Regulatory Proposals, Comments, Showing Your Work

Admit it.  Each and every one of you is as excited as I am to see what the FAA comes up with in its notice of proposed rulemaking (NPRM) for launch and reentry this coming February.  The President wants the FAA to streamline its regulations, make them more “performance” oriented, and to generally reorganize them.   As someone who worked on what will eventually become the old regulations, I am looking forward to rolling my eyes and complaining about how the old ones were better and asking anyone who will listen “what were the whippersnappers thinking?”  This will be fun for me.

But wait.  There’s more.  Everyone gets to comment. And the FAA has to listen.

I heard a certain amount of unease from industry at COMSTAC earlier this month.  Industry wanted to see a draft of the NPRM before it came out in February.  I think this got cleared up later, but in case it didn’t entirely, or the rest of you weren’t there, the main thing to know is that the NPRM is the draft.  When the FAA releases an NPRM for public comment, all sorts of entities are the public:  industry, members of Congress and their staff, and people living inside impact limit lines.   All these members of the public get to comment to the FAA.

The FAA has to take all legally sufficient comments into account.  In other words, the agency’s proposal is just that–a proposal.  The Administrative Procedure Act and the courts do not allow an agency to make up its mind in advance of public comment, and the FAA must explain why it agrees or disagrees with the comments it receives.  Agencies have even changed the final version of regulations in response to comments.

What is a legally sufficient comment?  I used to have a very long-winded explanation about how comments had to be supported by facts and logic.  You had to explain why you didn’t like a proposed regulation, not just say “The FAA should not require six degrees of freedom because it is unnecessary.”  That is an example of the kind of comment the FAA legally gets to ignore.  Fortunately, when my sons reached a certain point in middle-school math, I was reminded of a better way of explaining legal sufficiency:  when you file a comment you must show your work.  This has turned out to be much clearer.

Showing your work provides a couple benefits.  First, you have a much better chance of persuading the FAA to change its mind about something you dislike.  Second, if you really need to fight the rule and appeal it to a federal court, you will do better there.   If you make a good argument in response to the NPRM and the FAA ignores what you said, the court might require the FAA to re-do or revise its regulation.  The FAA, after all, must issue “reasoned” regulations.  This means that the FAA must also show its work and must explain why it disagreed with you.  That disagreement must be rational.

Finally, with Thanksgiving coming tomorrow, I wanted to say I am very grateful to all of you who read this blog, and I have a gift for you today.  My short story Rapunzel is free on Amazon in case you need anything to read while traveling or even just sitting on the Metro.  It is a tale of

First contact

First sacrifice

First answers

Happy Thanksgiving!