SPEAKERS CONTENTS INSERTS
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74–383 PS
2001
THE U.S. GENERAL ACCOUNTING OFFICE'S REPORT ON THE FEDERAL AVIATION ADMINISTRATION'S RULEMAKING PROCESS
(107–31)
HEARING
BEFORE THE
SUBCOMMITTEE ON
AVIATION
OF THE
COMMITTEE ON
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TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
JULY 11, 2001
Printed for the use of the
Committee on Transportation and Infrastructure
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
DON YOUNG, Alaska, Chairman
THOMAS E. PETRI, Wisconsin, Vice-Chair
SHERWOOD L. BOEHLERT, New York
HOWARD COBLE, North Carolina
JOHN J. DUNCAN, Jr., Tennessee
WAYNE T. GILCHREST, Maryland
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STEPHEN HORN, California
JOHN L. MICA, Florida
JACK QUINN, New York
VERNON J. EHLERS, Michigan
SPENCER BACHUS, Alabama
STEVEN C. LaTOURETTE, Ohio
SUE W. KELLY, New York
RICHARD H. BAKER, Louisiana
ROBERT W. NEY, Ohio
JOHN COOKSEY, Louisiana
JOHN R. THUNE, South Dakota
FRANK A. LoBIONDO, New Jersey
JERRY MORAN, Kansas
RICHARD W. POMBO, California
JIM DeMINT, South Carolina
DOUG BEREUTER, Nebraska
MICHAEL K. SIMPSON, Idaho
JOHNNY ISAKSON, Georgia
ROBIN HAYES, North Carolina
ROB SIMMONS, Connecticut
MIKE ROGERS, Michigan
SHELLEY MOORE CAPITO, West Virginia
MARK STEVEN KIRK, Illinois
HENRY E, BROWN, Jr., South Carolina
TIMOTHY V. JOHNSON, Illinois
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BRIAN D. KERNS, Indiana
DENNIS R. REHBERG, Montana
TODD RUSSELL PLATTS, Pennsylvania
MIKE FERGUSON, New Jersey
SAM GRAVES, Missouri
C.L. (BUTCH) OTTER, Idaho
MARK R. KENNEDY, Minnesota
JOHN ABNEY CULBERSON, Texas
BILL SHUSTER, Pennsylvania
JOHN BOOZMAN, Arkansas
JAMES L. OBERSTAR, Minnesota
NICK J. RAHALL II, West Virginia
ROBERT A. BORSKI, Pennsylvania
WILLIAM O. LIPINSKI, Illinois
PETER A. DeFAZIO, Oregon
BOB CLEMENT, Tennessee
JERRY F. COSTELLO, Illinois
ELEANOR HOLMES NORTON, District of Columbia
JERROLD NADLER, New York
ROBERT MENENDEZ, New Jersey
CORRINE BROWN, Florida
JAMES A. BARCIA, Michigan
BOB FILNER, California
EDDIE BERNICE JOHNSON, Texas
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FRANK MASCARA, Pennsylvania
GENE TAYLOR, Mississippi
JUANITA MILLENDER-McDONALD, California
ELIJAH E. CUMMINGS, Maryland
EARL BLUMENAUER, Oregon
MAX SANDLIN, Texas
ELLEN O. TAUSCHER, California
BILL PASCRELL, JR., New Jersey
LEONARD L. BOSWELL, Iowa
JAMES P. McGOVERN, Massachusetts
TIM HOLDEN, Pennsylvania
NICK LAMPSON, Texas
JOHN ELIAS BALDACCI, Maine
MARION BERRY, Arkansas
BRIAN BAIRD, Washington
SHELLEY BERKLEY, Nevada
BRAD CARSON, Oklahoma
JIM MATHESON, Utah
MICHAEL M. HONDA, California
RICK LARSEN, Washington
(ii)
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SUBCOMMITTEE ON AVIATION
JOHN L. MICA, Florida, Chairman
THOMAS E. PETRI, Wisconsin
JOHN J. DUNCAN, Jr., Tennessee
STEPHEN HORN, California
JACK QUINN, New York
VERNON J. EHLERS, Michigan
SPENCER BACHUS, Alabama
SUE W. KELLY, New York
RICHARD H. BAKER, Louisiana
JOHN COOKSEY, Louisiana, Vice Chairman
JOHN R. THUNE, South Dakota
FRANK A. LoBIONDO, New Jersey
JERRY MORAN, Kansas
MICHAEL K. SIMPSON, Idaho
JOHNNY ISAKSON, Georgia
ROBIN HAYES, North Carolina
MARK STEVEN KIRK, Illinois
TIMOTHY V. JOHNSON, Illinois
DENNIS R. REHBERG, Montana
SAM GRAVES, Missouri
MARK R. KENNEDY, Minnesota
JOHN ABNEY CULBERSON, Texas
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BUD SHUSTER, Pennsylvania
JOHN BOOZMAN, Arkansas
DON YOUNG, Alaska
(Ex Officio)
WILLIAM O. LIPINSKI, Illinois
ELEANOR HOLMES NORTON, District of Columbia
EDDIE BERNICE JOHNSON, Texas
LEONARD L. BOSWELL, Iowa
JOHN ELIAS BALDACCI, Maine
PETER A. DeFAZIO, Oregon
JERRY F. COSTELLO, Illinois
ROBERT MENENDEZ, New Jersey
CORRINE BROWN, Florida
JUANITA MILLENDER-McDONALD, California
MAX SANDLIN, Texas
ELLEN O. TAUSCHER, California
BILL PASCRELL, JR., New Jersey
TIM HOLDEN, Pennsylvania
NICK LAMPSON, Texas
SHELLEY BERKLEY, Nevada
BRAD CARSON, Oklahoma
JIM MATHESON, Utah
MICHAEL M. HONDA, California
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NICK J. RAHALL II, West Virginia
JAMES L. OBERSTAR, Minnesota
(Ex Officio)
(iii)
CONTENTS
TESTIMONY
Bolen, Edward, Chairman, Federal Aviation Administration, Management Advisory Council, MAC
Dillingham, Gerald L., Director, Physical Infrastructure Issues, U.S. General Accounting Office
Filler, Marshall S., Counsel, Aeronautical Repair Station Association
Friend, Patricia, Secretary-Treasurer, Transportation Trades Department, AFL-CIO
Gilligan, Margaret, Deputy Associate Administrator for Regulation and Certification, Federal Aviation Administration
PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS
Costello, Hon. Jerry F., of Illinois
Oberstar, Hon. James L., of Minnesota
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PREPARED STATEMENTS SUBMITTED BY WITNESSES
Bolen, Edward
Dillingham, Gerald L
Filler, Marshall S
Friend, Patricia
Gilligan, Margaret
SUBMISSIONS FOR THE RECORD
Dillingham, Gerald L., Director, Physical Infrastructure Issues, U.S. General Accounting Office, report, Further Reform is Needed to Address Long-standing Problems, July 2001 (contained in the subcommittee file)
Gilligan, Margaret, Deputy Associate Administrator for Regulation and Certification, Federal Aviation Administration, Rulemaking Top Priorities, charts
ADDITIONS TO THE RECORD
American Federation of State, County and Municipal Employees, AFL-CIO, statement
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Aircraft Electronics Association, statement
Federal Aviation Administration, Jane F. Garvey, Administrator, letter, March 19, 2001
THE U.S. GENERAL ACCOUNTING OFFICE'S REPORT ON THE FEDERAL AVIATION ADMINISTRATION'S RULEMAKING PROCESS
Wednesday, July 11, 2001
House of Representatives, Committee on Transportation and Infrastructure, Subcommittee on Aviation, Washington, D.C.
The committee met, pursuant to call, at 2:00 p.m. in room 2167, Rayburn House Office Building, Hon. John L. Mica [chairman of the subcommittee] presiding.
Mr. MICA. Good afternoon. I'd like to call this hearing of the Aviation Subcommittee to order. We're meeting today to receive a report from the General Accounting Office on FAA's rulemaking process. We'll start the proceedings with opening statements, I'll give mine then we'll yield to other members.
We have one panel of witnesses. And we'll hear from that panel of witnesses. I think we're going to be interrupted by a vote in about 20, 30 minutes, so let's get started.
Again, the hearing today is on the General Accounting Office's report on FAA's rulemaking progress. Rulemaking is not one of those high profile issues like safety or passenger service. But it is the process by which the executive branch implements policies and procedures. While Congress enacts general laws, rules must be used to carry out those laws. If we're in fact to improve safety or increase passenger services and rights, it will have to be done through a rulemaking process.
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The report that we're about to hear today was initiated at a request of former Aviation Subcommittee Chairman Jimmy Duncan from Tennessee. He was concerned, as I am concerned, about the time it's taken the Federal Aviation Administration to complete its tasks, specifically rulemaking.
Whether it be air traffic control modernization or safety rulemaking, it always seems to take FAA longer than we would hope or expect. I think we want to all try to understand why we have this situation.
It may be small consolation, but it appears that FAA is no worse than any of the other Federal agencies. The GAO report finds that the median time for an FAA rulemaking is two and a half years. Earlier, the DOT inspector general had found that it took the Department of Transportation on average 3.8 years to issue a rule. However, in several critical areas, it's taken FAA an unusually long time to act.
