FAA IS NOT ALONE IN USING INFORMAL PROCESSES TO GET THEIR “RULES” OUT; NEED HELP SORTING THE PANOPLY OF AGENCY SAFETY “REGULATORY” DOCUMENTS

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ARTICLE: Regulation by deviation: Agencies get around public input requirement before rule-making

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Congress enacts statutes and mandates that the government bodies authorized by such legislation may further explain the intent of the law by complying with the Administrative Procedure Act. For the FAA, the development, creation, drafting, approval by the DoT and OMB, publication in the Federal Register, processing of comments and final publication will consume at least five years (see an example of the tortious track which an FAA takes from conception to implementation).

In a dynamic, multi-faceted industry like aviation, the regulator has a difficult task keeping its rules up-to-date with new advances, threats, lessons and the ever-evolving business models created by the private sector. One observation of the FAA informal processes is that the shortcuts are used to bridge that time gap. Or, as suggested in the attached article, these “extra-legal” procedures may be an effort to circumvent the public’s right to comment on the proposal.

First, it is good to recognize that the FAA is not the only federal body that chooses/needs to use these techniques to implement new variations on the existing rules.

Second, it is important to know the legal hierarchy of FAA documents. What is the value of a preamble to the final rules? When a principal orders you to adopt verbatim an Advisory Circular, do you have any options? What is the relative legal authority of a Handbook versus an Order? Where can you research the document which an inspector quotes to you as the “current” rule?

It is a reality that the FAA can and will (should?) assert its jurisdiction through language which has not been subjected to the NPRM process. Faced with that exigency, what can you do?

One option is to attend a course which puts some order to this regulatory pandemonium. Experts, guys who actually conceived of, wrote and implemented these vagaries, are available to help you sort them out and most importantly to give you tools that give you a handle on what paper is higher in the regulatory order and how to find where the FAA said what it really means. Here’s where you can find out about the course these guys will be giving.

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