[Peetwo]

PBR vs Big "R" regulation (rule with an iron fist)

Former airline LAME and NTSB Board member John Goglia (see Forbes BIO) wrote an article for AIN publication criticising the recent FAA DRAFT AC dealing with LAME/AME duty & rest (FRMS) rules:

Torqued: AC Is Not Good Substitute for Maintenance Fatigue Rule

by John Goglia
 - June 6, 2016, 11:20 AM
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For those of us who have been frustrated by the FAA’s inability to issue a comprehensive duty and rest rule for mechanics, it was disappointing to see the agency’s latest attempt at tackling the issue. Even as the FAA specifically recognizes in [url=https://www.faa.gov/aircraft/draft_docs/media/AFS/AC_120-MFRM_Coord_Copy.pdf]this latest draft Advisory Circular the significant fatigue issues that face maintenance workers: “Of concern to [the FAA] is the finding that maintenance personnel tend to get three hours less sleep per night than is recommended. That is a sleep debt twice the national average. Sleepiness and fatigue associated with sleep debt is cumulative. This means that losing even an hour of sleep every other night over the course of a week will produce conditions that negatively affect performance.” 

Instead of proposing clear maximum duty times and minimum rest requirements, the FAA has instead proposed a draft advisory circular to manage mechanic fatigue risk. Since an AC is not regulatory and therefore not mandatory, its chances of being complied with are limited by the usual factors: time and money. So, no doubt, the best carriers will take this AC to heart and integrate its proposals into their safety management systems. But the rest–of which there are many–will not. And there won’t be anything the FAA can do, of course, because no one needs to comply with an advisory circular. The FAA makes that abundantly clear in the draft itself: “Not Mandatory. This AC is informational and is not mandatory. It does not constitute a regulation.”

Ambiguous Regulation

Currently, the only duty-time rule that applies to mechanics is FAR 121.377, which states, “Within the United States, each certificate holder (or person performing maintenance or preventive maintenance functions for it) shall relieve each person performing maintenance or preventive maintenance from duty for a period of at least 24 consecutive hours during any seven consecutive days, or the equivalent thereof within any one calendar month.”

At first blush it might seem that mechanics under this rule–which applies only to Part 121 air carriers and their maintenance contractors, not air-taxi or corporate or GA mechanics–would get a full 24 hours off every week. But when the FAA tried to interpret it this way in 2010 (in response to a letter from Pratt & Whitney in 2008–yes, interpretations do take their sweet time getting out of the FAA’s legal office) the FAA was met with a hail of opposition from airlines, repair stations and even mechanics’ unions. The issue boiled down to the meaning of the phrase “or the equivalent thereof within any one calendar month.” Did that mean that mechanics could work more than a week straight without a 24-hour break?

In its 2010 interpretation, the FAA took the position that the phrase “or the equivalent thereof within any one calendar month” had its limits: “The equivalent standard, however, does have limits. The tenants [sic] of statutory and regulatory interpretation suggest that the specific standard of one day off every week cannot be rendered completely inoperative by the more general equivalent standard. A previous interpretation allowed that a work schedule that provides for personnel to have a group of four days off followed by up to 24 days of work, or vice versa, would still meet the standard of being ‘equivalent’ to one day off in every seven within a month… That interpretation, however, was issued prior to the findings relating fatigue to maintenance related errors in the air carrier industry… Today, we would not view as compliant a schedule that provides over the course of eight weeks for four days off followed by 48 straight days of duty followed by four more days off. Such a work schedule that generally provides for an average of one day off over several weeks cannot be said to be ‘equivalent’ to the more specific standard requiring one day off out of every seven days.”

The FAA’s opinion here shows that taken to its logical extreme, the “equivalent” standard could allow weeks straight of work without any day off, as long as the required days off were strung together at the end. You don’t have to be a sleep expert to know that working weeks straight without a break is not the same as a day off every week.