The General Accounting Office will tell us today that FAA issued 29 significant rules between 1995 and 2000. Of those, half were issued in two and a half years. But six took at least ten years. Let me give you a couple of examples. Passenger emergency exit rules took some 10 years to develop. Flight simulator rules took 13 years, and a revision to pilot medical standards took some 14 years.
Moreover, the FAA has been working on improved seats for commercial aircraft since 1988, on rules governing aircraft repair facilities since 1986, and on improved survival equipment for water landings since 1985. But GAO reports that FAA has still not issued a final rule in those specific areas.
In many cases, the issues are very complex, and a regulation may or may not be justified. However, even where Congress directs that a rule be issued, there's no assurance, in fact, that that rule will be issued.
In 1988, the Drug Enforcement Assistance Act was passed by Congress to assist the DEA. It directed revised procedures to better identify those wishing to register an aircraft. The law required that a rule be enacted by 1989, but it still hasn't been issued. In 1996, legislation was enacted setting deadlines for FAA rulemaking action, but GAO tells us that FAA missed its deadlines more than half the time. FAA recognized the problem in 1998 and enacted reforms that were supposed to expedite the process.
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However, I think what we'll hear today is kind of interesting, because GAO will tell us that in fact, it now takes some nine months longer to issue a rule. That's after we passed the reform to speed it up.
In this hearing, we hope to better understand this entire rulemaking process and also why that rulemaking process takes so long. I want to thank GAO for their work on this important report, and also for other witnesses who are going to provide us with input on that process.
I'm now pleased to recognize our Ranking Member on the Subcommittee, Mr. Lipinski.
Mr. LIPINSKI. Thank you, Mr. Chairman. I, like most other people, are not happy with how long it takes the FAA to get their rules out. But I think we have to all realize right off the bat that first of all, the FAA is very thorough in their rulemaking. I think the Congress of the United States unfortunately passes laws that are very vague and take quite a bit of work to refine into an absolute rule.
I also believe that people who are not interested in having the rule be implemented make long, detailed, numerous comments on the proposed notice of rulemaking, simply to slow it down, rather than to really aid and assist the process. I also believe that after we pass a law that we need a rule to be made by the FAA and other Government agencies. Members of Congress sometimes make telephone calls trying to slow down that process for one reason or another.
So I don't think that we should look too critically at the FAA or any other entity of the Federal Government in their rulemaking. I think we have to, to a great degree, look at our selves and look at individuals who are involved in the various industries that these rules affect. I think we have to take all of that into consideration when we are reading over these reports, and realize that we all have a hand in it.
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I'll be very interested to hear what the witnesses have to say today, and Mr. Chairman, I yield back the balance of my time.
Mr. MICA. I thank the gentleman. Any other opening statements? Anything from our side? Mr. Oberstar, you're recognized.
Mr. OBERSTAR. Thank you, Mr. Chairman. Thank you for holding this hearing. I appreciate the work that you and Mr. Lipinski are doing to focus attention on this very important matter. Not one that generally gets the public excited about aviation issues, but one that we as overseers of the process must pay attention to, and that the FAA itself must pay attention to.
I appreciate your opening examples, Mr. Chairman, of particular rules that took a very long time, and I think Mr. Lipinski's observation is right on. We can agree between House and Senate or even within the House, we leave very vague language for the agency to have to decipher, and then we fuss when they don't. And when a rulemaking isn't quite going the way one or another member of Congress wants it, then there's some intervention.
And I would take it a step further, there are the regulated who don't like one or another aspect. And they drag the process out. And then there is the cost benefit aspect of safety rulemaking that is particularly irritable to me. I think it is unnecessarily burdensome, ought not to take so long, and we ought not to have so many requirements on safety rules from a cost benefit standpoint.
But there is much to be concerned about with the rulemaking. I was so concerned in the last Congress that I asked the inspector general to review the entire rulemaking process for the whole Department of Transportation. And that report was astonishing. At that point, year 2000, it was taking longer for the Department of Transportation to issue a rule than it was six years earlier. Twice as long to issue rules.
And at the bottleneck was the office of the secretary. In 1993, the Department issued 45 rules, took an average of 1.8 years to issue. By 1999, the Department had issued 20 new rules that took 3.8 years on average to issue those rules. That's the IG's report. That's going in the wrong direction.
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I discussed that matter with Secretary Slater. He, to his credit, took steps to speed up the process, get the attention of the appropriate agency heads, and try to get all the rulemaking program on track again and cut this time. And I discussed the matter with secretary designate, then later Secretary of Transportation Norm Mineta. I gave him a copy of the IG finding.
Now we have a GAO review of rulemaking. This is just frustrating to the traveling public, to the operators of airlines, to those particularly in the safety arena, that it takes so long for the internal process. Now, in 1996, we mandated in our aviation reauthorization bill that FAA issue a rule within 16 months at the end of the comment period for a proposed rule. FAA has missed that deadline for more than half of the rulemaking subjected to that mandate. That's unacceptable.
Whatever the problems are, FAA ought to address them, internally, externally, within the Department and between the Department and the Office of Management and Budget, which is often a bottleneck as well.
So GAO says the median time for FAA increased from 30 months to 38 months in the three year period following the mandate for reforms. That's not acceptable either.
So I look forward to Dr. Dillingham's comments, FAA's response. But I think we should take note that a very wise recommendation from GAO, that FAA should reduce the number of projects to which it gives the highest priority, that FAA should require timely and effective participation by management in decision making and in the prioritization of the various projects, and make better use of information management to monitor and improve the process.
Those are practical, simply achieved recommendations and ones that ought to be accepted and implemented. Because once they are done, the benefits will be that the career employees will be following these rules. And whatever superstructure changes there are, that is in the Department or the head of FAA, those who do the day to day business of running FAA will be doing it in a more structured, efficient and effective and expeditious manner. That should be our objective, to implement these and to invest those changes deeply into the operating structure of FAA.
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Thank you, Mr. Chairman.
Mr. MICA. Thank you. I have a request from Mr. Pascrell, the gentleman from New Jersey.
Mr. PASCRELL. Just very briefly, Mr. Chairman. If everything is a priority, then nothing is a priority. I think that goes for the Congress as well as the FAA. And I hope when we look back over the last five years that we've communicated to the FAA what our priorities are. So there is something to be looked at on both sides of this particular issue.
The rulemaking process may be like watching paint dry. But the fact is that it really forces us to make clear to the public what our priorities are, Mr. Chairman, and I thank you for this hearing. I'm anxious to hear the testimony. Thank you.
Mr. MICA. Thank you. I recognize the gentlelady from the District, Ms. Norton.
Ms. NORTON. Thank you very much, Mr. Chairman.
I'm interested in this hearing, I have another hearing going on that I must attend as well. But I'm particularly interested in this hearing, I'm actually interested in the larger issue. When we look at real rulemaking in Government, it seems we first have to come to grips with the fact that we are only bringing notions of efficiency to State and local and the Federal Government for the first time in the last decade or so in the first place.
Rulemaking is perhaps the most labor intensive part of what the Government does, not only because it has to do with itself, but the rule has to hear from all sides, it has to follow the APA, the Administrative Procedures Act. We of course delegate this to agencies, because we couldn't possibly do it ourselves. This is part of the legislative process, however, which the Constitution allows us to delegate, because the level of detail and the level of expertise is such that no legislative body could do it.
That said, it seems to me that we have got to make the rulemaking process a great deal more efficient, especially when you talk about an area like aviation, where safety may be involved. Years go by, you may be talking lives go by, or worse. It is not an answer to throw out the baby with the bath water. These are not rules people are making up for the heck of it. Whoever it is is doing it because Congress has delegated the authority to do it.
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I believe that the Federal Government needs to look at the rulemaking process throughout the Government. Obviously, these matters are tailored agency by agency. But I am not sure we have done what this Subcommittee is doing, which is looking at rulemaking circa 21st century, to see whether or not we are essentially working with what amounts to a 19th century or even a New Deal rulemaking process. Remember, all of this comes fairly recently in our history. It comes out of the New Deal where we got administrative agencies in the first place, and therefore had this process. Didn't make a lot of difference how fast you did it once, it makes a lot of difference now.
I don't believe that, you know, I'm encouraged by some progress that the FAA is making. I am not encouraged by whether or not we are putting a wholly different set of eyes, a wholly different way of looking at rulemaking, into the way at which we look agency by agency at this. I would like to see us look at rulemaking in the Federal Government, obviously, that's not for this Committee. I think this Committee is doing what it should do.
I would like to mention that at a hearing that this Committee had very recently, there was frustration expressed about the time it took, and I remember asking questions and having good responses from the FAA about certain kinds of work that could be done simultaneously. If I recall correctly, it really had to do with the fact that you needed input in order to reach a resolution from the States and the localities, in addition to your own experts.
And in cross examination, what we really uncovered was that the agency was doing this sequentially, that is to say, you know, you've got your ducks in a row and then you go get the ducks in a row of whoever else has input, whereas it was perfectly clear that you didn't lose a lot by having everybody have a go at it at the same time.
I'm simply going to suggest that there are no ways to short circuit or short cut the rulemaking process, one. Two, you can't throw rules out. So three, you've got to learn to do rulemaking smarter. And that takes, it seems to me, a step back and a look at rulemaking across the Federal Government to see if we can in fact come up with new, more expeditious ways to do a rulemaking process.
