Against advice, FAA returns airman standards to regulation

While the FAA began moving away from codification of practical test and certification standards in regulation in 1997, the final rule published April 1 effectively turns back the clock, incorporating (by reference) dozens of certification standards for pilots, mechanics, and others into a single Part 61 regulation, exactly the course of action that many sought to avoid, including AOPA and fellow members of an FAA working group created to advise the agency on the ongoing development of certification standards. The rule was first proposed in 2022, following well over a decade of work by FAA and industry on modernizing the certification standards that the new rule now incorporates.

In formal comments submitted February 10, 2023, signed by AOPA and fellow members of the Aviation Rulemaking Advisory Committee's Airman Certification Standards Working Group, members voiced disappointment that many of the changes proposed by the working group had not been incorporated in the rulemaking proposal, and that the documents poised to become regulations that can be changed only through a formal rulemaking process were already outdated.

"The path forward must include continued engagement with the aviation community, such as the ARAC ACS WG, as much work remains incomplete," the working group wrote. "The existing and proposed ACS are in dire need of updates, handbooks need new editions, and FAA Knowledge Exams need to be revised."

The agency responded, in the text of the final rule:

"The FAA acknowledges industry's concerns that the rulemaking process will prevent quick updates to the ACS and PTS … Given the technical nature of the ACS and PTS, the FAA intends to explore an expedited method for making required updates through the rulemaking process similar to the process used for airspace actions. For updates that are administrative in nature, the FAA may use direct final rules or interim final rules to make those types of non-substantive changes."

The FAA referenced in the final rule a collection of ACS documents published online, as referenced in the final rule. Some include welcome updates, such as revision of the Instrument Airplane Rating ACS that allows examiners to substitute GPS approaches for instrument landing system approaches, which are not readily accessible for all applicants.

The working group's concerns may have been partially addressed by the FAA in the development of the final rule, but the fundamental mechanics of rulemaking under the Administrative Procedure Act are not well-suited to updating safety-critical standards. "With the rapid proliferation of new entrants into the National Airspace System (e.g., drones, powered lift, vertical takeoff and landing, and new sources of propulsion (electric and hybrid)), a pathway for continued collaboration is urgently needed," the working group wrote.

The FAA more directly addressed the National Association of Flight Instructors, particularly a comment posted by NAFI President Paul Preidecker on February 10, 2023, relaying the concern of members that the proposed regulation could trigger enforcement action against applicants who fail checkrides, and/or their instructors.

"The Administrator does not currently bring enforcement actions against those persons who fail practical tests, and this final rule does not change such practice," the agency wrote in the final rule. "The FAA further emphasizes that, for the same reasons, the regulatory nature of the ACS and PTS would not affect the responsibilities of a flight instructor who endorses an applicant for purposes of the practical test and that applicant later fails the practical test. Specifically, the FAA recognizes that an applicant could fail a practical test for many reasons that may not necessarily reflect upon the flight instructor, including stress, misunderstanding, or human error."

Meanwhile, the FAA continues to analyze comments on a separate rulemaking proposal published in May 2023 that would remove the expiration dates from flight instructor certificates, a measure AOPA petitioned for in 1999 and again in 2000. The agency received 169 comments on that measure, and the final rule has not yet been published.