As Reported by Jessica Wehrman for Roll Call
Pete Buttigieg, who was confirmed Tuesday as secretary of Transportation, has a pretty full plate that includes a transportation system pummeled by the COVID-19 pandemic and a possible infrastructure bill.
But one of his tasks will be to finally implement parts of a law that passed months before the former South Bend, Ind., mayor entered national prominence by declaring he was running for president.
The FAA Reauthorization Act of 2018, signed into law on Oct. 5, 2018, was ambitious, bipartisan, and apparently pretty hard to implement.
So frustrated has Congress been by the slow pace of implementation that the House Transportation and Infrastructure Subcommittee on Aviation convened a hearing in September 2019 just to ask the Federal Aviation Administration about the holdup.
The issue came up again during Buttigieg’s confirmation hearing last month, when Sen. Richard Blumenthal, D-Conn., expressed frustration that the FAA had not yet issued a rule reviewing cabin evacuation procedures and establishing minimum seat size and leg room standards for commercial flights.
“The DOT, I’m just going to be very blunt, has failed again and again and again to issue regulations that are necessary to make the law real in people’s lives,” Blumenthal said. Buttigieg vowed to look into the issue.
The five-year, $97 billion 2018 reauthorization law included more than 400 mandates for the FAA and the Transportation Department, many with deadlines of six months or a year after passage, according to House Transportation and Infrastructure Chairman Peter A. DeFazio.
The Oregon Democrat said he’s “frustrated” that the FAA under former President Donald Trump did not implement key safety provisions in the law. “I look forward to working with the Biden administration to make sure this law is fully implemented as quickly as possible and as Congress intended,” he said.
Sara Nelson, the international president of the Association of Flight Attendants-CWA, AFL-CIO, said that “almost nothing in that bill has been implemented.”
Among the rules still in the works more than two years later:
- The law required the FAA administrator to provide Congress a report within a year with recommendations for assumptions about evacuation times that take into account seat size, passenger disabilities and water landings. The FAA responded by chartering the Emergency Evacuation Standards Aviation Rulemaking Committee in April 2019, and the committee gave 27 recommendations to the agency in May 2020. The FAA is “taking action to directly address those recommendations,” an agency spokesman said, including beginning formal rule-making to update regulations.
- A rule requiring the FAA to establish minimum dimensions, including pitch, width and length, for passenger seats on commercial aircraft. Congress gave the FAA a year to complete the work, but argued it should be done in conjunction with the evacuation procedures study in order to keep airlines from cramming in as many passengers as possible to the detriment of their safety. An FAA spokesman said the agency’s Civil Aerospace Medical Institute conducted a research study on the impacts of seat pitch, width and length between November 2019 and January 2020. “We expect to publish a report in the near future,” the spokesman said.
- A rule that would guarantee flight attendants at least 10 hours rest between shifts of up to 14 hours. The current rest period is eight hours. The law gave the FAA a 30-day deadline to enact the new rest periods, and the agency began rule-making in April 2019. An FAA spokesman said the agency “is making significant progress” toward drafting a Notice of Proposed Rulemaking that reconciles the comments received on the Advanced Notice of Proposed Rulemaking. The agency hopes to publish that notice in May 2021. Efforts to change those rules have been underway since at least 1994.
- A rule requiring the installation of a secondary cockpit barrier on new aircraft. The barriers are among the last outstanding items on a list of recommendations made by the 9/11 commission. The FAA is “actively developing the proposed rule” and anticipates publishing a Notice of Proposed Rulemaking for public comment in April 2021, according to a spokesman.
Nelson said part of the holdup for many of the regulations were requirements that they all be subject to cost-benefit analyses through the White House Office of Information and Regulatory Affairs. They were also subject to Trump’s policy of revoking two regulations for every one imposed.
Nelson said the de facto result was that some agencies slow-walked congressional directives. “They were not telling us they were definitely not going to do it,” she said. “They didn’t give you anything to challenge.”
A busy year
She said that while the FAA and other federal agencies have had much to deal with in the last year — a pandemic, Boeing’s troubles with the 737 Max — “they were avoiding doing things before that.”
“The practical reality is yes, they had a lot of other things to focus on this year but they had no intention of implementing these things even before then,” she said. President Joe Biden, in the first days of his administration, signed an executive order reevaluating the regulatory review process — a move Nelson said she hopes will mean implementation of some long-awaited priorities.
Greg Regan, secretary-treasurer of the Transportation Trades Department at the AFL-CIO, said the glacial pace of the law’s full enactment is unusual.
“There was a general aversion to regulation across the board,” he said of the Trump administration, but argued the mandates in the 2018 law were imposed for legitimate safety concerns.
Lawmakers also continue to be frustrated.
More than a year after holding that September 2019 hearing on the status of implementation, Rep. Rick Larsen, chairman of the House Transportation and Infrastructure Subcommittee on Aviation, said he was still waiting for rules to be implemented.
The Washington Democrat said in a December interview that the FAA had a “long to-do list” and acknowledged that reacting to the Boeing 737 Max crashes in 2018 and 2019 was justifiably a focus.
“That had to take precedence,” Larsen said. But he added that implementing rules related to flight attendant fatigue and other safety issues would continue to be a priority.
“We put a lot on the FAA’s plate,” Larsen said, “but these things needed to get done. The criticism that the FAA hasn’t gotten a lot of things done is legitimate, and it’s our job in Congress to hold them accountable to the law we passed.”