Well, in the firestorm that followed, the FAA backtracked on this interpretation. It did go to the trouble of requesting public comments in 2011. I do agree on at least one concern that was raised by opponents: the interpretation would drive even more maintenance work out of the country. And that’s because the rule applies only “within the United States.” Clearly, workers performing maintenance for U.S. airlines should be covered by the same duty and rest rules, regardless of where the work is performed. After all, it’s the safety of the aircraft after maintenance that the FAA is concerned with, not the health of maintenance workers generally. U.S. employers should not be put at a competitive disadvantage by safety rules such as this one that apply only within the U.S.

But back to the subject of an AC instead of a maintenance fatigue rule. Advisory guidelines just won’t work when and where you need them most: when mechanics are being pressured to work fatigued at places that put a premium on pushing airplanes out on schedule more than getting them out maintained correctly. These places tend to be the ones that have the fewest worker protections (yes, that usually means places without unions). So, while the AC has a lot of excellent information and advice that employers should use regardless of where the maintenance work is being performed, it is not a substitute for an actual rule with maximum hours of work and minimum rest.

I understand that getting a rule through will be tough. And it will likely require Congressional direction to push it through. But as our knowledge of the effect of fatigue on human performance grows, it’s not possible to deny that long hours, day after day, without catch-up rest degrade a maintenance performer’s abilities to perform maintenance tasks properly, especially the most safety critical and complex tasks. While improperly performed maintenance could result in a crash in the worst case, improper maintenance also results in costly incidents. So, if the FAA doesn’t come up with a rule, employers should create their own workplace standards, especially since fatigue can drive up worker injuries and Workers Comp claims.

In light of DAS Skidmore's current retrograde approach to embracing (or not) current World's best practice of performance based regulation, I guess it would be heartening to read Goglia's somewhat baffling suggestion that the FAA should be heading back to 'rule by regulation'.

However when you read the paragraphs under 'ambiguous regulation' you then realise that the whole 'AC' softly, softly, approach came about because of strong industry consultation & feedback to the previous ambiguous proposed FAA rule set.

The difference between 'consultation' in the US with completely engaged industry stakeholders to whose opinions the FAA proactively respond, to that in Australia where the regulator will listen with a deaf ear and then ignore the industry input, could not be more stark.

This is further highlighted by a SDA publication response to the Goglia article, where they respectively take JG to task... :

Goglia’s AMT Fatigue needs SMS for solutions


Posted By: Sandy Murdock June 8, 2016

AMT Fatigue SMS

What former NTSB Member Goglia calls out as problems, indeed, needs to be torqued, but the man, who is expert at using tools for maintaining aircraft, may need to update his regulatory toolbox.

He understands the workload and psychological stress of being an AMT with heavy production pressure. His essay well lays out the fatigue issues of his profession. His choice of how to fix them is where he relies on old procedures.

As he notes in the article, the gestation periods of the FAA NPRM process and its Chief Counsel’s opinion are exceedingly slow. Some of the issues, which he highlighted, cannot be universally addressed; a single rule cannot deal with so many variations in the tasks. Fatigue may exist across Airline Maintenance Technicians (AMT) job descriptions, within an airline or even as to airlines with different operational profiles or geographic location or size.

Mr. Goglia also stated that the most effective regulations are specific; precise language makes compliance easier by the certificate holder as well as enforcement by the FAA. The more exact the wording of an FAR, however, makes it more difficult to apply to all potential situations under a single rule. {As guidelines for behavior, probably only the Ten Commandments are simple in statement and universal in application [even then there are many ministers/mullahs/priests/rabbis around to interpret and enforce them.]}

The hypothesis of the NTSB alumnus’ paper is that the FAA should not issue an Advisory Circular, but must issue an improved FAR, i.e. to make the very general 14 CFR§121.377 to be more specific in its mandate. In support of his position, Mr. Goglia’s article cites the following problematic fatigue examples:

• “Of concern to [theFAA] is the finding that maintenance personnel tend to get three hours less sleep per night than is recommended. That is a sleep debt twice the national average. Sleepiness and fatigue associated with sleep debt is cumulative. This means that losing even an hour of sleep every other night over the course of a week will produce conditions that negatively affect performance.”
  

