Understanding the Regulatory Environment Part 1: "The Case for Oversight"


Abstract

This series of articles is written for air crew entering commercial operations for the first time. They provide a context to understand the structure and philosophy underpinning the regulations that will be introduced during training. While aviation provides a convenient backdrop for this discussion, the concepts are universal and broadly applicable to any regulated industry. Finally, the overarching goal is to tell the story behind the regulations, thereby providing an answer to why they exist. Historically, this context makes the subsequent discussion of what the regulations require more comprehensible.

Private vs Public

Many airmen have raised an eyebrow over the seemingly random and arbitrary regulations promulgated by the Department of Transportation (DOT) and the Federal Aviation Administration (FAA). Many have taken umbrage with the increased training, paperwork, inspections and approvals required for commercial service.

I’ve heard many airman and technicians wonder aloud how the aircraft “knows what regulation it's flying under”. Conversely, some have puzzled at why the government would relax standards for an aircraft simply because it was removed from revenue service. In the simplest terms, this is a balancing act between private property and public safety.

A Dog in the Fight

When an aircraft is privately held and privately operated for the benefit of its owner, to the government it’s essentially a flying car. Just like a car, the operator (pilot or crew) must abide by the rules of the road such as speed limits, right-of-way and seat belts. But beyond that, you are essentially a private citizen going about your daily business and the only interest the government takes is ensuring basic qualifications and monitoring for compliance with the public safety rules.

An even simpler example is a private citizen preparing a meal for their own consumption in their own home. The government has almost nothing to say about this very private act. However, the moment you put up an awning and an “open” sign, the health inspector comes running. The health department or the city may not care if you drink questionable milk, but if you want to sell it to the public, the health department suddenly cares very deeply.

At a minimum, they’ll insist that you apply for and receive a business license (to conduct business and charge tax) and a health permit (to serve food). In other words: an “economic authority” and an “operating certificate”. This flows from the city’s (government’s) mandate to ensure public safety. In this case by inspecting and approving the restaurants doing business therein.

Similarly, when an aircraft owner flies privately, the government pays little attention to how they operate or maintain the aircraft beyond the minimum legal requirements. For example, crew proficiency in instrument flight among private crews is largely based on the honor system. However, commercial operators are required to conduct, and document instrument proficiency checks every six months regardless of recent experience. So, when an aircraft owner wants to place an aircraft into revenue service (thereby holding out to the public) they will be doing so as an “FAA Approved Air Carrier”. This status is roughly equivalent to seeing “USDA Approved Ground Chuck” on the meat in the super market. You can buy with confidence that you won’t get sick.

However, in both cases, the FAA or the USDA now has a dog in the fight. This is because in the event of a mishap or in the event of food poisoning, the government will have (by definition) failed in its obligation to ensure public safety.

Documents and Process

As we saw with the example of opening a restaurant, an air carrier also has two mandatory documents which must be issued by the DOT and FAA prior to commencing operations: their Economic Authority and their Operating Certificate. These documents are evidence that the regulating authorities have examined all aspects of the operation and found it to be acceptable.

Another aspect of certification in this (and any technical) environment is that there are numerous other government approvals issued further down the line. Pilots, Mechanics, Dispatchers and Flight Attendants must hold and maintain current medical and technical certifications. And one crucial aspect of this which is widely misunderstood is that these certifications are not yours in any normal sense of the word. An operating certificate (be it Air Carrier, Airman or Dispatcher) is temporary approval from the government to operate provided ongoing conditions are met. Therefore, you can’t sell a certificate (any certificate) as some Air Carriers claimed to do in years past. Even if you could find someone to pay for the paper on the wall, the transaction would be as meaningless (and as invalid) as someone selling their driver’s license on eBay.

Applying the Concept

The take away here is twofold. First, the certificates issued by regulatory authorities are nothing more than a “permission slip” based on knowledge, skill and proficiency and they can be revoked at any time under certain conditions.

Second, the traveling public depends on the DOT and FAA to certify, approve and police the purveyors of public transportation. In so doing, the government has an obligation to prove that every level of the operation is sound and dependable. So even if you’ve been flying a specific aircraft for years, you will need to re-qualify for it under the Air Carrier’s program. Even if you fly three instrument approaches a day (many more than the six required every six months) you will take an instrument proficiency check ride every 180 days. A private owner of a car or a plane has the right to exercise their own judgement about acceptable risk (and how much their willing to take). Hence your ability to drive in the winter on bald tires if you so choose. But a licensed taxi driver has no such option. Because the taxi is government certified; the government becomes the risk-manager for the traveling public; and the DOT takes a very dim view of risk.

Learning to live in the regulatory environment can seem like a belt-and-suspenders operation. You will see examples where regulatory compliance seems at odds with common sense (canceling a flight because your five minutes over the duty-day for example.) But these are the exceptions. In the overwhelming number of examples, the regulations exist for good reason. Its been said that many of them in fact are “written in blood”, which is the topic of the next blog in this series.

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