The Trump “Two deletes before adding a New Regulation” comes to the FAA & YOU MAY PROPOSE which §§ of the FARs should be terminated

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Trump’s “Two-for-One” Rule (EO 13771)

FAA requests recommendations on existing regulations that are good candidates
for repeal, replacement, or modification.

Perhaps you were aware of President Trump’s signing Executive Order 13771 on January 30, 2017, the action is referred to as the “two-for-one” rule. While the math seems relatively easy to compute, the interpretations required both interim guidance and then a memorandum, which in total provided another 10,000 words to implement the E.O.

Unfortunately, the White House verbiage does not invite the public to suggest your least favorite FAR; rather the guidance looks to eliminate rules which

i. “Lead to an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

ii. Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

iii. Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

iv. Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in EO 12866, as further amended.”

What is subject to being eliminated is broadly defined to include:

  • Informal, formal, and negotiated rulemaking;
  • Guidance and interpretative documents;
  • Some actions related to international regulatory cooperation; and
  • Information collection requests that repeal or streamline recordkeeping, reporting, or disclosure requirements. 

The office administering this E.O. is OMB’s Office of Information and Regulatory Affairs, which is consumed with econometrics of assessing costs versus benefits, not surprisingly will determine whether the “two-for-one” request meets the President’s directive. Its standard [are the incremental costs of the proposed rule are exceeded by the costs of the two rules to be eliminated; “an offset”] is clearly articulated by the following bureaucratese:

“The term ‘offset’ means at least two EO 13771 deregulatory actions have been taken per EO 13771 regulatory action and that the incremental cost of the EO 13771 regulatory action has been appropriately counterbalanced by incremental cost savings from EO 13771 deregulatory actions, consistent with the agency’s total incremental cost allowance.”

trump faa regulation

With crystal clear explanation, the FAA has issued its own request from the public for candidates for elimination—ARAC Input to Support Regulatory Reform of Aviation Regulations – New Task.

The ARAC assignment is defined as follows:

1. Evaluate the FAA’s regulations in Title 14 of the Code of Federal Regulations to determine any and all regulations that should be repealed, replaced or modified. This evaluation will attempt to identify regulations that:

a. Eliminate jobs, or inhibit job creation;

b. Are outdated, unnecessary, or ineffective;

c. Impose costs that exceed benefits; or

d. Create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies.

For purposes of this evaluation, a regulation means any regulatory provision and could include a regulatory section (e.g., § 121.xxx), paragraph (e.g., § 121.xxx(y)), or subparagraph (e.g., § 121.xxx(y)(z)).

2. Provide a detailed explanation for recommending the repeal, replacement or modification of each regulation. This explanation will include any examples of why the regulation falls into one or more of the categories listed in paragraph 1.

3. Provide quantitative data on the costs and benefits of either repealing, replacing or modifying each regulation in the recommendation report.

4. Review the FAA’s current regulatory actions identified in the regulatory agenda, and provide feedback on the current program as appropriate.

5. Develop both an initial report and an addendum report containing recommendations on the findings and results of the tasks explained above. This data will be provided in two recommendation reports. In the first recommendation report, ARAC will provide a list of regulations that are considered to address the criteria of paragraph 1 of this tasking. A second addendum recommendation report will provide details to supplement the first submittal by ARAC to the FAA, and will provide the additional and detailed data as described in paragraph 2, 3 and 4 of this tasking.

a. The recommendation report should document both majority and dissenting positions on the findings and the rationale for each position.

b. Any disagreements should be documented, including the rationale for each position and the reasons for the disagreement. 

trump aviation regulationIt is highly likely that the Regional Airlines Association will submit, for example, its arguments about the Congressionally mandated pilot experience requirements. Another likely proposed deletion would come from AUVSI to delete all of the provisions of Parts 48 and 107 which they find an undue burden. Others will submit their favorite (not) §§ with the supporting economic analyses.

The process does not require or even invite the public to pair the proposed deletion with an expected addition.

The ARAC will review the docket’s comments and prioritize them. Curiously, this notice contemplates that the FAA will stockpile the targeted sections to be eliminated and to match them with future NPRMs as they are to be published.

If interested, the ARAC indicates that submissions must be submitted by June 1,2017 and sent to:

Nikeita Johnson

Management and Program Analyst

Federal Aviation Administration

Room 810

800 Independence Avenue, SW

Washington, D.C., 20591

Nikeita.Johnson@faa.gov

(202) 267-4977

 

This should be a fascinating docket to monitor, and we will!

 


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