President’s Position: Regulatory delays

A fourth branch of government is emerging

July 1, 2013

Craig FullerDuring most AOPA Town Hall gatherings, I remind participating members that AOPA’s founders created our organization in 1939 largely because they feared that a government about to enter a world war just might regulate general aviation out of existence. Nearly 75 years later, our mission is grounded in similar concerns—raised not by the prospect of war but by the growing power of regulatory agencies, many of which operate with increasing autonomy and minimal oversight.

I recently came across this comment: “It would be a bit much to describe the result as ‘the very definition of tyranny,’ but the danger posed by the growing power of the administrative state cannot be dismissed.”

This comment comes not from just any Washington, D.C., pundit. These are the words of John Roberts, the chief justice of the United States Supreme Court. What’s more, they appear in a dissenting opinion where the majority of the court determined federal agencies have authority to determine their own jurisdiction, a power which some believe should belong to Congress.

I found the quote in a thoughtful article by law professor Jonathan Turley about a wide range of areas in which regulatory reach is expanding. While the article didn’t focus on general aviation, it certainly could have.

Increasingly, it is regulators, not Congress, making rules that affect our GA community. And while membership in the General Aviation Caucuses in the House of Representatives and the Senate grow week after week, there is no counterpart among the agencies. Why does it matter? Well, according to Turley, if you go back to 2007 when we have all the statistics, Congress enacted 138 public laws. However, there were 2,926 rules finalized by federal agencies in that same year.

Of course, that’s only one way to look at the impact of the regulators—or, as the chief justice describes them, the “administrative state.” We’re just as concerned about what doesn’t happen! Long delays, administrative inaction, and the choice to simply ignore the concerns of pilots and aviation consumers are equally disturbing.

There is a notion among regulators that change means risk. Yet, the world around us is changing rapidly, and increasingly it is the resistance to change that brings real risks. Not all that long ago, the second leading cause of fatalities in GA accidents was flight into known terrain. Then technology became available in GPS units that could warn of terrain and obstacles. Yet it took years to persuade regulators that the risk of failure in these devices was sufficiently low for certification to be granted. In the interim, pilots took noncertified equipment into the cockpit, and flight into known terrain declined considerably. Hence, in this very real example, the real risk was in regulatory delay.

Light Sport aircraft manufacturer Icon has developed a spin-resistant wing. Icon is seeking a weight waiver that would allow it to produce the aircraft using this technology. Yes, there are issues to consider. But, rather than give Icon an award for design work that is aimed at preventing the leading cause of general aviation fatalities—loss of control—the FAA, after a year, is asking for “more information.”

And, in a choice I find simply mind boggling, there are those in the FAA determined to stick with a pre-tablet regulatory decision to restrict air traffic information available to pilots who equip their aircraft with ADS-B In. Prior to the iPad coming to market, it was reasoned that restricting important safety information would be an incentive to equip aircraft with ADS-B Out technology, which will be required in 2020. Now, the iPad is providing many GA pilots with navigation, weather, and traffic information in the cockpit. However, some regulators seem unwilling or unable to change their thinking to match the way we really fly. Despite the recommendations of an advisory group from the aviation community, regulators have refused to change the policy of limiting access to important safety information. So pilots are receiving only some of the traffic reported as they fly along with ADS-B technology—years ahead of the ADS-B Out requirement.

Our AOPA team actively participates in dozens of regulatory groups, councils, and committees. It is in these groups where we work with regulators and our fellow stakeholders on vital issues such as the transition to unleaded fuel, protecting ELTs, ensuring knowledge tests are relevant, Part 23 reform of aircraft certification rules, and the all-important third class medical waiver. In doing this work it is increasingly clear that a shift of authority to this so-called administrative state is a growing reality. Increasingly, we find ourselves deeply engaged in the details of regulatory action. And make no mistake; the action—as well as inaction—will touch all of us in the GA community. It is, in fact, the kind of tyranny about which our founders were most concerned.

AOPA President Craig Fuller is an active GA pilot who has been flying for more than 40 years. Email craig@aopa.org.