Regulatory

US Election May Put New FAA Actions on Hold

By James T. McKenna | July 15, 2016


How will the run-up to November's U.S. presidential election affect the helicopter community? For one thing, it might stall any new rulemaking actions and policy initiatives (except emergency ones) addressing safety problems. 
 
It has become a tradition in Washington toward the middle of a presidential election year for the message to come down from above in the federal government's executive branch: "Thou shalt do no new rulemaking."
 
"One reason is to avoid any executive agency actions that might stir up controversy and influence the election," said a retired senior FAA official. 
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"Executive offices are instructed not to do anything in the regulatory or policy arena unless it already has been cleared and is part of the game plan," said another former top federal-agency official and longtime government operative.
 
"The agency can proceed with rulemaking and initiatives that were in the works and aren’t controversial," said former presidential appointee to an executive-branch agency with decades of experience dealing with the FAA. "Everything else generally has to wait. The exception is emergency actions to deal with air safety issues."
 
New rulemaking is particularly discouraged in the midst of an election when a sitting president seeks to stay in office. But in 2000, when VP Al Gore sought to succeed President Bill Clinton, the latter's administration was firm in forestalling new rules that might hinder Gore's efforts (which failed when George W. Bush was inaugurated). Those R&WI interviewed said they expect President Barack Obama likewise will seek to fend off problems for Hillary Clinton's presidential campaign.
 
It is unclear whether the word has gone out yet this year or whether it will affect matters like the FAA's review of a proposal to review policy that the industry argues has all but killed development of new, single-engine, IFR-certificated helicopters of implementation of the agency's proposed policy on inlet barrier filters.
 
A federal agency like the FAA can spend years identifying, developing, justifying and gaining support for new regulations and policies. For the FAA, that means an office like the Rotorcraft Directorate or Flight Standards Service must pitch proposed actions all the way up the chain to FAA headquarters. 
 
HQ then vets all proposed actions from throughout the agency and prioritizes which ones will be pursued in the following year. The FAA generally doesn't pursue more than 15 or 20 rules in any given year (emergency actions not included).
 
FAA officials then must get support to proceed with the new rules from the Transportation Dept. and the White House's Office of Management and Budget. Every bit as important, they must get buy-in from key staff members on aviation-related and budget committees in the U.S. Senate and House of Representatives. Staff members steer the decision-making of senators and representatives who vote on bills affecting the aviation agency. They don’t like to be surprised by an executive agency's actions.
 
Only when those boxes are checked can an agency like the FAA move forward on its rulemaking/policy game plan.  
 
The former senior FAA official said the directive to avoid new rulemaking and policy efforts also is aimed at cutting down on "midnight regulations." The term harkens back to 1801, when President John Adams in his final weeks of office signed controversial legislation reorganizing and expanding the federal judiciary. 
 
Adams was up until midnight of his last day in office signing appointments of 16 new federal judges authorized under the new law, but his successor, Thomas Jefferson, refused to recognize the new judges. The fight went to the Supreme Court, leading to the decision (in Marbury v. Madison) that established the principle that the high court could overturn laws that it deemed violated the Constitution.
 
“Midnight regulations” came into use after the 1980 presidential election. Jimmy Carter, who lost to Ronald Reagan, published a record number of new federal rules — 4,531 pages of them — between Election Day and Reagan’s January inauguration, according to a 2008 paper by Antony Davies and Veronique de Rugy of George Mason University's Mercatus Center. 
 
Bill Clinton broke that record in 2000, those authors said, publishing 26,542 pages of new rules in his last three months in office.
 
“Midnight regulations” are not unique to Democrats, the authors said, noting that President George H.W. Bush’s admin. “in its waning months it issued a large number of regulations” despite a self-imposed regulatory moratorium.
 
 
 

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