• “…theFAA took the position that the phrase “or the equivalent thereof within any one calendar month” had its limits: “The equivalent standard, however, does have limits. The tenants [sic] of statutory and regulatory interpretation suggest that the specific standard of one day off every week cannot be rendered completely inoperative by the more general equivalent standard. A previous interpretation allowed that a work schedule that provides for personnel to have a group of four days off followed by up to 24 days of work, or vice versa, would still meet the standard of being ‘equivalent’ to one day off in every seven within a month… That interpretation, however, was issued prior to the findings relating fatigue to maintenance related errors in the air carrier industry… Today, we would not view as compliant a schedule that provides over the course of eight weeks for four days off followed by 48 straight days of duty followed by four more days off. Such a work schedule that generally provides for an average of one day off over several weeks cannot be said to be ‘equivalent’ to the more specific standard requiring one day off out of every seven days.”
  

• Clearly, workers performing maintenance forS. airlines should be covered by the same duty and rest rules, regardless of where the work is performed. After all, it’s the safety of the aircraft after maintenance that the FAA is concerned with, not the health of maintenance workers generally. U.S. employers should not be put at a competitive disadvantage by safety rules such as this one that apply only within the U.S.
  

• But as our knowledge of the effect of fatigue on human performance grows, it’s not possible to deny that long hours, day after day, without catch-up rest degrade a maintenance performer’s abilities to perform maintenance tasks properly, especially the most safety critical and complex tasks. While improperly performed maintenance could result in a crash in the worst case, improper maintenance also results in costly incidents. So, if theFAA doesn’t come up with a rule, employers should create their own workplace standards, especially since fatigue can drive up worker injuries and Workers Comp claims.
  

He, then, correctly points out that an AC is not mandatory (as the preamble says “This constitutes one means of compliance”)John concedes that  “the specific advice contained in draft AC 121-MFRM is “excellent information and advice that employers should use regardless of where the maintenance work is being performed.” The Goglia thesis is that the good airlines are already implementing this FAA guidance and the overworked, fatigued AMTs will continue to be at risk.



The new tool box of FAA regulations involves data-based, preventative, 3600 collaborative (i.e. unions sit at the table, among others) and risk-based process called Safety Management System. It was created to make the FAA staff more effective, to avoid the horrendous delays required to issue a new FAA and to move the focus from enforcement to positive, preventative process. All risks, to which an airline is exposed, are the subject matter for this new cooperative approach to safety. Issues are brought to the SMS team and proactive solutions are designed.

As Member Goglia’s paper describes, risks vary in a number of ways.

• Fatigue is more likely for those who work rotating shifts; by being on duty in inconsistent patterns, the need for specific rest remedies may be greater.
  

• Personnel whose jobs are indoors and who work regular hours may have less need to rest rules than the AMTs who work outdoors with adverse weather.
  

• Work involving very exacting or strenuous tasks may need different treatment.
  

 
A single FAR, even a discretionary AC, may not be able to design appropriate solutions which address each of these specific, almost unique risks. SMS can, and the union participates in the deliberation, design proactive strategies for each identifies job fatigue source. Even better than any regulation, SMS provides the flexibility to respond quickly—when the data shows that the SMS is not as effective as it was projected, the continuous improvement principle will bring the issue back for refinement.

Mr. Goglia, when he was an A&P mechanic, always had the best wrench. His assessment of the need to address AMT fatigue is well stated. Today’s tool for fixing such a problem is not the 5 year NPRM process, but a finely tuned mechanism which uses all involved to find repairs for each specific safety risks.
One might suggest that the unions should assure that the statistical analytical tools capture the risk relation between fatigue and degraded MX performance. With that data the SMS team will be able to fashion remedial steps for each job for which there is risk. The science of fatigue management has recently been well researched. The SMS answers will better serve mechanics than a compound, complex 14 CFR§121.377 with multiple dependent clauses. Only lawyers will benefit from that response to this problem.

 
ARTICLE: Torqued: AC Is Not Good Substitute for Maintenance Fatigue Rule

Fancy that industry sector experts, commentators and relevant stakeholders actively getting involved, without fear nor favour, in public debate on the most appropriate way to proactively address an identified but dormant safety risk issue...  


Meanwhile in Oliver's land of retrograde regulations where all industry participants are criminals until proven otherwise, a couple of comments from LAMEs off Sandy's petition that says it all...