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I thank you, Mr. Chairman.
Mr. MICA. I thank the gentlelady.
Are there further requests for opening statements? Seeing none, let's go ahead and proceed with our panel of witnesses, and let me introduce them. Our witnesses today include Gerald L. Dillingham, he's the Director of Physical Infrastructure Issues of the General Accounting Office.
Ms. Margaret Gilligan, I understand everybody calls her Peggy, Deputy Associate Administrator for Regulation and Certification of the Federal Aviation Administration. Mr. Marshall Filler, he is Counsel for the Aeronautical Repair Station Association, formerly working with the Aviation Subcommittee. Somebody's made good here. And Ms. Patricia Friend, who's Secretary Treasurer of the Transportation Trades Department.
We also have with us, I saved him for last, Mr. Ed Bolen. He's Chairman of the FAA's Management Advisory Council, MAC. I understand you have members here. If you want to take a moment, Ed, and introduce them. We're not going to let you speak, this is just an introduction.
Mr. BOLEN. Thank you very much, Mr. Chairman. I do appreciate having an opportunity to introduce the members of the MAC. They've flown in from around the country to be here today. We have Randy Babbitt, formerly with the Air Line Pilots Association; Debbie Branson, a partner in the Dallas law firm of Frank L. Branson; Geoff Crowley, President and CEO of Air Wisconsin Airlines; Kendall Wilson, the President of First Financial Services; Bob Baker, the Vice Chairman of American Airlines; and Bob Davis, retired Vice President of Boeing and a former member of the Mineta Commission.
Mr. MICA. Great. Well, thank you, and welcome to members of the FAA management advisory council.
Let's go ahead and hear from the General Accounting Office, and we'll hear from the Director of the Physical Infrastructures Issues Division, Gerald Dillingham. Welcome, and you're recognized, sir.
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TESTIMONY OF GERALD L. DILLINGHAM, DIRECTOR, PHYSICAL INFRASTRUCTURE ISSUES, UNITED STATES GENERAL ACCOUNTING OFFICE
Mr. DILLINGHAM. Good afternoon, Mr. Chairman, Mr. Lipinski, members of the Subcommittee. Thank you for inviting GAO to be here this afternoon.
As this graphic shows, when this Subcommittee requested GAO to conduct the study that we are reporting on today, we joined a list of others who have looked at and expressed concern about the efficiency of the FAA rulemaking process. Key among those concerns is timeliness. On one hand, there's the question of why it takes as long as it does before FAA starts the rulemaking process after a Congressional mandate or after an NTSB safety recommendation.
Analysts also point to rules such as the one for child restraints on aircraft, and ask, why does the process take so long. This was an issue that FAA first studied in the 1970s, and it's still in process in 2001.
As a result of the 1996 legislation, which mandated time frames for the rulemaking process, and the agency's own concern about longstanding problems with the process, in 1998, FAA undertook a comprehensive reform effort. Today I'd like to speak to three key questions that come from that effort. What do we know about the time it takes FAA to complete various stages of the rulemaking process? Second, what did the 1998 reform effort consist of, and third, how was the rulemaking process affected by the reforms?
With regard to the time issue, first, we looked to how long it takes FAA to initiate rulemaking projects in response to Congressional mandates and NTSB recommendations. This graphic shows that FAA initiated over half of these projects within two years. However, this graphic also shows that sometimes it took much longer.
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As indicated by the blue color, we can see that in 25 percent of the mandated cases and 33 percent of the NTSB cases, FAA took more than five years to initiate the rulemaking process. Next, we examined the time involved from the point when FAA formally starts the process to the point of publication of the final rule. For the 29 final rules in our sample, we found that it took a median time of about two and a half years to publish the rule. Clearly, all rules are not equal. It took 10 years or more to finalize 6 of the 29 rules in our sample.
Another aspect of timing is related to the 1996 Congressional mandate that Mr. Oberstar referred to. This required FAA to publish final rules within 16 months of the close of the public comment period. We found that FAA was able to meet this requirement less than 50 percent of the time.
Mr. Chairman, now I'd like to focus on what the reform effort consisted of. Some of the key elements were mechanisms to get early management involvement in the process, a new rulemaking manual to standardize its guidance, including internal time frames for the process, a system to prioritize projects, the development of an automated information system for tracking the projects and expediting document sharing, the creation of continuous improvement and quality review teams, and finally, FAA proposed a number of human capital management reforms, including systems for training, performance management and rewards.
Overall, FAA's reform efforts were not effective in reducing the time it takes the agency to complete the process. This graphic shows that the process time both for the proposed rule phase and the final rule phase in fact increased after the reform effort. We also found that not only did it take longer to complete the processes, the number of rules completed during each phase decreased.
In terms of how often FAA met the internal time frames that it set for itself for publishing of proposed and final rules, our study showed that the agency met them less than 50 percent of the time.
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Mr. Chairman, these results beg the question of, why didn't FAA's reforms make more of a positive impact on the process. The answer to this question for rulemaking is very similar to the answer we've given the Congress about a number of other FAA initiatives, that is, the lack of adequate and effective implementation. This graphic score card shows the level of implementation of key elements of the reform effort.
Although the rule makers told us that they could effectively only manage about 35 rulemaking projects, when we closed our review, there were about 50 projects that were top priority. We also found that on some rules, because the policy issues were not resolved early in the process, delays and rework resulted. We found multiple layers of review within the agency also continued. Delays in the process caused by unclear roles and responsibilities among members of a rulemaking team also continued.
Our study also showed that FAA's new automated information system was not widely used, nor did it have current and complete data for some of the rules. We also found that FAA had not documented the results of any of its continuous improvement or quality assurance efforts. And finally, aside from some initial training, FAA did not implement the human capital elements of the reform.
Mr. Chairman, I think the question now is, what's next? While we understand the process of developing regulations can be complex and time consuming, we believe that timely action by FAA is needed to ensure that aviation safety and security issues are addressed as quickly as possible, and that aviation regulations keep pace with the technological developments in the industry.
We believe that that recommendations contained in FAA's 1998 reform proposals were on target. We further suggest that some elements of the model that is now being applied to address air space congestion and delays be considered in this case to help ensure complete and effective implementation of the reforms, specifically, a consensus plan among the stakeholders, the establishment of FAA executive accountability and the identification of resources needed to implement the plan. And most important, enhanced Congressional oversight.
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Thank you, Mr. Chairman.
Mr. MICA. I thank the gentleman. We'll withhold questions until we've heard from all the witnesses.
Let's hear from Margaret Gilligan, Deputy Associate Administrator for Regulation and Certification. You're recognized. Welcome.
TESTIMONY OF MARGARET GILLIGAN, DEPUTY ASSOCIATE ADMINISTRATOR FOR REGULATION AND CERTIFICATION, FEDERAL AVIATION ADMINISTRATION
Ms. GILLIGAN. Thank you, Mr. Chairman. And thank you Mr. Lipinski and other members of the Committee. We appreciate the opportunity to be here today to testify about the FAA rulemaking process.
The FAA is rightly proud of our high level of aviation safety, and that that level is acknowledged around the world. We are also rightly proud that our regulations set the standard for much of the world.
As you have heard from Dr. Dillingham, GAO did an extensive review of the FAA process. And as is usually the case, there is some good news and there is some substantial bad news. GAO, like many others who have looked at our rulemaking process, came to the conclusion that the process is intended to be both deliberate and deliberative.
In the one measure that GAO used to compare our performance to other rulemaking agencies, they found that we performed in a comparable way to other agencies. While it is acknowledged that completing rules takes a long time, we agree that sometimes the process at FAA just takes too long. That's why we've looked at other tools to bring safety enhancements to the system, including our safety agenda, Safer Skies. Through a detailed study of accident and incident data, by working with operators and manufacturers and aviation unions, we are identifying improvements that need to be made, and we're getting their agreement to make those improvements voluntarily.
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But because of delays, we started our rulemaking reform efforts in 1998. And we're gratified to see that GAO has recommended that we work harder at completing the implementation of initiatives we've already undertaken. As you can see, even after GAO's extensive review of the process, there is no new action nor series of actions that GAO recommended that we undertake. In the end, there is no silver bullet to correct the process issues.
It's important to keep in mind, though, that this is not just a process issue alone. I think, as many of you stated in your opening comments, we must acknowledge there are many issues that FAA takes on in rulemaking that are controversial and that lack a strong consensus within our industry. For example, the issue of hours of service for flight crews. I testified to this very Committee in 1999 that we hoped to have a proposal in Administration review by 2000. I don't need to tell you we've missed that goal.
We continue to struggle as we draft proposals to address issues such as the effects of cumulative fatigue, the appropriation limitations to apply when there's an augmented crew with a pilot added, or the impact that flying for the military or that other commercial flying has on a pilot's flight time. It is difficult to devise a scheme that reduces the complexity of the current rules and avoids the potential for repeated requests for interpretation, which is a problem that we face all too often today.
In the meantime, I can assure this Committee and the American public that the current flight and rest rules are providing an appropriate level of safety, and that operators and their pilots are meeting those regulatory requirements.
