Torqued: Good News in the FAA’s 2018 Reauthorization Act

 - December 26, 2018, 8:34 AM

Late last year Congress passed and the President signed into law one of the longest FAA funding bills in decades. The five-year funding bill covers a wide range of issues, some written about extensively and some that I have not seen addressed at all. I thought I would cover some of the provisions that have not been highlighted that I think are noteworthy and positive.

Section 223 requires the FAA to establish a centralized regulatory guidance database. For those of you who struggle—as I have—to find what FAA guidance applies in a specific situation or how some entities get special permissions and others don’t, I thought this was a very positive requirement. “Regulatory guidance documents” means all forms of written information issued by the FAA that an individual or entity may use to interpret or apply FAA regulations and requirements, including “information an individual or entity may use to determine acceptable means of compliance with such regulations and requirements, such as an order, manual, circular, policy statement, legal interpretation memorandum, or rulemaking document.”

While the FAA has many databases, some of this information—such as internal policy statements or legal opinions to specific individuals or entities—is not always easy to find or even publicly available. A centralized database will make it easier for everyone who needs to comply with Federal Aviation Regulations or who needs special authorizations or exemptions from the agency. And the law specifically requires the database to be available to the public, a requirement that could help level the playing field. Even if you can’t afford to hire a white-shoe aviation firm, you may be able to finally see what those who can are able to get from the agency, although private information and trade secrets are specifically protected by the law. While the law is a positive step and implementation is supposed to begin within 14 months, how long it will take to actually implement is unclear, as it requires a consultation process within and outside the FAA.

Along with greater transparency in finding regulatory guidance, the law requires a “regulatory consistency communications board” (Section 223). Many of you—again, like me—have at some point faced inconsistent opinions from FAA field personnel in different regions and even within different offices in FAA headquarters. It’s maddening when you’re running a business across regional lines and are being told different things by different inspectors, and you’re afraid to antagonize one inspector with the opinion of another. This board would iron out differences in regulatory interpretations and make those decisions available internally and externally to the industry and the public. The law has very ambitious timelines, which I do not expect the FAA to meet. And, yet, if the agency at least begins the process of becoming more consistent and transparent, that’s a good thing.

Safety Information Gathering

Another positive benefit I see in the law is at Section 320. For those of us who believe that voluntary safety reports from frontline workers are critical to aviation safety—and form the crux of safety management systems—I was happy to see a presumption included in the Reauthorization Act (Section 320) that states: There shall be a presumption that an individual’s voluntary report of an operational or maintenance issue related to aviation safety under an aviation safety action program meets the criteria for acceptance as a valid report under such program.” This presumption may make it more likely that workers will submit maintenance and operational safety issues through their company ASAP (aviation safety action program) and that they will qualify for the enforcement and disciplinary waivers that accepted reports have from both the FAA and the company they work for. In the past, concerns over whether a report was acceptable have led workers to hesitate to file them.

The Reauthorization Act makes some changes to the so-called Pilot’s Bill of Rights (Section 392), referring to the section as the “Fairness for Pilots Act” even though it applies to holders of all airman certificates. While the changes are positive, calling it a “pilot” section bothers me on so many levels, particularly because it seems that Congress is unaware that the aviation industry is composed of more than just pilots—important as they are—and that FAA enforcement actions also affect other certified airmen. Calling this section, as the law that preceded it, a law for pilots makes it much more likely that mechanics, dispatchers, air traffic controllers, remote pilots, and other certificate holders will not be aware of it. How fair is that?

Among the changes required by the law, the FAA will now not only have to notify certificate holders of the nature of its investigation but also “the specific activity on which the investigation is based.” If they know exactly what activity forms the basis for the FAA’s investigation, certificate holders can better defend themselves. The section also requires that in cases involving emergency orders, the FAA “shall provide, upon request, to the individual holding the airman certificate the releasable portion of the investigative report at the time the Administrator issues the order. If the complete Report of Investigation is not available at the time of the request, the Administrator shall issue all portions of the report that are available at the time and shall provide the full report not later than five days after its completion.” Failure to timely provide reports to certificate holders could result in dismissal of the case if the FAA can’t demonstrate that it had a good excuse for not providing them.

This same “Fairness to Pilots” section requires that requests for re-examination of airman certificates (not just pilot certificates) contain “a reasonable basis, described in detail, for requesting the re-examination.” NTSB decisions have always required a reasonable basis for re-examination, but usually, the information communicated to the potential examinee has been limited to a description of an incident or accident that the FAA claimed raised questions of the person’s qualifications. And the burden of proof has been very light in those cases where the FAA’s decision was challenged. So certificate holders were left with the choice of either challenging the FAA’s request for re-examination, most likely losing the challenge, and then paying the money for an aircraft to re-examine in; or just going ahead and agreeing to the re-examination to start with even if he or she did not believe the facts warranted it. This change will require the FAA to provide more information on why the re-examination is requested and hopefully provide greater opportunity to successfully challenge those requests believed to be unwarranted.

The last sections I thought were positive have to do with the law’s establishment of task forces and studies to focus on how we’re going to encourage more of our workforce to seek jobs in aviation, Sections 601 (Youth in Aviation), 611 (Women in Aviation) and 621 (Future of Aviation Workforce). What is particularly promising is the requirement in Section 625 for the Secretary of Transportation to establish grant programs “to provide grants for eligible projects to support the education of future aircraft pilots and the development of the aircraft pilot workforce; and a program to provide grants for eligible projects to support the education and recruitment of aviation maintenance technical workers and the development of the aviation maintenance workforce.” Congress has authorized $5 million a year each for pilot and mechanic projects for Fiscal Years 2019 to 2023.

These are some positive highlights that I saw in the new reauthorization act. I would love to hear from you what sections caught your attention in the new law.