Read this comment and sign the petition. I have been in the aviation industry for the past 49 year... https://www.change.org/p/7202495/c/46057...responsive via @ChangeAUS

..The introduction of the part 145 which CASA admitted in a meeting I was at when they dumped the FAR system for the European system. At that meeting CASA said that the system did not work in europe for GA but they were going to make it work in australia. 30 years this September it still has not been put into place. Companies have literly spent millions of dollars getting the 145 tag for no extra safety gains. It has divided GA and forced a lot of companies to close...

 

Read this comment and sign the petition. Although I am skeptical of clicktivism, this is pertinent... https://www.change.org/p/7202495/c/46083...responsive via @ChangeAUS

...Although I am skeptical of clicktivism, this is pertinent to me. I am a LAME and have seen the decline of aviation in Australia, sadly much of that driven by the red tape forced CASA has been mandated to foist upon the industry. The industry needs simple, effective oversight, with effective and accessable rules, and strong enforcement. The aviation industry is seen as a cash cow by many as there seems to be a perception that aircraft = available money, without much thought to the massive overheads and minuscule margins required to operate.

KC in reply to the above from off a PAIN email chain:

The big difference in Australia is that “modern awards” negotiated by businesses and unions have addressed this issue a couple of decades back.
ATSB also produced a detailed paper in 2001 highlighting this issue:

https://www.atsb.gov.au/media/33957/sir200102_001.pdf

The recommendations in the ATSB paper were adopted back in 2001.
 
AMROBA uses it when advising its members.
 
Regards...

 To which I replied:

..guess that was a somewhat poor example as I was trying to point out the major difference in 'consultation' when it comes to the FAA v CASA.


However that is an excellent ATSB link Ken. That would have been back when the bureau was somewhat relevant and proactive in addressing identified safety issues. I note that the report had 9 very good safety recommendations, fast forward to today's Dolan led ATSB, they would be lucky to have that many SRs in a year. See my report on the decline of the SR under Dolan: http://auntypru.com/wp-content/uploads/2015/03/Popin_2.pdf 
 
As a point of comparison to that ATSB report, refer to yesterday's ATSB VARA ATR interim report  (link at the top of this AP Post: http://auntypru.com/forum/-Overdue-and-Obfuscated?pid=4482#pid4482 ), which IMO should also have generated the need to publish a SR (or two)...

And today another email contributor brings it back to TAWS with the following insightful & historical contribution... :

Folks,
The major points of difference in consultation, FAA v. CASA is:
 
(1)    FAA have a very formal justification criteria for regulation making, that includes risk management and cost/benefit justification ---- the major elements in making sure that every “there should be a rule --------“ doesn’t happen.
(2)    The ARAC groups duties are up to and including drafting the basic “rule” that will eventuate from their activities.
(3)    The ARAC system largely prevents “interested parties” creating “rules” for sectional commercial advantage ----- a major unacknowledged problem here in Australia.
 
As a matter of interest, every time FAA invokes its “emergency authority”, and “proceeds direct to final rule” it turns into to be a shambles, and a very expensive shambles, just like here. The “control cable AD”, which started from the lobbying of one INDUSTRY IDENTITY here, would never get off the ground in the US system.
 
In contrast, here, a genuine risk management approach simply never gets a look in, there is NO genuine and HONEST attempt at cost/benefit analysis, RIS comes after, not before, and we wind up with a huge rule book, where we have LONG SINCE PAST to point of DIMINISHING RETURNS. Ie: Most of CASA’s activities have no beneficial safety benefits, and it can be argued that many have the opposite effect, they actually increase risk.
 
Time and again, CASA’s final rules bear no relationship to what was “consulted” via the Technical Sub-Committees, the “maintenance suite” is the prime example, what we have bears not the slightest relationship to the output of the very expert group put together by Bruce Byron, and bears no relation to the EASA approach, which Byron was looking for.
 
The original draft Part 91 was actually marginally shorter than FAR or NZ CAR 91, the current draft CASR   Part 91 ----- save me.
 
As Assistant Director Bill McIntyre said, many years ago: “ The law requires us to consult, it doesn’t require us to take any notice”.
 
Regards,

MTF...P2