“A foolish consistency is the hobgoblin of little minds . . .”
Regulatory inconsistency and misunderstanding invites chaos, confusion, and danger. The FAA, like many regulatory agencies, has had longstanding problems with inconsistent interpretation of the web of regulations it enforces. The FAA Modernization and Reform Act of 2012 mandated a review to determine the root causes of these inconsistencies and to propose changes.
In November 2012, the FAA received a report highlighting problems from the FAA’s continued reliance on unofficial “guidance” documents. These unofficial guidance documents were often unknown to the public or difficult to find, and Flight Standards personnel in different offices were not uniformly using them.
After considering this report for over a year, the FAA finally took what it described as the “first step” in addressing this problem. The FAA sent a memorandum to all Flight Standards employees, notifying them that as of January 15, 2014, any “guidance document (e.g. policy memoranda, e-mails from policy divisions, letters, interpretations, and/or cancelled guidance documents such as Notices, HBATs, Orders, Advisory Circulars) not incorporated into one of the official databases is cancelled.”
Despite these good intentions, there is a natural tendency to backslide. A good example of this is the arguments made by the FAA in the recent case involving the ban on commercial drone operation. Despite the fact that the FAA has officially backed-off from use of unofficial guidance documents, the FAA based its position before the Administrative Law Judge in large part on Policy Notices 05-01 and 08-01, which were issued and intended solely as internal guidance for FAA personnel.
The regulator does deserve a certain amount of sympathy and understanding. Regulating well is both time consuming and difficult. There is a natural tendency to evade the rigors of the rulemaking process and try to deal with issues more quickly. Unfortunately, operating a business in a heavily regulated environment is also difficult. Consistency and clarity are the gold standard of any regulatory scheme. Every time the regulator uses short-cuts, it creates uncertainty, which undermines any hope of compliance by the regulated.
The FAA’s decision to cancel the use of unofficial guidance in its regulatory and enforcement actions is a good first step towards solving this long-standing problem. Hopefully, it won’t take another year to make the second step.
(Originally posted April 1, 2014)