The aviation security rules give us another example of the kinds of complex issues we face in rulemaking. In 1987, the Office of Civil Aviation Security began a project to establish tighter security restrictions. During its development, the threat that faced civil aviation changed dramatically, starting in 1988 with the bombing of Pan Am 103 over Lockerbie, Scotland, in the early 1990s with the Gulf War, the bombing of the World Trade Center, a direct threat to civil aviation that was found in southeast Asia, and even the TWA 800 accident which initially affected the face of civil aviation security.
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In each of these individual cases, we took action to address the immediate threat. But the rulemaking that was ongoing needed to be expanded and at times redefined to address the constantly changing threat that we faced. No matter how much we improve process and efficiency, our rules will always be impacted by what's happening in the aviation environment, and at times they will be delayed while we work to develop sound public policy.
But as GAO has outlined, there are continued process improvements that we can and we know we must make. We've already reduced our top priority list from over 50, as Dr. Dillingham testified, to 38, the lowest it's been in years. That leaves us a little extra flexibility in the event we identify a new safety risk that needs to be identified through rulemaking.
I personally review the status of all of our top projects every week. We are involving other executives in our process earlier. We want to ensure that team members get guidance on the policy that we want them to establish through the rulemaking. We are clarifying the milestones that team members are expected to meet, and we're identifying deliverables so that the team members know when they've reached their milestone.
We're going to continue to pursue the improvements that have been recommended by GAO and some other improvements that you'll hear in the remainder of the testimony, especially from Mr. Bolen on behalf of the MAC.
Finally, I'd like to say just a word about the Aviation Rulemaking Advisory Committee, or ARAC. While I know you've heard many complaints that that is sometimes an inefficient process, we agree that that, too, needs to improved. But we also need to keep in mind, that we need input from our very technical community to ensure that we make the right kinds of rules. And we're going to work hard to increase and improve that process as well.
I look forward to the rest of the testimony today, Mr. Chairman, and we will be ready to answer any questions. Thank you.
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Mr. MICA. Thank you, and we'll hear next from Ed Bolen, who's Chairman of FAA's Management Advisory Council. Welcome, and you're recognized, sir.
TESTIMONY OF EDWARD BOLEN, CHAIRMAN, FEDERAL AVIATION ADMINISTRATION, MANAGEMENT ADVISORY COUNCIL
Mr. BOLEN. Thank you, Mr. Chairman, Mr. Lipinski, and other members of the Committee.
As you know, the Management Advisory Council was sworn in on September 18th of last year. Since that initial swearing in, we've been meeting on a monthly basis for a day or two at a time to, as directed by Congress, look at the FAA's rulemaking process.
As part of that, we have met with dozens of individuals and organizations familiar with the rulemaking process, and based on those interviews and our collective knowledge, we've concluded that the FAA's ability to keep up with the increasing demand for air transportation, and to take advantage of the rapid development of new technologies, is being compromised by the inefficiency and lack of credibility of the regulatory rulemaking process. Unless remedied, we believe that these difficulties will erode the safety, security and efficiency of the aviation system, and that the United States' global leadership position in aviation will be further diminished.
In our written testimony, we have outlined 11 formal findings of the Committee. I think those 11 findings can be summarized in three major points. The first is that the rulemaking process takes too long. According to the FAA, it takes five years to develop and publish significant rules. Yet some rules have languished for over a decade.
On our current process for completing rulemaking, under the current schedule, it would take the FAA 15 years to complete the pending rules. That's not adding any additional ones, that's simply complete the rule makings that are underway.
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In 1991, the FAA began the ARAC process, the Aviation Rulemaking Advisory Committee, to try to speed up the process and to improve the rulemaking process by getting all of the affected groups together early to work out consensus and to submit formal recommendations. Unfortunately, we have found that the ARAC process has not yielded any benefits in terms of faster rulemaking.
Because the rulemaking process takes too long, there is a perception within industry that the efforts are made to try to circumvent the rulemaking process through advisory circulars and internal guidance, through service bulletins and through airworthiness directives. This perception is strong enough that Congress specifically asked us to look into those specific issues.
With regard to airworthiness directives, which are, I might add, in essence real rules, we found through talking with industry that there really is no disagreement on 80 or 85 percent of the airworthiness directives that come from the FAA. On maybe 10 or 15 percent, there can be some argument as to the technical merits, and only 5 percent is there a feeling that the airworthiness directive was not based on a sound technical analysis.
However, with the advisory circulars and internal guidance, there is a sense that on far too many occasions, advisory circulars, which are supposed to be advice from the FAA as to one method of complying with the rule, that those in effect become rules because they become the only method of compliance. The service bulletins that Congress asked us to look at, we frankly did not find any instances of abuse by the FAA on that, because service bulletins are largely issued by industry rather than the FAA.
The third area that I think we spent a lot of time and it's worth talking about is obviously the cost benefit analysis area. Our finding in that area is that the process itself lacks credibility. The assumptions and the data that is used in the rulemaking process often does not reflect the real cost. The estimates of the FAA and industry often differ and sometimes by an order of magnitude.
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There is a perception within industry that from time to time, the cost benefit analysis is skewed to arrive at a conclusion that is predestined. And finally, that there is no mechanism by the FAA to go back and substantiate the process itself. There is no lookback or audit of the cost benefit analyses done, so there is no way to defend the process that was used.
In order to address these problems that are inherent in our findings, the MAC has made a number of recommendations. I'd like to highlight four of them. In order to reduce the time for rulemaking, we believe the current backlog must be reduced. Currently, the FAA has over 250 rules pending. We believe that the FAA needs to look at its list of 250 rules. It needs to prioritize it, in some instances, perhaps some of the rules that could be deemed insignificant and inconsequential could be fast tracked to be done. And the ones that are not going to be done need to be eliminated.
We believe that this can be accomplished. The FAA currently has a process that it uses where it has an A list and B list. The A list we believe should be rules that are only going to be rules that can be published within one year. We believe that the B list should contain rules that are expected to move to the A list, and that rules can only remain on the B list for five years before being eliminated. That would get away from that situation we have where rules are languishing out there for decades.
We believe that every rule should be assigned to a senior executive level employee, and that the rulemaking council should measure and track dwell time performance and report excessive dwell time to the executive supervisor who has responsibility for that functional unit. We believe the ARAC process should be overhauled. It needs to have on it someone from the FAA who can truly represent the organization, so that when a consensus agreement is brought to the FAA, new roadblocks are not thrown in its path.
With regard to the airworthiness directives and the advisory circulars I mentioned earlier, one of the keys to an airworthiness directive is that it is to be issued when there is an unsafe condition. However, there is no definition for unsafe condition. We believe there needs to be one. We believe that efforts should be made to ensure that advisory circulars are understood by everyone in the FAA to be advisory, and we believe that the FAA should use web-based technologies to facilitate the interpretation and implementation of rules.
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Finally, with regard to the cost benefit analysis, we believe that parties should come together before a cost benefit analysis is made, and they should talk about the assumptions and where debt is going to be collected from. And we believe in some instances, that unless there is a formal objection, the cost benefit analysis to rulemaking can be waived.
Finally, we believe there should be a lookback or an audit to determine whether the process is leading to credible results.
Thank you for the opportunity to testify and I'll look forward to answering your questions.
Mr. MICA. Thank you. We'll now hear from Marshall Filler, Counsel for the Aeronautical Repair Station Association. Welcome and you're recognized.
TESTIMONY OF MARSHALL S. FILLER, COUNSEL, AERONAUTICAL REPAIR STATION ASSOCIATION
Mr. FILLER. Thank you, Mr. Chairman, and good afternoon, members of the Subcommittee.
ARSA is an international trade association comprised of several hundred members, most of whom are certificated repair stations, who perform maintenance for air carriers and other operators of aircraft under Part 145 of the Federal Aviation Regulations. ARSA's primary mission is education, education on regulatory compliance matters. We do this in a variety of ways. We publish a monthly newsletter, and our first FAA approved training course, Regulation 101, has been taught to over 9,000 representatives of industry and government.
Sarah McLeod, who is the Association's executive director, is actually in Australia today teaching that course at the invitation of the Australian Civil Aviation Safety Authority.
In the interest of time, I would like to summarize and just say, Mr. Chairman, between Ms. McLeod and myself, we've seen this rulemaking process from a variety of different perspectives, inside the FAA, as chair and assistant chair of ARAC trade association executive, we both represent private clients, I've represented other trade associations, and also I've been on the Subcommittee, as you mentioned before.
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So we have been down in the weeds, and we've also been at the policy levels. Hopefully we can share some perspectives with you about that.
I will say that when I was at the FAA in the mid-1970s doing rulemaking functions, it was a much simpler time. I certainly agree with statements made by Mr. Lipinski about all the complexity that's been injected into the rulemaking process since that time. So we're very pleased that the Subcommittee is holding these hearings.
I think everybody would agree that many of the requirements that have been imposed on all administrative agencies, including the FAA, are pretty well known. Among the more obvious is the Administrative Procedure Act. So the FAA must follow the APA. They must also have a statutory basis for everything they do, whether you provide that to them specifically or they use their general statutory authority.
