Repeal of the “2-for-1” Rule

Regardless of your political viewpoint, presidential executive order 13771 may be fertile ground for a study of the “law of unintended consequences” and it’s affect on the world of aviation. It’s entirely possible that the executive order (and subsequent CFR changes) provided benefits in realms outside of aviation; however, I’m not going to attempt to address its widespread impact. Rather, aviation is why we are here and there is a reasonably wide consensus that the changes due to the executive order made aircraft certification less efficient over the 4 years it was on the books. In terms of the “law of unintended consequences”, it appears it fell into the camp of an “unexpected drawback” in regards to aviation rulemaking, national policy, and guidance.

Executive Order 13771

Executive order 13771 was signed on January 30, 2017. It directs executive departments or agencies to identify at least two existing regulations to be repealed for every new proposed regulation. Furthermore, any costs associated with new regulations must be offset by the elimination of costs associated with at least two prior regulations. This language also impacted FAA national policy and guidance because Section 4 defines “regulation” or “rule” as any statement which interprets law or policy or describes procedural requirements of an agency. This significantly slowed the FAA’s ability to update ACs, policies TSOs, orders, as well as rulemaking.

49 CFR Part 5

An amendment to 49 CFR part 5 was published on December 27, 2019 which incorporated the directives of executive order 13771. The supplementary information of the final rule states in part, “The final rule outlines the Department’s regulatory policies, such as ensuring that there are no more regulations than necessary, that where they impose burdens, regulations are narrowly tailored to address identified market failures or statutory mandates, and that they specify performance objectives when appropriate.” The language of Section 5.5 was updated in 2019 to reflect this and it included the “2 for 1” rule specifically in 49 CFR 5.5(g) which stated, “For each new significant regulation issued, agencies must identify at least two existing regulatory burdens to be revoked.”

Unintended Consequences

It stands to reason that maintaining a level regulatory cost burden of new regulations by requiring the removal of existing regulations could be logical. What seems to be missing is any recognition of changes in technology. Regulating aerospace is a constant regulatory game of “catch up” while the industry keeps innovating. It becomes an unreasonable position to remove regulations for existing technology because something new and innovative has become practical and requires a new regulatory approach. This forces the regulatory landscape to essentially freeze in time and makes it difficult for agencies like the FAA to make changes which would actually improve certification efficiency. It certainly didn’t seem to allow the FAA to promulgate regulatory and guidance documents in a way that is consistent with the Administrative Procedures Act (APA).

Repeal

Executive order 13771 was revoked by executive order 13992 on January 20, 2021. Even though executive order 13771 was no longer in effect, 49 CFR part 5 was still on the books an needed to be changed in order to finalize the overall repeal. A new amendment to 49 CFR part 5 published on April 2, 2021 finalizing the update to the Department of Transportation administrative rulemaking and guidance procedures.

Working the Backlog

Now that executive order 13771 and it’s associated 49 CFR part 5 regulations have been repealed, we can expect FAA to start sending a backlog of updated regulatory material such as ACs, policies, TSOs, and orders down the rulemaking pipeline soon. These changes to rulemaking and guidance procedures have had the support of the General Aviation Manufacturers Association (GAMA) because the FAA needs to have the ability to update and promulgate regulatory material so the FAA is keeping pace with industry changes. Without this ability, FAA is forced to use other less efficient tools such as issue papers and special conditions for repetitive issues that should be incorporated into rulemaking and guidance material.

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