Big Rulemaking Fun on The Bayou

Who doesn’t love safety, transparency, and or fairness? As we all know, any one of these concepts could very well be my middle name. Here I was trying to get the summer heat off of my mind and started thinking about a beautiful cool glacier. The association immediately got me thinking of FAA rulemaking, and so, this petition is the result.

In case you were wondering, I have not yet received the $473,000 and change necessary to launch the new advocacy effort for the rest of us. However, I felt it incumbent upon me to let the FAA know that the unwashed masses (aka bag holders) are still out there thinking about them and all of the hard and selfless work they do for the American people. So it is in the spirit of progress that I am doing what I can to help get the old ice-sheet moving by running some rulemaking up the flagpole.

Now, if the following sounds like something you can get behind, I would encourage you to make your comments public.

The petition reads as follows:

I. Treat Remote Pilots Like Manned Pilots

14 CFR Section 91.25 says, “The Administrator of the FAA will not use reports submitted to the National Aeronautics and Space Administration under the Aviation Safety Reporting Program (or information derived therefrom) in any enforcement action except information concerning accidents or criminal offenses which are wholly excluded from the Program.”

Yet, there is nothing like this in the Part 107 protecting remote pilots. It is up to the whim of FAA enforcement attorneys to choose to respect the spirit behind the Aviation Safety Reporting Program. The FAA should choose to adopt the below language so that remote pilots are as protected as manned aircraft pilots operating under Part 91.

II. Safety, Transparency, and Fairness

With the growth of unmanned aircraft has come the growth of a small cottage industry of people assisting people to navigate the convoluted maze of regulations. Some of these consultants are former FAA employees who are assisting individuals in filing applications for certificates of authorization, applications for certificates of waiver, or petitions for exemption.

Former FAA employees are also joining companies, boards, or law firms. See former FAA Administrator Michael Huerta joining the advisory board for Parazero, former
FAA manager of the Unmanned Aircraft Integration Office James “Jim” Williams joining the law firm Dentons, former head of Flight Standards John McGraw who assisted in petitions for exemption. The FAA has also hired more and more contractors who have access to confidential information. These contractors, like the FAA employees, also create problems in that they could review proprietary material and then take that in their heads to the private sector.

This petition once again raises the issues the FAA brought up in the previous rulemaking Restrictions on Operators Employing Former Flight Standards Service Aviation Safety Inspectors. “The FAA believes that aviation safety could be compromised if a former AFS ASI, acting on behalf of the operator, is able to exert undue influence on current FAA employees with whom he or she had established close working relationships while working at a FSDO or a CMO.” Likewise, here there is the potential for those within the
FAA to leave to the private sector and exert undue influence on employees and contractors reviewing petitions for exemption or applications for certificates of waiver or authorization under Part 107.

It is in the interest of safety, transparency, and fairness to restrict FAA employees and contractors from leaving their work and going to the private sector and accomplish work from the other side without a “cooling off” period. There are many businesses that have been extremely damaged by the convoluted, vague, and cryptic processes that FAA has set in place. There is an incentive to keep things difficult to benefit FAA employees or contractors who plan to jump ship because they can help their new employer or clients, while those of the general public are left to wonder in the regulatory darkness, without help from FAA employees and contractors, as businesses go bankrupt.

It is not beyond the realms of imagination to see how those on the inside of the FAA could be benefited by leaking information to those on the outside so as to generate good will and success in finding new employment with those that just obtained the new leaked information.

III. The Proposed Language

107.11 Aviation Safety Reporting Program: Prohibition against use of reports for enforcement purposes. The Administrator of the FAA will not use reports submitted to the National Aeronautics and Space Administration under the Aviation Safety Reporting Program (or information derived therefrom) in any enforcement action except information concerning accidents or criminal offenses which are wholly excluded from the Program.

107.201 Employment of former FAA employees or contractors.

(a) Except as specified in paragraph (c) of this section, no person may knowingly employ or make a contractual arrangement which permits an individual to act as an agent or representative of the person in any matter before the Federal Aviation Administration if the individual, in the preceding 2 years—
(1)
(A) Served as, or was directly responsible for the oversight of, a
(i) Flight Standards Service aviation safety inspector; or
(ii) Contractor hired by the Federal Aviation Administration to provide subject matter expert support under a government contract; and
(B) Had responsibility to inspect or evaluate, or oversee the inspection or evaluation of any of the following:
(i) Applications for a Certificate of Waiver or Authorization under Part 107; or
(ii) Petitions for exemption from provisions of Part 107.

(b) For the purpose of this section, an individual shall be considered to be acting as an agent or representative of a person in a matter before the agency if the individual makes any written or oral communication on behalf of the person to the agency (or any of its officers or employees) in connection with a particular matter, whether or not involving a specific party and without regard to whether the individual has participated in, or had responsibility for, the particular matter while serving as a Flight Standards Service
aviation safety inspector.

(c) The provisions of this section do not prohibit a person from knowingly employing or making a contractual arrangement which permits an individual to act as an agent or representative of the person in any matter before the Federal Aviation Administration if the individual was employed by the person before January 1, 2020.