And all of the other things, some of which were imposed by Congress, Mr. Oberstar alluded to one of them in his cost benefit discussion before. Some of them come in through executive order, many come in through legislation. But the sum total is that obviously does slow down the rulemaking process quite a bit. I don't think that the FAA can be faulted for that, especially when, according to the GAO report, the agency's record was comparable, at least in speed, to the other agencies that they looked at.
I think it is clear, though, that this process is terribly inefficient. I think that if efficiency experts were looking at it, they would advise us all to scrap it. But that's not going to happen. So we have to make the best of a bad situation.
I think it's been mentioned here about the role of controversy in rulemaking. That's absolutely true. It's something that we call the politics of aviation safety. And it's not just the FAA that makes those decisions, although they have the statutory responsibility. Obviously the Congress is involved, the GAO is involved, the Safety Board is involved. The DOT Inspector General is involved. Sometimes they get pressure from the media. So there are an awful lot of people who are weighing in on the process.
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I personally think that a lot of this has changed since the passage of the Airline Deregulation Act. I don't know that that's necessarily the cause and effect, but at least that's been my observation.
Another problem is that the FAA could use some more resources, but I don't think this Committee, being an authorizing committee, is in the position to give it. Obviously you have to deal with the appropriations committee just like the FAA does, and they are controlling the purse strings. So that lends further inefficiencies to the process.
Having said all this, there are some things that I would like to see definitely changed. There's a lot of rapid turnover inside the FAA staff and a lack of continuity results. And I think it's very important that we train people involved in rulemaking. The GAO said that over 80 percent of the people that do rulemaking in the FAA have less than two years of experience outside the agency in this process. And I think that needs to be addressed through training.
Our focus is on quality. We are very distressed that the FAA has approved a rewrite of the repair station rules, when they haven't in our opinion completed the job. And we're focusing on quality, even though it's been 25 years that they've been working on this.
Some of the things I would echo what Ed Bolen said. I won't mention them again, but I will just add to what he said. When a rule is poorly drafted, we see that similarly situated companies get treated differently by their local inspectors. So whereas one company may be able to do something, another company will be told by their inspector that they can't. And that inconsistency and lack of standardization undermines the credibility of the FAA.
There are situations where we've tried to fix rulemaking through the issuance of policy or guidance. That doesn't work very well, because the rule takes priority. We may try to fix things through issuing guidance, but we don't always keep that in mind that under the law, it's the rule that takes precedence.
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I would strongly recommend, Mr. Chairman and Mr. Lipinski, we would love to see FAA legal interpretations put on the FAA web site. The agency's done a good job of putting a lot of good information on their web site. You can't get legal interpretations on their web site. And I'm distressed and disappointed about why that doesn't happen. It should be a fairly easy thing to accomplish.
We do see some rulemaking outside the APA. Mr. Bolen referred to some of that. We see some rulemaking by handbook bulletin. If I could just digress very briefly and give a golf analogy, when the body can't rotate to hit a golf ball properly, it compensates. The FAA has compensated for the difficulties in the rulemaking process by regulating through handbook bulletins, which get issued without meeting APA requirements.
So the agency may direct their inspectors to go down and look at their repair stations or their carriers and say, make sure they have a procedure to address suspected unapproved parts. But there's no regulatory basis for that procedure. So you have this conflict, this tension that often results from this desire to do regulation through policy because it's so hard to do it through rulemaking.
In conclusion, I would like to say that our one central recommendation is to have the FAA handle rulemaking through a centralized body. We'd like to see that in the Office of Rulemaking. We'd like to see the Office of Rulemaking not only staffed with procedural specialists and technical writers, but also staffed with technically competent operations, airworthiness and engineering personnel that are responsible for rules and nothing else.
Thank you very much, Mr. Chairman.
Mr. MICA. Thank you, and without objection, your entire statement will be made part of the record.
Ms. Friend, we are going to have to recess here until about 20 after the hour, then we'll give you a full five minutes for your statement. We'll stand in recess until 20 after the hour.
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[Recess.]
Mr. MICA. The Subcommittee will come to order.
Our last witness, and we apologize for the delay, is Patricia Friend, Secretary Treasurer, Transportation Trades Department. Welcome, and you're recognized.
TESTIMONY OF PATRICIA A. FRIEND, SECRETARY-TREASURER, TRANSPORTATION TRADES DEPARTMENT, AFL-CIO
Ms. FRIEND. Thank you, Mr. Chairman. I am the Secretary-Treasurer of the Transportation Trades Department, AFL-CIO, as well as the International President of the Association of Flight Attendants.
Thank you for this opportunity to address the Subcommittee about the FAA's rulemaking process, and what we believe can be done to improve this often frustrating, unproductive and very time consuming process.
The rulemaking process at the FAA is slow, inefficient, and it is weighted heavily in favor of the airlines and manufacturers. Despite Congress' attempt in 1996 to expedite the rulemaking process, by setting deadlines for initiating or completing rules, we still wait years for final rulemaking, or even a response to our petitions.
Let me give you a few examples. In 1998, the FAA announced a change in policy that would allow new aircraft design or any increase in existing design capacity to be certified for flight, using analysis of data from past tests, rather than conducting a full scale test of the new model, as required by FAR 25.803. By changing the policy, the FAA lessened the burden of the rule, thereby changing the intent of the rule. This was done without notice or comment as required by the Administrative Procedures Act.
In bypassing the normal process, the FAA's new evacuation certification policy allows manufacturers to make changes in aircraft that are no longer subject to the requirements of a performance test, thus making actual fare-paying passengers the first tests subjects in a real evacuation emergency.
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For over 10 years, the FAA has delayed a critical flight safety rule to establish minimum rest requirements for pilots to ensure that they do not fly fatigued. The FAA suggests that these rules are badly in need of revision. In 1990, the Air Line Pilots Association petitioned the FAA to revise these rules to prevent pilot fatigue. The FAA established an aviation rulemaking advisory committee to develop recommendations for regulatory revision.
As a result, the FAA published a notice of proposed rulemaking in December of 1995. Comments from interested parties were received by the FAA in June of 1996. Now, five years later, the FAA still has taken no action on this critical aviation safety issue. The FAA has made repeated promises to both Congress and to Transportation and Labor that there would be quick action on the NPRM. Such inaction is inexcusable and demonstrates that the agency is simply not fulfilling its safety responsibility.
Transportation Trade Department affiliates strongly support mandating collision avoidance equipment, known as TCAS-II, for cargo aircraft. TCAS has been recommended by ALPA, the National Transportation Safety Board, the International Civil Aviation Organization, and the Joint Aviation Authorities Bureau. In AIR-21, Congress mandated TCAS equipment be installed not later than December 31st, 2002, on cargo aircraft with a maximum takeoff weight of 15,000 kilograms or more.
On June 27th of last year, the FAA finished working on an NPRM to require TCAS on cargo aircraft. For over one year, the NPRM has been tied up in the Government coordination process. Not only do we not have a final rule, even the notice of proposed rulemaking has yet to be published.
In order to improve the FAA's rulemaking process, we recommend the following changes. The very first priority should be to carefully evaluate the role that ARAC plays in the rulemaking process. It is our belief that the Congress and the American people have lost oversight of the workings of this committee. Not only does ARAC have tremendous control of the process, but ARAC procedures are tailored to stress the budget and thus limit the participation by public interest groups and other organizations with limited resources.
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As a result, the ARAC system is out of balance. It is dominated by industry representatives whose goals may well be at odds with the public interest. Working group meetings, which are closed to the public and for which no detailed minutes are kept, must be reopened to public scrutiny.
There is a continuing need for advisory committees to offer the FAA background information on pending issues and rulemaking. However, ARAC is more than just an advisory body. The FAA now relies heavily on ARAC to develop, do cost analysis and draft rule language. In order to bring legislative responsibility back to the system, the FAA should limit input from the advisory committee to advice, not development of complete regulatory packages.
We believe that this change would help to prevent recommendations that are contrary to the public interest from being pushed through by an industry majority and it would improve the ability of all groups to fully participate in offering advice and input to the FAA.
Second, the FAA must make the timely completion of rule making actions a priority for the agency. And the FAA must write comprehensive regulations that clarify in detail the purpose and the intent of the rule. Most important, the rule should contain the procedures that would be followed to demonstrate compliance. The FAA must hold senior management accountable for fully developing the basis for rulemaking. Abandonment of the Government responsibility to any committee or other outside group debases the technical and managerial integrity of the FAA.
The FAA should publish notice in the Federal Register of any petition within six months of receipt of a petition. This would promote timely and responsible action to either initiate rulemaking or to deny the petition, as well as to provide the general public an update on its progress.
In conclusion, we believe that it is time to perform a through management review and update of the FAA's rulemaking process. This review should identify up to date managerial procedures necessary for developing timely, comprehensive and accurate rulemaking. These procedures must be implemented, and the FAA provided with the training and the budget to assure the safety and efficiency of the aviation system.
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We thank you for allowing us to testify at this very important hearing today. And I'm happy to answer any questions that you have.
Mr. MICA. Thank you, and we again appreciate your patience.
I do have a few questions for some of the members of our panel. First, let me ask GAO, we have heard you describe the process that supposedly was reformed some years ago, and is now taking longer, I think you testified, to get out a rule, on average eight months additional time. And yet 50 percent of the deadlines have not been met.
