted, the others will surely follow.”

In the case of the flight simulator rules, QPS would essentially adopt the content of a pair of existing advisory circulars and apply them to Part 60, in effect codifying previously non-mandatory guidance material. In all, the four new appendices would add some 400 pages to the regulations. Most recently the agency has proposed applying QPS to the regulations on hazardous materials training. Next, it wants to add it to Part 121 Subparts N and O, which govern training for pilots and flight attendants among other positions.

The FAA claims it needs QPS to enforce safety practices recommended in the ACs and operator handbooks. FAA staff members have also told Lotterer that because the agency classifies a QPS or appendix as “internal,” it does not need approval from other federal agencies to effect a minor rule change, allowing it to produce an amendment in six months. Lotterer rejects that premise.

“Even if this proposal is in fact viewed as an ‘internal amendment,’ a six-month revision process for all subsequent changes will simply not happen,” Lotterer wrote in response to the Part 60 proposal. “One of our members recently had to wait a year for the FAA to process and approve a simple two-year extension to an existing exemption.”

As the system stands today, an operator who seeks an exemption to a given rule must file its own petition because the agency’s lawyers view blanket exemptions as “rulemaking.” Consequently, the FAA has to consider each petition individually. To turn AC guidance material into regulations will only serve to encourage “hundreds” of operators to file exemptions, argues the RAA, bringing further gridlock to an already languid bureaucracy.

Lotterer called QPS “the antithesis to the concept of performance-based rulemaking.” Under the Part 60 QPS, the FAA would place a column on the left of the text listing material classified as mandatory and “informational.” The agency would treat the so-called informational material as if it were in an AC. The RAA argues that peppering rulemaking text with AC guidance would only serve to dupe operators into blindly and unnecessarily treating all the material as mandatory. “Is QPS really intended to confuse a reader on what is regulatory and what is advisory so that the regulated does both without question?” asked Lotterer rhetorically. “We believe that confusion is the intended effect.

“The FAA should be working on clarifying and simplifying the regulations,” he added. “We are not aware of any FAA policy change to eliminate ACs, so industry would have two different methods of receiving FAA-approved advisory materials.”

While the application of QPS in simulator certification rules would set a disturbing precedent, operators won’t feel the full brunt of the concept until proposed new rules governing hazmat training take effect. The NPRM (FAA-2003-15085) would force operators flying under Part 121 and 135 to completely revamp their programs to reflect a new set of certification rules.

Cost Analysis “A Sham”
“Every operator has to have its training program approved by the FAA before it can begin training. To suggest that air carriers will not incorporate the relevant portions of FAA guidance material because they view it as ‘unenforceable’ is totally unfounded,” said Lotterer. “This will do nothing but stifle innovation. As with the simulator rules, this doesn’t allow even minor changes except through an onerous rulemaking petition process. And, of course, the cost benefit analysis is a complete sham.”

All this comes as the FAA’s Air Transport Oversight System (ATOS) program spreads to include every U.S. regional airline flying scheduled passenger service. American Eagle recently became the first, after the FAA imposed the program on 10 major airlines since its introduction in 1998. Now preparing for a full process audit of St. George, Utah-based SkyWest after a six-month preliminary assessment, ATOS specialists have set their sights on Houston’s ExpressJet for their next appraisal.

Established largely in reaction to the 1996 crash of a ValuJet DC-9 in the Florida Everglades, ATOS uses a so-called systematic approach to ensure a given airline’s internal processes organically promote compliance with existing regulations. For example, in the event an employee normally responsible for a particular function for whatever reason fails in his duties, an ATOS-compliant system would ensure a mechanism exists to ensure someone else performs the task.

ATOS in effect divides an air carrier’s operations into seven “systems,” 15 “subsystems” and 95 underlying component “elements” that build the structure for oversight, data collection and risk detection. Two distinct kinds of inspection–the safety attribute inspection (SAI) and element performance inspection (EPI)–cover oversight. SAIs measure whether an airline’s subsystems meet standards of responsibility, authority, procedures, controls, process measurement and interfaces. Meanwhile, EPIs cover actual performance, such as the extent to which employees adhere to procedures and keep proper records. ATOS also incorporates more than 2,200 specific regulations into the SAIs and EPIs.

“Basically, the SAIs and EPIs are a series of questions–thousands of them,” said Lotterer. “Eagle had to add four or five auditors to its program just to keep up.”

According to Lotterer, the FAA wants to use the data it collects from the various airlines to compare each operator’s relative strengths and weaknesses. However, not only does the program consume enormous time and resources at the airlines; it requires a dedicated staff at the FAA, which, under ever-tightening budget constraints cannot afford enough inspectors to perform the job within a reasonable timeframe.

“These are massive audits: people come in and they stay,” said Lotterer. “They require a lot of manual changes; that alone is really quite burdensome. If they know the carriers have the systems in place, at some point they shouldn’t need so many inspectors because they’re supposed to be able to rely on the systems to accomplish their objectives. But they have to add inspectors when they do an ATOS program because it’s so complex in terms of retrieving information, and the exact opposite has occurred.”

Of course, the subject of FAA staffing resurfaced as the NTSB in late February issued a report critical of the agency’s oversight of the maintenance contractor that worked on the Air Midwest Beech 1900D that crashed in Charlotte early last year.

Lotterer refused to blame the system of using outside maintenance contractors, but rather the level of funding for the FAA and the way the agency uses its inspectors.

“The FAA is being stretched,” he said. “A lot of its money went to security. You know you can’t cover everything. I see now that it is criticizing security at the small charter outfits. Sure there’s a security risk, but there are security risks all over the place. Where are you going to put your money? I think people have just jumped on the aviation business for so many years, but this was really our first accident we’ve had with fatalities in six years. That’s just a phenomenal record.”

Lotterer admitted, however, that he thinks the FAA needs to reconsider its approach to repair station surveillance. “It has area inspectors, but they are not its main focus,” he said. “The main focus is the operator and its headquarters, where most of the activity takes place. I think the FAA has to look at this and just see if that approach is good or not.”