One Level, Part 2: If you've Seen One Operator, You've Seen One Operator

[from the archives 2/21/2014] by Joseph F. Corrao

In the previous issue of General Aviation Security, we observed that aviation operations vary, so aviation regulations also must vary to achieve a single level of safety or security.  “If one rule is applied across the board, the result will be various levels of safety caused by applying the same rule to various conditions and circumstances.  When regulations are intelligently tailored to the segments of the industry to which they apply, there will be several different regulations, each applying to a segment of the industry that differs in a meaningful way from other segments, resulting in one level of safety.”  

There is a conundrum lying just beneath John Adams' assertion that “We are a nation of laws and not of men.”  To achieve fairness across the board, regulations should apply equally and consistently to all operators; yet to achieve equal results across operations we should tailor regulations to the unique characteristics of each operation.  The goals of fairness and “one level” of safety or security may seem at times to be in conflict.  

We resolve this apparent conundrum, in part, by “bucketing” the regulations in relationship to classes of operations that are alike in terms of the goals served by the regulations.  As we noted in the previous issue, to protect the flying public, we have three main “buckets” of regulation that substitute the judgment of regulators for that of pilots and operators depending on the degree of operational sophistication and control wielded by the flying public.  Our regulations recognize broad discretion in the hands of pilot/operators who fly themselves and their family and friends in non-commercial, non-scheduled operations, on the theory that such pilot/operators are highly motivated to protect themselves, their loved ones and their friends.  We limit the pilot/operators' discretion somewhat when the flight is commercial non-scheduled on the theory that commercial motives may encourage inappropriate risk-taking, yet the same commercial interest gives persons purchasing non-scheduled transport a measure of control over the operation and thus a means to protect themselves from obvious risks.  We most broadly substitute the judgment of bureaucrats for that of pilots and operators with regard to commercial scheduled operations on the theory that, once the ticket is purchased, the flying public has little understanding of airline practices and procedures, little knowledge of the attendant risks, and little practical ability to exercise operational control in the service of safety or security.  

In the main, general aviation (generally non-commercial non-scheduled operations), charter or “air taxi” (generally commercial non-scheduled operations) and airline operations (generally commercial scheduled operations) are the operational “classes,” and 14 CFR Parts 91, 135, and 121 are the corresponding regulatory buckets into which our aviation regulations historically have been organized.  The same logic applies to aircraft manufacturing and certification, maintenance and maintenance certification, pilot training and pilot certification and the myriad of aviation activities regulated by the Federal government.  The clarity of this arrangement has been muddied in recent years as political considerations have provoked developments like Part 91 Subpart K, which imports into Part 91 rulemakers' judgments appropriate to Part 121 to address operations that purport to be non-commercial, yet resemble charter conducted in a style often reminiscent of airlines.  

This “class and bucket” approach is not completely successful in resolving the apparent conflict between fairness and “one level.”  To achieve fairness, all members of a class must be treated equally; to achieve one level, regulations must be tailored to the particular operation.  As Subpart K demonstrates, some operations defy neat classification; application to them of all the regulations in a particular bucket may be neither fair nor safe.  

To bring our aviation safety regulations into as much harmony with the goals of fairness and “one level” as may be possible in our imperfect world, 14 CFR sections11.15 and 11.61 et seq. enable every entity regulated by the Federal Aviation Administration to apply for an “exemption” from any regulatory provision or requirement.  The Transportation Security Administration has the same authority pursuant to 49 U.S.C. section 114(q), but to date TSA has failed to promulgate regulations equivalent to FAA's 14 CFR Part 11 to implement TSA's statutory exemption authority.  

Consistent with the logic of the “fairness versus one-level” conundrum, under 14 CFR section 11.81, an applicant for an exemption from an FAA regulation must explain “why granting [the] request would be in the public interest; that is, how it would benefit the public as a whole,” and “why granting the exemption would not adversely affect safety, or how the exemption would provide a level of safety at least equal to that provided by the rule from which [the applicant] seek[s] the exemption.”  The first element of the argument, “public interest,” represents the applicant's opportunity to explain how he/she is different from other members of the class of pilot/operators targeted by the regulation in ways that make the regulation a special burden on the applicant or deprive the public of some benefit that the applicant would be able to confer on the public but for the objectionable regulation.  The second element of the Section 11.81 argument represents the applicant's opportunity to explain how applying a different requirement to the applicant's special circumstances, or waiving a requirement completely, will yield “one level” of safety across the class to which the applicant otherwise belongs.  Presumably the same analysis should be presented to TSA by an applicant seeking exemption from a security regulation, but because TSA has failed to promulgate regulations defining its exemption procedure, we cannot say what TSA looks for or how it decides whether to grant or deny exemption requests.  

In concept, FAA's exemption procedure is an elegant solution to the “fairness” versus “one level” conundrum.  Exemptions enable FAA to apply intelligently written regulations consistently to appropriately identified classes of operators, thereby achieving fairness, while enabling operators to show how, in ways relevant to particular regulations, they are not like the rest of the class and ought to be treated differently to achieve “one level.”  Although TSA has the same exemption authority, we cannot say that TSA's implementation is as elegant as FAA's simply because TSA has not yet promulgated its exemption regulations.  Until TSA does so, potential applicants for exemption from security regulations may best be served taking FAA's Part 11 as a model; at least, its a place to start.

Citations

1. “One Level,” General Aviation Security (Winter 2013), p.6, at p.60.
2. Id. at p.8
3. This hasn't stopped TSA from granting exemptions; see, e.g., “Grant of an Exemption from the Requirements for the Recurrent Security Awareness Training to occur in the month the Recurrent Security Awareness Training is due, as indicated in 49 CFR 1552.23(d)(1)”, TSA Docket No. TSA-2004-19147 (“In the Matter of Flight Training Providers and Individuals Subject to 49 CFR part 1552”) (June 8, 2007), and “Exemption From Transportation Worker Identification Credential (TWIC) Expiration Provisions for Certain Individuals Who Hold a Valid TWIC”, 77 Fed. Reg 36406 (June 19, 2012).  However, it means that the public has no knowledge of the procedures TSA uses to receive or evaluate exemption requests, nor of any standard TSA may use to decide whether to grant an exemption request.  Indeed, it seems likely that most of the affected public is unaware that TSA even grants exemptions and has no idea how to initiate TSA's  consideration of an exemption request.  
4. Admiration for FAA's exemption procedure must not be mistaken as admiration for the cumbersome and sophomoric, so-called “plain language” question-and-answer format in which 14 CFR Part 11 has been rendered in its most recent revision, nor for the FAA's practice of publishing summaries of exemption requests in the Federal Register, but not summaries of FAA's decisions on those requests.