You put up a chart that showed all of the measures that had been introduced that have sort of been halfway executed. What do you think it's going to take to get this process sped up and also to get some compliance with the intent of the reform?
Mr. DILLINGHAM. Mr. Chairman, I think FAA, when it first was thinking about the reforms and what was needed to make the process more efficient, identified all of the, if not all, certainly most of the things that needed to be done. So our position is, the first thing that ought to happen is, try to fully implement those initiatives that have been identified that would make the process more efficient. That would be the baseline from which we would start.
Mr. MICA. The other thing that seems apparent, it doesn't seem that anyone is held specifically accountable for keeping projects on schedule. Is that correct?
Mr. DILLINGHAM. I think probably FAA is probably in a better position to answer that question, if you don't mind.
Mr. MICA. Well, from your observation, though, you're reporting to us this reform has not worked. And we've heard several witnesses testify that they don't think there's accountability. Was it Mr. Bolen that recommended that someone specific should be assigned as—would that help?
Mr. DILLINGHAM. Yes, sir, we believe so. It's part of our recommendation, similar to what we're doing with delays and congestion, to have specific executive accountability for specific rules.
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Mr. MICA. Has FAA considered specific assignment and then again, some manner of holding someone accountable for seeing these rules through the entire process? Ms. Gilligan?
Ms. GILLIGAN. Yes, Mr. Chairman, let me answer your question in two parts. First of all, we do use a rulemaking team approach. But each team has a project leader. That leader is expected to work with the team to set the schedule, identify the milestones, and stick to that schedule or elevate issues to the management level if the team is running into problems.
Mr. MICA. One of the problems seems to be, again with this team structure, that that's not working because it's, again, the responsibilities are somewhat diffused. Have you considered, instead of having a team approach, again having a specific assignment, one individual in charge?
Ms. GILLIGAN. In some cases, the rules themselves are quite large and complex. They require technical expertise from a number of different organizations. We try to bring the necessary expertise together through the team, and then support that team with an economist who will do the cost benefit analysis—
Mr. MICA. If I go in and we take one of these rules that's been delayed for some time, maybe child safety seat or something like that, is there one person that we can say is assigned and responsible for that?
Ms. GILLIGAN. There's a project team leader who's responsible for the day to day of the rule, and there is an executive, or at least a senior manager who has organizational responsibility for guiding that team. Having said that—
Mr. MICA. But we still don't have a rule.
Ms. GILLIGAN. Right. Having said that, I would agree, we are closely looking at the GAO recommendations and at the recommendations from the MAC, to see how we can better align accountability and responsibility.
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Mr. MICA. But you know, look at the chart that Mr. Dillingham presented. This isn't exactly a new process of reforming this process. I think he showed 1970, 1980, 1990, there have been, I can probably count them on fingers and toes, numbers of attempts to reform this process and they don't seem to be working.
Ms. GILLIGAN. I think the reality is, each of them have made some improvements but we haven't solved the problem completely. Believe me, I couldn't agree with you more that there's more that needs to be done.
Mr. MICA. What's holding some of this up? The GAO report, for example, alluded to the fact that there may be as many as 20 signatures required within FAA before a rule can be issued. I think I read somewhere else that one rule was held up two months awaiting a White House announcement. All of these, there are different things that are holding up this process. Are there too many signatures? Do we not have some deadlines that must be met and adhered to?
Ms. GILLIGAN. Let me take your second question first. We have set milestones and we set schedules. But what we've realized is the milestones really aren't very well defined, and we're going to redefine them. Right now, for example, the first milestone is initial draft. That needs to be the point at which the team has reached as much consensus as it can, hopefully they've worked the whole rule, and if not, they're ready to elevate issues to decision makers, so that we have that done early in the process. That's one piece of it.
But in addition, there does need to be better alignment so that we're tracking who is sponsoring these rules and ensuring that they are making sure their team members are getting what they need to keep the rule on schedule.
Mr. MICA. Okay, we have how many pending rules under consideration?
Ms. GILLIGAN. On our top significant list, we have about 38 that are in active preparation now.
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Mr. MICA. If you brought me a chart, and did you bring us a chart, or can you provide us a chart with where each of those are?
Ms. GILLIGAN. Yes, sir, I can.
[The list of rulemaking top priorities submitted by Ms. Gilligan, may be found on page 84.]
Mr. MICA. And what's the most significantly delayed of those 38?
Ms. GILLIGAN. Well, off the top of my head I wouldn't know the one that's most delayed.
Mr. MICA. Oh, just give us, I mean, you had some on that pile obviously that are eight, ten years old, right?
Ms. GILLIGAN. A number of the rules that are identified in the GAO report are on that list. Although many of those have, even since the GAO completed its work, have started to move through the process. The security rules that were delayed went on display yesterday at the Federal Register. So it's a constantly changing set of priorities.
Mr. MICA. Right.
Ms. GILLIGAN. But we can provide the list.
Mr. MICA. Is part of the problem also getting a decision out of the different agencies. Are there interagency disagreements or interdepartmental disagreements that are also delaying the process?
Ms. GILLIGAN. Yes, sir.
Mr. MICA. And do you need a mechanism for someone to be an arbiter and step in and say, we move forward? And is that happening or why isn't it happening? It doesn't appear to be happening?
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Ms. GILLIGAN. Well, as I said even in my statement, and I think most of the members have acknowledged, many of the rules encompass important public policy changes. For example, we have a rule in the process to protect the use of certain information so that we would not take enforcement action against a pilot or an operator. We believe it will encourage the release of information that will enhance safety.
But within the Administration, there was very serious concern that a regulatory agency would agree not to take enforcement action. So we had to work with the Justice Department, and the Office of Management and Budget, to make sure that the Administration agreed that we were setting out the right public policy.
So we do run into those kinds of cases in some rules.
Mr. MICA. The other thing we heard testimony to today, you're sort of circumventing the process by putting out some advisory notices or bulletins, things of that sort. And they act in the interim, I guess, as some sort of rule. How do you respond to those charges?
Ms. GILLIGAN. With most of our rules, we do provide advisory materials that help an applicant understand what it would take to meet the rule.
Mr. MICA. But I'm thinking more in place of the rule or while a rule is being developed.
Ms. GILLIGAN. Well, all of our advisory material is based on some regulatory requirement. I think the concern is that the advisory material sets out a certain path that shows how to meet the rule's requirements. Sometimes our inspectors are not open to other alternatives that might also meet the rule appropriately. So consequently, they sometimes drive the applicant to do it the way the advisory material says it has to be done. The advisory materials aren't intended to be used that way.
If we get complaints about that, we review those, we try to educate the inspector, we make the appropriate determination. But there are a number of people throughout the industry who are troubled by the fact that sometimes an inspector can't see beyond the advisory materials to another alternative that would be perhaps more efficient or effective for that particular operator.
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Mr. MICA. Finally, you have, let me just give an example, this computer reservations system. Rules were scheduled to be updated in 1997, I understand, and the Department of Transportation has continually rolled over the existing rules, which date back to 1992. We don't have anything in place other than rules that are sort of obsolete, don't apply to the internet, which in 1992 probably didn't even exist as we know it today.
What are you doing to keep up with the technology changes in an instance like that, that demand that we have some guidelines for proceeding? And then also publishing a rule that is compliant with technological advances.
Ms. GILLIGAN. As you point out, the computer reservations system rule is an economic rule that's handled by the Department of Transportation. But we have certainly run into this. We have had to change our rules, actually there was legislation that accepted electronic signature, for example, to acknowledge that much of industry today works through an automated means. Our rules didn't accommodate that.
We are providing advice and guidance on how we can use automated record keeping rather than paper records, which our rules would currently require. It is always a struggle to stay up with quickly changing technology. So we do run into the same problem that the Department has suffered in that rule.
Mr. MICA. Thank you. Let me yield to Mr. Lipinski.
Mr. LIPINSKI. Thank you. Can somebody from the FAA tell me where are we with TCAS at the present time and why are we where we're at?
Ms. GILLIGAN. Yes, sir, it is in administrative review, as Ms. Friend testified. It was fairly well along in that process, and then as you are aware, in January, with the change of Administrations, there was a request by the White House to review all pending regulations by the new Administration.
That resulted in about a dozen of FAA's rules being brought back for review. All the other modes had similar kinds of numbers. I believe there is a bit of a backlog right now in trying to move those rules through the Administration process. But as Ms. Friend testified, there is an FAA proposal that's in that process now.
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Mr. LIPINSKI. Because it seems to me in fact that commercial airliners have had this for quite a while. It was in AIR-21.
Ms. GILLIGAN. Yes.
Mr. LIPINSKI. It wouldn't seem to me to be too difficult to put a rule together or realize how important Congress felt about this, since we passed it into law and it's a pretty simple law.
Ms. GILLIGAN. Right. Yes, sir, that is the notice. We do have a time line for the final rule. I believe that we will make the final rule deadline, even with this delay in the review process. We're very focused on that rule.
Mr. LIPINSKI. I have a letter here that I brought with me today that I'll be sending over to the Administrator very shortly, not in pertaining to TCAS, but I may now decide to send one on TCAS, too, but this pertains to the fatigue situation, one that you mentioned earlier, you were here and you gave us a specific date that we haven't met that.
