EASA seeks 21st century rulemaking

Mar 19 2015
The European Aviation Safety Agency (EASA) has this week published proposals for a modernised rule-making strategy based on slashing regulatory red tape and adopting modern outcome-based risk assessment principles. EASA’s name for this is “performance-based rule-making” (PBR).

As a transnational regulator EASA is the centrepiece of the European Union’s strategy for aviation safety, says its Executive Director, Patrick Ky:

“EASA – that means the Agency and its sister national authorities – need to be prepared for the challenges ahead. With these changes, we will be more proportional, flexible and proactive to increase the level of safety in European aviation. I believe that although our proposals are ambitious they are also reasonable. There is nothing wrong with being ambitious about safety.”

Mr Ky was appointed in September 2013, and closed the organisation’s rule-making office a year later.

Flight International ’s David Learmount quotes Ky’s explanation for the new strategy:

“If you have a rule-making directorate,” he explains, the director is judged on how many rules he makes, or how many existing rules he ‘improves’.” The result, he says, is ever-fatter rulebooks, the contents of which nobody could possibly retain, and the complexity of which becomes “impossible to work with”.

The EASA plan would take the European agency in a new direction almost 180° divergent from Australia’s botched 25-year-old regulatory reform program (RRP) that has flooded our aviation rules with literally thousands of pages of prescriptive micromanagement-based regulation and hundreds of new offences and penalties, a concoction which has been described as “a spate of legalese incontinence.”

Ironically, the regulatory development processes and philosophies described by Mr Ky closely align with Bruce Byron’s “Directive 1/2007” (see below) which was issued by the former CASA CEO eight years ago, but had been subsequently ignored by his successor John McCormick in favour of what he called “black letter law”, although the directive only recently disappeared from the CASA website.

Among other recommendations, EASA proposes that when the national authorities of its member States lack resources or expertise in a particular area, they should be able to delegate some of their oversight functions to other authorities or to EASA, to ensure that no safety risks are overlooked. The Agency also proposes that, on a voluntary basis, member States can decide that their State aircraft (excluding military) can be covered by EASA. The proposals also include the extension of the Agency’s scope of intervention in new domains, such as airport ground handling, RPAS (drones) and security, in order to cover all aviation safety related topics in a comprehensive way.

In the next step, the Opinion will be sent to the European Commission which will use it as an input for the amendment of the Agency’s current Basic Regulation within this year.

Bruce Byron’s Directive 1/2007
This Directive replaces CEO Directive 016/2004, which is hereby repealed. It updates CASA’s Guiding Principles for the development of the regulatory framework and proposed aviation Safety regulations.

Guiding Principles
Regulatory policies
The aviation safety regulations must take into account CASA’s Classification of Civil Aviation Activities policy and the priority given under the policy to passenger-carrying activities.
• Aviation safety regulations must be shown to be necessary. They are to be developed on the basis of addressing known or likely safety risks that cannot be addressed adequately by non-regulatory means. Each proposed regulation must be assessed against the contribution it will make to aviation safety.
• If a regulation can be justified on safety risk grounds, it must be made in a form that provides for the most efficient allocation of industry and CASA resources. The regulations must not impose unnecessary costs or unnecessarily hinder high levels of participation in aviation and its capacity for growth.
• Where appropriate, the aviation safety regulations are to be aligned with the standards and practices of leading aviation countries, unless differences are required to address the Australian aviation environment and these differences can be justified on safety risk grounds.
• Where the standards and practices of the leading aviation countries vary, CASA will align its regulations with those that effectively address the safety risks in the most cost-effective manner.
• Wherever possible, the aviation safety regulations must be drafted to specify the safety outcome required, unless, in the interests of safety, and to address known or likely aviation safety risks, more prescriptive requirements need to be specified.
• The aviation safety regulations must be drafted to be as clear and concise as possible.
Regulatory framework
• Wherever possible, the aviation safety regulations are to be developed within a two tier regulatory framework comprising the Civil Aviation Act and the Civil Aviation Safety Regulations (CASRs), supported by advisory material that details acceptable means of compliance with the CASRs, together with appropriate guidance material.
• Manuals of Standards (MOSs) are to be developed only where there is a clear requirement, on the basis of safety, to specify standards that for the purpose of clarity and effective administration should not be contained in the regulations.
• The content of proposed MOSs must also be assessed against the contribution it makes to aviation safety.
• A MOS must only contain such standards as are clearly authorised by a particular regulation and must not be used as a vehicle for promulgating advisory material and other information.
All CASR Parts and MOSs are to be developed and maintained using the Guiding Principles stated above.
Bruce Byron, Chief Executive Officer
However CASA continues to drift further away from global trends, a concern echoed by the Aviation Safety Regulation Review’s “Forsyth Report”:
Although opinions differ, the Panel estimates that the RRP will take at least another five years to complete. Furthermore, the final product of regulatory reform will not meet the aviation community’s needs and will not be consistent with the ICAO principles for plain language, easily understood, safety rules. Nor will the final regulations be harmonised with those of any foreign jurisdiction. The 25-plus year history of regulatory reform has been consuming the industry, and distracting the aviation community from the objective of managing safety in its operations. On this basis, the Panel concludes that continuing along the current path is not in the interests of aviation safety in Australia and that a new approach must be developed for regulatory reform.
Another roadblock
Meanwhile CASA’s regulatory reform program now faces a new hurdle with a successful motion by independent Senator Nick Xenophon to disallow the latest Part 145 Manual of Standards Amendment Instrument – a motion supported by the Opposition and cross-bench Senators. Senator Xenophon said in support of the motion:

“In my view, there are simply too many concerns around these regulations to allow them to stand.

  • “The amendments do not deliver clear and concise regulation.
  • “The amendments do not support the existing MOS policy, and fundamentally alter both Australia’s long-established safety philosophy and processes.
  • “The guidance material does not seem to accurately reflect the regulations.
  • “The regulations do not improve alignment with EASA and ICAO standards – the stated object of Australia’s aviation sector – and in fact move us further away.
  • “The regulations do not strengthen safety outcomes and instead remove a critical layer of licensed oversight.
  • “The regulations increase costs for the industry through increased administrative requirements.
  • “The regulations do not reduce complexity in the regulatory environment, and in fact seem to make it more complex.

“In short, these amendments do not meet CASA’s functions under the Civil Aviation Act and are not an appropriate use of CASA’s delegated legislation powers. They are bureaucratic, complex and ineffective. They reduce safety and increase cost. The amendments do not support our aviation industry and should be disallowed.”

Senator Xenophon however assured the Senate his move in no way criticised CASA’s new Director Mark Skidmore:

“I understand that this is a legacy issue that Mr Skidmore has taken on. I understand that because he must rely on advice from senior members within his organisation, given that this is something he has inherited.”

Deputy Opposition Leader Senator Stephen Conroy and independent senators supported the motion.

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About Paul Phelan

Paul Phelan flew for over 50 years in private, charter, corporate and regional aviation, worked in senior management roles with a major regional airline, and retains his license. In parallel he has been writing for Australian and international aviation journals for well over 20 years on all aspects of aviation including aircraft evaluation, flying, industry affairs, infrastructure, manufacture, regulatory affairs, safety, technologies and training. He has won three separate National Aviation Press Club awards for "best technical aviation story of the year."

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