On December 27, 2019, the Department of Transportation, of which the Federal Aviation Administration is one part, released a final rule with changes to its rulemaking processes. Additionally, the new rules codify DOT’s “internal procedural requirements governing the review and clearance of guidance documents and the initiation and conduct of enforcement actions, including administrative enforcement proceedings and judicial enforcement actions brought in Federal court.”
Section 5.1 of Title 49 of the Code of Federal Regulations applies DOT’s amended regulations to the FAA. The DOT rule also amends specific provisions of the FAA’s regulations governing rulemaking, which may be found at 14 C.F.R. part 11.
Section 5.5 of the new regulations provides protections to the regulated public:
Regulatory policies.
The policies in paragraphs (a) through (j) of this section govern the development and issuance of regulations at DOT:
(a) There should be no more regulations than necessary. In considering whether to propose a new regulation, policy makers should consider whether the specific problem to be addressed requires agency action, whether existing rules (including standards incorporated by reference) have created or contributed to the problem and should be revised or eliminated, and whether any other reasonable alternatives exist that obviate the need for a new regulation.
(b) All regulations must be supported by statutory authority and consistent with the Constitution.
(c) Where they rest on scientific, technical, economic, or other specialized factual information, regulations should be supported by the best available evidence and data.
(d) Regulations should be written in plain English, should be straightforward, and should be clear.
(e) Regulations should be technologically neutral, and, to the extent feasible, they should specify performance objectives, rather than prescribing specific conduct that regulated entities must adopt.
(f) Regulations should be designed to minimize burdens and reduce barriers to market entry whenever possible, consistent with the effective promotion of safety. Where they impose burdens, regulations should be narrowly tailored to address identified market failures or specific statutory mandates.
(g) Unless required by law or compelling safety need, regulations should not be issued unless their benefits are expected to exceed their costs. For each new significant regulation issued, agencies must identify at least two existing regulatory burdens to be revoked.
(h) Once issued, regulations and other agency actions should be reviewed periodically and revised to ensure that they continue to meet the needs they were designed to address and remain cost-effective and cost-justified.
It will be interesting to see how much of this is reflected in the FAA’s “streamlined” regulations for launch and reentry.
Update on January 12: On January 13, 2020, the Department will issue a correction to footnote 8.
If the FAA has to revoke two existing rules for every new rule that may effectively end the rulemaking process. No more Wednesday rule meetings to hear why the economosts haven’t finished their analysis!
Alternatively, this could also lead to some creative counting of “regulatory burdens” to meet the 2 to 1 ratio.
Interesting!
It is! I think the FAA has to have been engaged in that two for one exchange for a couple of years now. The President ordered it early on in his administration. The second half of this post talks about it: https://groundbasedspacematters.com/index.php/2017/02/03/thoughts-on-current-events-in-congress-and-the-administration-the-cra-and-an-e-o/
Also, I’m sure those Wednesday meetings will continue. Have faith.