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Back into the Fireswamp
Rewriting FAR Part 135 Rest & Duty
In one of my favorite movie scenes, a swashbuckling pirate is about to lead the beautiful princess into a dark morass of vegetation. The princess stops short and says, “We can’t go in there! It’s the Fireswamp! We will never come out alive!” The pirate confidently replies, “Nonsense. You’re only saying that because no one ever has.” He slashes a vine with his sword, and they step into the darkness as the music sounds a dour note.
Flight and Duty Limitations…
At our first meeting, those of us serving on the new Flight and Duty Time Limitations and Rest Requirements Aviation Rulemaking Committee (ARC) had the eerie feeling of slashing into the Fireswamp, with its multiple dangers of getting tangled and drowned by details, or burned by unintended consequences.
I first wrote this column in 2003, when I was a member of the newly formed Part 135/125 ARC. We undertook a complete re-write of Part 135, including Rest & Duty. We produced a comprehensive package, but it never made it to the Notice of Proposed Rulemaking (NPRM) stage.
Despite my last venture into the Fireswamp, I am optimistic. Congress mandated the creation of this ARC, and the industry needs an up-to-date set of rest & duty rules for Part 135, particularly on-demand operations. Congress asked the FAA to review the prior ARC work, and since I am one of the last members of that group, I was named as the Industry Chairman of the new ARC.
The Rulemaking Process
The ARC rulemaking process began with the Fractional Ownership ARC (FOARC), which, in the geological time of rulemaking, seems like yesterday. To understand how good this process is, it is important to understand how bad the old methods were. In the Stone Age, the FAA thought up a Notice of Proposed Rulemaking all by its lonesome, solicited written comments from the public, considered the comments in silence, and published a Final Rule. When industry input is limited to written comments, the FAA shoulders the entire burden of drafting the rule, and only those with the best writing skills can hope to shape the final product.
The next step in the evolution of FAA rulemaking was the Aviation Rulemaking Advisory Committee. An ARAC would provide “advice and recommendations to the FAA Administrator on the FAA’s rulemaking activities.” In other words, the industry took a great leap forward, because the industry had a chance to provide input to the FAA before a rule was drafted.
The fundamental difference between an ARAC and an ARC is that the ARAC would work hard towards its regulatory objective with little or no on-going guidance from the FAA. The ARC process allows the FAA and the industry to hash out issues face-to-face. However, because the meetings are face-to-face, the FAA and the industry can, and do, hash out issues in a more meaningful way than could ever be done in the old exchange of papers that bogged down previous rulemaking methods.
Like the ARACs, an ARC doesn’t have final say as to the content of the rule. It makes a recommendation to be considered by the FAA. And sometimes ARC work does not lead to any rule. But Congress is watching this effort. That is no guarantee of final success, but it could help.
Inside our Meetings
What are the meetings like? My idea of Hell is to be locked in a room for eternity with nothing to read except my own books about the FARs. But the pathetic truth is that I have been a student of the FARs since I soloed 40 years ago, I have been writing books about them for 25 years, and I am still fascinated by the challenge of regulating flying. Being locked in a room with a group of aviators arguing about FARs might sound like Hell, but great ideas emerge out of the chaos. And there are plenty of lighter moments, like the drafter of a regulation trying to remember what it means, or an older committee member noting that he objects to the age 65 rule but can’t remember why.
The rest & duty rules for Part 135 are complex in part because a pilot cannot rely on the regulations alone. There are decades of FAA Legal Interpretations that are required reading for anyone who needs to comply with Part 135 rest & duty requirements. Instead of regulating through exemption, deviation, interpretation and enforcement, the FAA wisely decided to start with a clean sheet of paper.
This article appeared in the December, 2019 issue of Business & Commercial Aviation as a Point of Law article.