And I understand that, but what concerns me about this, the fact that it's been delayed concerns me, but also, it sounded to me like you said today when you were testifying that the fact that we don't have a rule out on the fatigue factor in the work schedule, it sounded like you were saying that everything was perfectly safe, though. So I quickly came to a conclusion it didn't sound like we were going to have a rule pertaining to fatigue out very soon, or that it's going to be much different than what we have at the present time in regards to the duty hours and so forth.
Ms. GILLIGAN. Well, I didn't mean to give that impression. As I testified when I was here before, the framework that we have in place right now sets an acceptable level of safety. Because of the number of checks and balances in the system, we have flight limitations in a day, and in a 7 day period, which is a very narrow number of hours. We also have flight limitations in a 30 day period. We believe that that does provide for an appropriate opportunity for rest.
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Having said that, we are on the record that there are ways to improve this rule and those efforts need to move forward. Our dilemma is we are trying to make it less complex than the current rule. What we're finding is that this industry is so diverse that it is very hard to come up with a single set of requirements that can support operations and meet the safety needs as well.
We're going to do it. I'm not inclined to give you a date today. But we are going to do it, and I will certainly keep you and your staff informed as we move forward.
Mr. LIPINSKI. Is it necessary to come up with a rule that, once again, it sounds to me like you're saying you need to come up with a rule that fits all the situations in the aviation industry today and yet the aviation industry is so diverse. Wouldn't it be possible to come up with several different rules pertaining to different segments of the aviation industry?
Ms. GILLIGAN. Well, one of the things we set about to correct when we undertook a new rule on flight and rest was the fact that we have about seven different sets of rules right now. They are sometimes inconsistent with one another, and it's not always easy to explain why someone needs more rest in this environment and less rest in that environment. And so what we really set out to do was to define, what's the best set of rules for flight and duty and rest.
But we are running into the wall that you've just described, and we are continuing to struggle with that. So that's part of what we're trying to work out. Do we do more than one scheme, and if so, how do we articulate why it's okay to be different here and not there?
Mr. LIPINSKI. Would you, since I've been asking you the questions and you've been responding, would you care to respond to the charges that Ms. Friend made in regards to the fact that manufacturers and the air carriers seem to receive more favorable treatment than—she didn't say so, but I assume she was referring to the, more or less the labor portion of these rules?
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Ms. GILLIGAN. Well, I think her comments were specifically in the context of the advisory committee. Those are conversations that we've had with Ms. Friend and others in some detail. We've taken a number of steps recently to try to improve the ARAC process.
One of the things that was brought out was that oftentimes the subgroups or the issue groups meet in locations that are not convenient, and it causes members to pay for travel. We've clarified that the teams need to be meeting here in Washington. If there is a sound reason for them to meet somewhere else, they need to have teleconferencing capabilities, so that all of the members can take part and that the FAA get the input from all of the interested parties.
We've increased the representation of public interest groups on the ARAC just to try to balance the committee and make sure we're getting everybody's viewpoint in the process. We've also identified a small amount of funding to try to support the public interest groups, so that they can attend meetings if they are out of town and those kinds of things.
So we are mindful of the concern, if there were to be an imbalance, and we are trying to address that. And of course, while we prefer that the teams work to full consensus, if that's not possible, then we receive both the majority and minority advice. This is a committee that's providing advice to the Administrator, and ultimately it is FAA's responsibility to take that advice and treat it appropriately.
Mr. LIPINSKI. Whether or not Ms. Friend is correct in the charges or allegations she makes, I don't know. But I do know that there certainly is a perception in the aviation industry that what she says is an accurate description of what goes on. As I say, I'm not a judge, and I haven't investigated it that thoroughly, so I'm not going to take a position on it. But certain that is the image that a lot of people have. That's something that the FAA and the entire Federal Government bureaucracy should work on, to try to correct that.
Ms. Friend, the charges you made about the manufacturers and about the air carriers, two things that you talked about were the fatigue and also the TCAS. Are there any other examples you could give me that might help me better focus in on exactly what you're talking about?
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Ms. FRIEND. In relation to how difficult it is to get a response to a—
Mr. LIPINSKI. In relation to how the rules that come forward are more favorable to the air carriers and more favorable to the manufacturers, and in general more favorable to management than it is to labor?
Ms. FRIEND. I believe my testimony about the imbalance, if you will, being tipped in favor of manufacturers and industry was in relation to the ARAC process. That in fact, that process is dominated, and what that allows to happen, because the ability of public interest and the labor organizations to participate is restricted, just by the nature of the way the meetings are conducted and where they're conducted.
Mr. LIPINSKI. Okay, I understand where you're going there. But can you give me concrete examples of rules that came forward, based upon that process?
Ms. FRIEND. Oh, that came out of that process.
Mr. LIPINSKI. If you can't—
Ms. FRIEND. I can't. But I'd be happy to provide it to you, but right off the top of my head, I'm trying to remember which rules actually came out of the ARAC process. I can tell you some of the struggles we've had, specifically we had a very long and protracted struggle over the issue of whether or not a cabin crew member should be required to speak a certain level of English as are cockpit crew members and ATC controllers. That is something that we finally wrested out of the process and has disappeared somewhere into the FAA building, never to have been heard from again.
We're additionally constantly battling the issue of making changes that we believe really degrade the level of safety, changes over what is the minimum allowable space in an exit row for purposes of evacuating an aircraft, debates over increasing the amount of space that a manufacturer has allowed to build into an aircraft design between exits. In other words, can we reduce the number of exits.
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These are the kinds of issues that constantly come forward in this process, and why we believe it is so critical and so important that public interest groups and the people representing the workers on the aircraft are given every opportunity to participate in the ARAC process. But even more importantly, why these working groups should not be allowed to work in secret. And why they should keep a record of what they discuss, so that we believe the traveling public and certainly the Congress has a right to know what's being discussed in these working groups.
Mr. LIPINSKI. Thank you. Do we have any rebuttal here from the FAA?
Ms. GILLIGAN. Well, just so that we're clear on the process, there is a public meeting required for all advisory committees, and all of the final decisions around recommendations to come to the Administrator are discussed at the advisory committee's public meetings. Similar to other advisory committees, our committee tends to create working groups. Working group meetings are not required to be open, although in many cases the working group decides that they will be, and notice is given. But the real recommendations and the decision making of ARAC is all done in public meetings, advance notice is provided, and the opportunity for even non-ARAC members to attend then to be considered.
Mr. LIPINSKI. Thank you. Thank you, Mr. Chairman.
Mr. MICA. Thank you. The gentleman from Michigan, Mr. Ehlers.
Mr. EHLERS. Thank you, Mr. Chairman.
I apologize, I was not able to hear the testimony, I was in another meeting and got here late. So my questions may not be as intelligent as I would like them to be. In fact, they will be quite brief.
Ms. Gilligan, you strike me as a very intelligent, competent person. Every time we have someone from FAA testifying, we have that situation. But I'm bothered, almost every time we are dealing with a negative report of some sort or another, as we are here. I just wonder what happens between you and the rest of the world and why we develop these problems. I'm not picking on you, I'm just seeing a general pattern.
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It just bothers me very much that an agency that's dealing with one of the fastest growing industries in the world, and certainly the fastest moving industry of the world, literally, seems to have a regulatory and decision making process that is glacial in nature. And I don't know how we can improve that. But one thing that strikes me, when talking about the regulations during the discussion here, it seems to me, it sounds very much like a command and control type of operation, which the EPA has been at various times and also proceeds very slowly.
We've also had some administrators who took a different approach and said, let's simply tell the regulated community or the industry what the goals are and let them decide how best to meet that. I'm a great believer in common sense. I worry a great deal about trying to specify every single aspect of what has to be done and how it has to be done.
Would it be appropriate to use a more open approach and simply put out requirements? To use the example given a moment ago by Ms. Friend about exit rows, do we actually have to specify every aspect of the exit rows, or can we simply say, you have to be able to exit 47 passengers out of each of the exits within 2 minutes and let the airlines decide how they're going to do it and prove to you that they are able to do it?
I'm sure you get what I'm going at. Is there some way we can change the process to simplify it, to make it more fast, more reasonable and also give the regulated community more say in how they're going to do it in order to meet the safety objectives that you're setting out?
Ms. GILLIGAN. We do try to set performance standards as often as we can, because we agree that we at FAA don't have the corner on the market for good knowledge or technical expertise. So we do try to set, as often as we can, what the outcome is, and then we do work with the operator or the applicant for them to demonstrate compliance.
There are some cases, though, where we still believe that we need to set the specific standard, so that they can be measured against them, so all the applicants or all the operators are doing it the same way. But we always are looking for new ways to try to make this process easier. When we can reasonably pursue a performance standard, then that's the approach we take. We're also trying to use plain language more often, try to make the rules inherently more understandable, so we aren't faced with a lot of interpretations or requests for explanation after the rule is out.
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Each of those changes makes some improvement. But I think as we heard earlier, every rule has its own set of unique elements to it. We haven't yet found the solution that really solves the problem across the board.
Mr. EHLERS. I certainly agree with that, and I can understand the complexity of it. But I hope that you can speed the process up and make it more sensible.
