Trump One-for-Two Regulatory Freeze applied to PBI TFR (Mar-a-Largo)

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FAA Issues a Temporary Flight Restriction to PBI
for Trump’s Visit to Mar-a-Largo

A Case Study of How the One-for-Two Regulatory Freeze EO Will be Applied

The confluence of (1) President Trump’s issuance of Presidential Executive Order (“EO”) on Reducing Regulation and Controlling Regulatory Costs and (2) the FAA’s issuance of a President of the United States (POTUS) Temporary Flight Restriction for Palm Beach International Airport (PBI) and the surrounding area creates a useful instruction on how the EO will impact the FAA’s existing, tortuous rule-making process (for a short description of the NPRM labyrinth, click here).

The PBI TFR was issued to limit flights during the POTUS delegation visit to the “Southern White House.” FAA advisory confirms Trump’s visit to Palm Beach this weekend. The purpose of its publication is to restrict operations above and near this site at the request of the Secret Service. It is withdrawn after the President returned to Washington. This mechanism is also used for major events, like Super Bowl LI.

A TFR or an AD constitutes the daily, usually routine work of the FAA. They are frequently issued on short notice. The FAA also issues NPRMs and Final Rules; the subjects of these encompass the following range of actions:

1.   Technical amendments of existing rules which only correct a typographical error;

2.   Reissuance of an existing rule which has an expiration date;

3.   Issuance of a rule which intends to reduce an existing rule’s impact, i.e. an amendment to Part 107 which would reduce the BLOS prohibition;

4.   An NPRM which proposes a new set of rules which will reduce the current regulatory burden (i.e., the new Part 23);

5.   New requirements applicable to a recently introduced technology which impacts aircraft operations, ATC guidance capabilities, better standards (pilot fatigue testing, safety professional drug testing, etc.);

6.   Major policy pronouncements (not all of which are directly related to safety, i.e. environmental, international, user fees, DBE standards, etc.);

7.   And many, many more exercises of safety regulatory policy powers.

The words and plain meaning of the EO’s Section 2 would include all of the above examples within this “Freeze”:

Sec. 2.  Regulatory Cap for Fiscal Year 2017.

(a)  Unless prohibited by law, whenever an executive department or agency (agency) publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.

(b)  For fiscal year 2017, which is in progress, the heads of all agencies are directed that the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget (Director).

(c)  In furtherance of the requirement of subsection (a) of this section, any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations. Any agency eliminating existing costs associated with prior regulations under this subsection shall do so in accordance with the Administrative Procedure Act and other applicable law.

trump pbi tfr

According to reports, the EO “’does allow for exceptions for “emergency situations or other urgent circumstances relating to health, safety, financial, or national security matters, or otherwise.’ However, it’s not clear precisely what that means, so many agencies seem to be erring on the side of pulling everything pending at the Federal Register.”

trump pbi tfr

Industry publications have confirmed that the FAA has put its regulatory output, particularly ADs, on hold. Another headline reads “ADs To Be Reissued By FAA Amidst 60-Day Regulatory Freeze.”

This EO might spawn agency gamesmanship (gamespersonship?).

  • The FAA’s regulatory inventory runs about 1,500 pages of the printed CFR volumes. Within that herd of words might be some “rules” which can be easily deleted; in fact, a good editorial scrub might have reduced more than a few antiquated, superfluous or now irrelevant FARs.
    • The next, new NPRM to be sent to OIRA and the Federal Register, delete the archaic rule.
  • Declare the new rule as URGENT SAFETY CIRCUMSTANCES.
    • The PBI TFR is the easy candidate.
    • An AD, hopefully, will be included in this category.
  • Don’t change the rule; allow EXEMPTION/WAIVER WHICH AVOID THE NEED FOR A NEW RULE.
  • Aggregate/bundle rules—the best example might be to defer some airport initiatives and send them in a single bundle across the Mall at the same time. A package of 8 NPRM if sent seriatim would require 16 rules revoked; a package of those proposals in one docket would reduce the number of deleted rules by 15.
  • “Incremental costs” can be among the most subjective calculations in accounting/economics. Many (most?) of the great analysts of this academic specialty are graduates of the Mark Twain & Samuel Clemons School of Incremental Costs (Motto: “Numerum non mentietur instar mendaces” or “Figures don’t lie, but liars figure”). Since the EO mathematics involves evaluating the marginal costs of the ONE NEW rule against the TWO TO BE DELETED rules dramatically increases the probability that the agency numerologists will be able to find regulatory equity.
  • trump pbi tfrInternal interpretations—for years, the FAA earned a reputation for changing the impact of an FAR by establishing an internal reinterpretation. The FAA initiative, Regulatory Consistency Communication Board, has been trying to eliminate these agency variances. The Freeze EO might encourage the staff to revert to this bad practice. UNINTENDED CONSEQUENCE?

The universe of experts of regulatory processes resides in the agencies and departments. OMB, OIRA and the White House staff do not meet the collective knowledge of the APA and of real costs of these career employees. It should be an interesting bureaucratic battle to watch.

Several articles have been written about the real problems posed by the EO FREEZE. Not the least of those concerned with this regulatory blockage is the UAS community which is expecting a series of liberating regulations.

trump pbi tfr

The PBI TFR is a good lesson on the future of the Trump Regulatory Freeze. Stay tuned; more to come for sure.

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