Every new administration is forced to reconcile promises made on the campaign trail to overhaul the administrative state with its own regulatory agenda. Politicians demonize administrative agencies as the cause of the nation’s woes; the proverbial red tape created by out-of-touch Washington bureaucrats is said to be killing jobs and preventing American businesses from being competitive in the global marketplace. Elected officials then have to manage their rhetorical (and administrative) messes once in office.
Just 10 days after Inauguration Day, the Trump Administration issued an executive order that, among other things, directs each federal agency to repeal two regulations for every new rule it promulgates. Through sheer weight of numbers, the executive order aims to control regulatory costs by reducing the overall size of the rulebook. This approach, however, is problematic for safety-focused agencies because it attacks the very premise of each regulation currently on the books.
The FAA has expansive statutory authority to promulgate rules necessary for safety in air commerce. In principle that means each regulation in 14 CFR should increase aviation safety. If that’s the case, then is it really practical to meet a forced promulgation/repeal ratio? There are numerous reasons a rule might be ripe for replacement or modification. Plenty are outdated – superseded by market forces – while others may simply be duplicative. It’s great to have discretion to actually consider the impact of existing rules, but it must be done based on their legitimate impact on certificate holders and service to aviation safety.
Outdated regulations can be annoying; even after passing into irrelevance they leave behind compliance-related vestiges that can trip certificate holders. The most vexing, not to mention costly, are duplicative rules. Duplication in the CFR brings us back to the original question: If a rule is truly repetitive how does it enhance aviation safety? It can’t.
The FAA is already grappling with how to comply with President Trump’s executive order. Thankfully, the agency has enlisted industry: In April, it requested the Aviation Rulemaking Advisory Committee (ARAC) recommend regulations that are good candidates for repeal, modification or replacement (a subsequent executive order directed creation of task forces to review existing rules and ARSA rightfully prophesied that ARAC could serve this purpose).
ARSA and Airlines for America (A4A) – both ARAC members – jointly submitted a list of rules to the full committee that the associations would like to see eliminated or modified. The combined submission highlights a wide range of areas where existing rules impact job creation, impose unnecessary costs, create inconsistencies or are otherwise unnecessary or ineffective. ARAC will submit reports to the FAA throughout the summer providing preliminary and final recommendations.
The renewed interest in regulatory reform also provides an opportunity to reflect on industry’s responsibilities during the rulemaking and guidance development processes. All too often stakeholders lose sight of the fact that they are only a small part of a vast regulatory system. Rules that negatively affect operators will ultimately have an impact on maintenance providers, and vice versa. Unfortunately, even the organizations that grasp the bigger picture retreat from broader industry efforts out of fear they will draw the agency’s and receive unwanted attention from their local inspectors in return.
Industry, not the government, is responsible for keeping the flying public safe. The men and women on the flight line, in the component shops and engineering labs, and those up in the air are the ones who know how to do their job best. Government’s role is to make sure industry lives up to that standard. When stakeholders retreat from policy debates or only oppose rules that directly affect their business, we are left with a book of regulations that is twice as thick, half as effective, and exponentially more expensive for follow.
It’s still unclear how the mechanics of the executive order will actually work, but it has the potential to seriously reign in the FAA’s regulatory excesses. Regulatory reform is more than just an aspiration for the Trump administration. The premise, purported justification, and cost of each new rule will be subject to greater scrutiny than in the past. Industry – should it choose to take advantage of it – will be better positioned to challenge hostile rulemaking actions. As always, the devil is in the details so we’ll have to wait and see whether the executive order can live up to its promise.
Keep up to date on the regulatory reform process at arsa.org/reg-reform-2017.
Ryan M. Poteet is senior associate of Obadal, Filler, MacLeod & Klein, P.L.C. advising clients in international aviation safety regulation and government affairs. He serves as regulatory affairs director for the Aeronautical Repair Station Association.