I was struck, too, a few years ago, after the Value Jet crash, when we got into the investigation of that, and it seemed that most of the concern of the FAA inspectors had been whether or not the papers were filled out properly, and no one had really checked the competence of the subcontractors that were performing the maintenance on their jets. It seems to me that the agency had simply lost sight of what their real objective is, and that is to make sure the work was done properly. But we're simply checking whether the people who had done the work had filled out the forms properly afterwards.
You don't have to answer that, but you see what I'm getting at.
Ms. GILLIGAN. Yes, sir, I understand your concern.
Mr. EHLERS. Let's define our objectives and let's try to reach that point as quickly as we can.
Ms. GILLIGAN. Yes, sir, we will certainly do that.
Mr. EHLERS. I yield back, Mr. Chairman, thank you.
Mr. MICA. A couple of final questions here. The ARAC process, we've heard some complaints about that and we've heard some reforms that have been supposedly instituted. Do you feel from what you've heard, Ms. Friend, that those are adequate?
Ms. FRIEND. No. Unfortunately, while they may sound good, they're not working that way. Ms. Gilligan said that the committees have been advised to meet in Washington and only if they find it necessary to meet outside Washington that they should provide teleconferencing. The fact is, the reality is that they may have been told they should meet in Washington, but all the industry has to do is request to have it some place else, and permission is granted.
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So in fact, nothing has changed.
Mr. MICA. And you said that the working groups meet in secret?
Ms. FRIEND. Yes, there are no records kept of the working group meetings and any actions that they take.
Mr. MICA. Ms. Gilligan, let me ask you about, the working groups as you described them, with a team leader, it sounds like they have quite a bit of responsibility and authority in developing the rule. You've heard the comments about not keeping records. I'm not certain, is there a disclosure, is there a log kept of contacts of folks who lobby on these issues with the team members and the team leader?
Ms. GILLIGAN. I'm afraid I've confused things using the word team in a couple of different contexts. The group that Ms. Friend was talking about is in the advisory committee setting. In that case, any member of ARAC can take part in the public meetings at the issue group level.
Mr. MICA. Right, but your team that's developing the rule?
Ms. GILLIGAN. Right. Our internal team is quite clear on their responsibilities, that when they are involved in rulemaking, they cannot have ex parte communications with anyone who's interested in the rule. That is a requirement that we follow, I will tell you, quite rigorously. In fact, I think as we look at the recommendations from the MAC, there is some concern that perhaps we are too rigorous.
But I think the team members, and even the management executives involved in that issue, are quite careful about not having ex parte communications with interested parties. If we do find ourselves in that situation, we make a record of that and put that in the docket.
Mr. MICA. That was my question.
Ms. GILLIGAN. Yes.
Mr. MICA. Well, somehow it seems that we ought to find a way to expedite the process. You on one hand have testified that you've instituted a number of reforms, but again, they don't seem to be having the desired effect. You said you had a list of 30 plus major pending rules.
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Ms. GILLIGAN. Yes, sir.
Mr. MICA. And does your schedule include completion dates for each project, completion dates for each rule?
Ms. GILLIGAN. Yes. The team establishes a schedule for the notice phase.
Mr. MICA. Right.
Ms. GILLIGAN. And then we have the comment period and then we use the statutory deadline of 16 months after the close of the comment period as the date for the final rule. So we do establish those schedules.
Mr. MICA. Do we need to look at tightening that 16 month period?
Ms. GILLIGAN. Well, sir, I think, again, depending on the complexity of the rule, we can get several hundred comments on any particular notice. It takes a good deal of time to really think our way through that proposal and change it, if that's appropriate. I'm not sure the 16 month time period is the problem.
Mr. MICA. Part of that process goes to the original publication. The security rule, when did that start? When did you start working on the security rule?
Ms. GILLIGAN. Actually, the project was begun in 1987.
Mr. MICA. Okay, and yesterday?
Ms. GILLIGAN. The final rule was put on display at the Federal Register.
Mr. MICA. Well, again, I'm trying to find some way that we can press the process, have everybody have a hearing and opportunity to be heard, participate in the process, have the whole thing as open to the public as possible, and interested participants.
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OMB and DOT's role in this, are they delaying the process, Mr. Dillingham? Did you observe that? Is that a problem? What's your take on OMB's and DOT's role?
Mr. DILLINGHAM. Part of our research indicated that in fact, when rules did go to the DOT that that was part of the delay. And we in fact asked OMB what they thought about that in terms of whether they were part of the delay or not, because I think in AIR-21, part of the mandate was to not send as many regulations to DOT and to set a time limit on the time that they would be at DOT.
And when we talked to OMB, they said they couldn't comment on it, because as far as they knew, all the rules were still going through the same process as far as being at DOT, as before the mandate was issued. So the bottom line is, the best of our information indicates that yes, that is part of the delay in the process.
Mr. MICA. Ms. Gilligan, anything we can do or you've tried to do to speed that process up? You just put in requests? And do you have time lines for say, review in those areas?
Ms. GILLIGAN. Yes, sir, we did of course consult with the Office of the Secretary after the language in AIR-21 suggested we should rethink their role in the review. Part of the legislative language, though, did provide that the Secretary's office would still review major policy questions or significant rules. And many of the rules we're talking about here today certainly fall into those categories. Dr. Dillingham is correct, that a great deal of our rulemaking still goes through that process.
Having said that, I think that we can continue to work to improve that. Both the Office of the Secretary and OMB do provide time periods in which they expect to complete their review. The statute required OST review within 45 days, and I believe the OMB requirement is no more than 60 days. I think we can put more rigor in the system and work with those offices to stay within their time lines as well.
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Mr. MICA. Do you feel that you have the authority, the legislative authority, to handle those time frames and get some compliance with handling those time frames or is there something Congress needs to do? Is that authority within the Secretary and the Administrator right now to keep adherence to those time lines?
Ms. GILLIGAN. Yes, that's right.
Mr. MICA. There's enough ability in law vested in the Secretary and the Administrator to carry those things out?
Ms. GILLIGAN. Yes, sir.
Mr. MICA. Now, there may be something, OMB is a little bit out of your purview.
Ms. GILLIGAN. Yes, sir, I would say that the legislation that you did provide in AIR-21 gives us a good framework and that we can work with the Secretary and the Administrator to ensure that we are being as efficient in the review process as we possibly can be.
Mr. MICA. All right. Any other comments, Mr. Bolen? Anything you wanted to add as we conclude here?
Mr. BOLEN. Our written testimony goes into much more detail about our recommendations. But we will be meeting tomorrow as a group with the Administrator. She's expressed a strong interest in trying to work with us to turn our recommendations into reality, and on implementation ideas. So we're enthusiastic about that, and look forward to continuing to keep the Subcommittee apprised of the progress we're making.
Mr. MICA. Mr. Filler?
Mr. FILLER. Mr. Chairman, just one final comment. And that is, whenever the FAA issues a document, whether it's a rule or a piece of guidance material, almost invariably, it's been addressed in the past. And what my experience has been is, there may be 10 or 12 or 15 documents on an issue that the FAA has written. And most of them may be consistent, but maybe you have 20 or 25 percent of them that are inconsistent. That's what feeds this lack of standardization process.
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What I would like to see the FAA do, and I don't know if they do it today, is when they are addressing that issue again, collect all of that guidance material, that's been issued in the past, so that the people who are currently working on that issue are aware of what's been said before. So, they can deal with whatever inconsistences may be out there in a more uniform way.
My sense is that doesn't happen. Because we see issues recurring every several years. When I usually see them, it's because a company is being told by an FAA inspector that they can't or they must do something. And when you get into it, you find out that usually the root cause is inconsistent rules or inconsistent guidance material.
Mr. MICA. Thank you. Ms. Friend, did you have any final comment?
Ms. FRIEND. We spent a lot of time talking about the ARAC process but I don't want to lose sight of one of the other issues that really concerns us, and that really is just the timeliness of a response when we submit a petition on an issue, about how long it takes, not even talking about the rulemaking process, but how long it takes just to hear from the FAA to either deny the petition or tell us that they are going to start the rulemaking process. We would like to see them be more responsive to petitions.
Mr. MICA. Thank you. Ms. Gilligan, anything in closing?
Ms. GILLIGAN. Just actually in response to Mr. Filler. Automation obviously has made a difference for us as it has for the rest of the world, and we are revamping the FAA web page. The kinds of materials that we will now be able to access on FAA's web page are just the kinds of things that Mr. Filler has mentioned in both of his statements.
We will be putting counsel's interpretations of rules into a database that will be accessible, and we are building links among all of our guidance materials and the rules, so that when someone looks at a rule, they can find all of the background materials for those very reasons, so that all of us are using the same framework of information as we are applying the rules.
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So I think you will see improvement in those areas as well, as we enhance our automated capabilities.
Mr. MICA. Well, I want to thank our panelists, thank you, Mr. Dillingham, for your report.
Did you have any additional questions, Mr. Lipinski?
Mr. Lipinski moves that we leave the record open for a period of two weeks for additional comments and submissions to the record. Without objection, so ordered.
Again, I thank each of our panelists for being with us, and GAO for their work. There being no further business before the Aviation Subcommittee, this hearing is adjourned.
[Whereupon, at 4:15 p.m., the subcommittee was adjourned, to reconvene at the call of the Chair.]