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Rulemaking

U.S. agencies (including the FAA) are under the auspices of the executive branch (Office of the President), but get authority to issue regulations from laws (statutes) enacted by Congress. An agency may not take action that goes beyond its statutory authority otherwise it violates the Constitution.

Agencies must follow an open, public process when issuing rules and other materials that impact the rights of the persons being regulated. The APA, enacted June 11, 1946, requires agencies inform the public of organization, procedures and rules, and allow for public participation in the rulemaking process.

Unless there is a good cause, the APA requires proposed rules to be published in the Federal Register, that agencies invite and consider public comment on the proposal, and the final rule must also be published in the Federal Register. Indeed, the agency must also explain why it has taken any particular action in the preamble to both the proposal and final rules. The vast majority of federal regulations are issued using this “notice and comment” process.

In addition to the formal rulemaking process, agencies must also consider myriad Executive Orders which require, among other things, that regulations be accessible, consistent, written in “plain language”, and that agencies consider their “cumulative effects.”

Regulations

A regulation is a general statement issued by an agency that has the force and effect of law.

The CFR is the compilation of the general and permanent rules of federal agencies and departments published in the Federal Register. Each title is divided into chapters (usually bearing the name of the issuing agency), each chapter divides into “parts” and “subparts” which are further allocated into “sections”. Citations to the CFR normally refer to material at the section level (e.g., 14 CFR § 145.207).

Specifically, Title 14 CFR, parts 1 through 199 (formerly known as the Federal Aviation Regulations) govern the design, production, sales, operation, and maintenance of civil aviation articles.

For example, Airworthiness Directives (ADs), those notifications issued to correct an unsafe condition in a product, are “regulations” since they are legally enforceable requirements issued by the FAA under its “general rulemaking” power and 14 CFR part 39.

Guidance materials

Advisory Circulars (ACs)

ACs are issued as guidance to the aviation public. They are one means, but not the only means, of showing compliance with a particular regulation or requirement. Following the agency issued guidance is typically “the path of least resistance” since individual FAA inspectors know that compliance with the AC reflects accepted national policy on a given issue. These documents are available on the FAA’s regulatory and guidance library.

Orders, Notices and Bulletins

FAA orders, notices and bulletins are documents that provide information to FAA employees. These documents are essential sources of information on what the FAA expects of applicants and certificate holders. Most of these documents can be obtained on the FAA’s regulatory and guidance library.

An order is considered an “internal agency mandate”. It is issued by the agency, to agency staff to explain a position on a specific question not directly addressed by a statute or regulation. Orders, like other non-legislative rules (e.g., ACs, notices, general statements of policy), are not created under delegated authority from Congress and most do not have to go through notice and comment under the APA.

Orders are meant to be binding (or provide direction) only to FAA employees, and not the public at large. However, if an inspector feels bound to act in a particular way because of direction in the “handbook”, that decision has real practical effect to those subject to FAA regulation. Therefore, internal government documents cannot be contrary to the plain language of the regulation or any clarification in the agency’s preamble to the rule.

Order 8900.1 “FSIMS” was established as the repository of all Flight Standards policy and guidance concerning Aviation Safety Inspector (ASI) job tasks. The primary audience for this order is Flight Standards operational and administrative employees. For the public, the order cannot have regulatory effect, although knowing the requirements for FAA employees helps the certificate holder comply with nuances.

Aircraft Certification Service Policy Memoranda

These documents are issued by the Production and Airworthiness Certification Division of the Aircraft Certification Service (AIR), which is responsible for design and production activities in the FAA. As with all internal guidance, they reflect FAA headquarters’ policy related to the manufacturing and certification of civil aviation products, articles and parts. Information on this division and its publications can be obtained on the FAA’s regulatory and guidance library.

Legal Interpretations

Legal interpretations of the aviation statutes and 14 CFR are issued by the Office of the Chief Counsel in FAA headquarters and by the various Regional Counsels’ offices in the nine FAA regions. The interpretations are typically issued in response to inquiries from the aviation community or from one of the FAA’s own field offices, such as a Flight Standards District Office (FSDO), Aircraft Certification Office (ACO), and Manufacturing Inspection District Office (MIDO) or through an FAA regional operating division. Interpretations are generally made available on the FAA Chief Counsel’s website.

To view ARSA’s archived rulemaking content, click here


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