Director of Regulatory Compliance Studies at Loyola University Chicago School of Law
In continuing to examine the regulatory Wunderkammer of the Federal Register, the first volume of the year holds some interesting items in its opening pages. Page 1 of the 81st volume starts out somberly with Executive Order 13757, “Taking Additional Steps to Address the National Emergency With Respect to Significant Malicious Cyber-Enabled Activities.” This involves blocking and freezing assets for five Russian entities and four Russian nationals. The Russian Affair is beyond the scope of this post, so let’s set this entry aside and move on to the more interesting and curious second posting in the first issue. Page 5 sets out a final rule published by the Federal Aviation Administration related specifically to two types of Boeing airplanes (767-200 and 767-300). While at first this might look like a yawning notice, there are several curiosities to explore.
The regulation is entitled “Airworthiness Directives; The Boeing Company Airplanes.” There is more than enough material in these three pages to construct a fairly complex Administrative Law final exam. My goal in this post is simply to raise some questions about the challenge of trying to comply with a regulation such as this one, but perhaps one of my student bloggers will take me up on the challenge of addressing a few of the odd questions springing from this final rule. I will refer to this final rule as the Boeing final rule.
Is a regulation in the form of a question a regulation?: The Boeing final rule is an amendment to 14 CFR 39.13. It’s quite clear it is a formal amendment: “The FAA amends § 39.13 by adding the following new airworthiness directive (AD)” But we will not be seeing this amendment of 14 CFR 39.13 in the CFR very soon for the underlying regulation states in full:
39.13 Are airworthiness directives part of the Code of Federal Regulations?
Yes, airworthiness directives are part of the Code of Federal Regulations, but they are not codified in the annual edition. FAA publishes airworthiness directives in full in the Federal Register as amendments to § 39.13.
The reader is not reading an FAA FAQ; that is the regulation. The title of the regulation ends with a question mark, transforming the regulation into a question. The body of the regulation is an answer. Not to be mistaken as the inner dialogue of the administrative state, this is not uncommon to find in the CFR even if it is unbearably strange. See for example the kick-off regulation for human subject research, 45 CFR 46.101 (“To what does this policy apply?).
Is a regulation that is not codified in the CFR a regulation?: The reader should look a bit deeper at what is the answer to the regulation title. It states that “airworthiness directives are part of the Code of Federal Regulations but they are not codified in the annual edition.” So, it seems we have a formal amendment to an agency regulation that is not made a part of the official codified rules. The regulation portends to give the FAA legal authority to amend this particular regulation but not obligate the amendment be reflected in the publication of the regulation. Boeing can take some comfort that its final rule starts on page 5, so the company does not need to look very far to find the part of the regulation that applies to it. (Sidenote: APA Sec. 553(b) only states that a proposed rule must be published in the Federal Register. It does not mention the CFR. And 553(d) on final rules does not mention where the final rule must be published.)
There is only one regulated actor in this regulation: Some laws try to describe a condition or an item so narrowly that as a matter of practicality there is only one regulated actor, but the law usually contains at least some charade of semblance that the law is broadly applicable to any actor that can fit inside the eye of the rule’s needle. In the Boeing final rule, there is only one regulated actor, Boeing. The company is named and the product is named. Even if this is the way of the world in aviation law, it is a bit starting to see a specific company’s name in a law that regulates activities, particularly when the name of the company stands alone as the only actor being regulated. Would it be equally appropriate to adopt a regulation that states “John Smith shall not use crosswalks between 11am and 12pm on Wednesdays”? A law that regulates one person by name makes most people shudder.
Verbs in laws should be easy to find: The amendment has a code reference of Amendment 39–18733 and contains the usual sub-sections found in regulations. One of the sub-sections is enormously confusing (at least, to me). Here is sub-section (h) in its entirety:
(h) Corrective Actions
If any defect (e.g., rifling, gouging, nicks, or burrs, or excessive surface roughness) is found in any fastener hole (other than normally produced during a typical reaming operation), during accomplishment of any inspection (related investigative actions) required by this AD, and Boeing Alert Service Bulletin 767–53A0267, Revision 1, dated August 4, 2016, specifies to contact Boeing for repair instructions: Before further flight, repair in accordance with the procedures specified in paragraph (k) of this AD.
There are 76 words in this regulation but it is difficult to find the main verb. The verb in a regulation is critical – the verb tells the regulated actor what it must do or must not do. Without a verb there is no command. I would go further and say that a law without a verb is no law. It seems “repair” is the verb, but it’s a bit iffy. There is a long conditional lead up (“If any defect….”) with a bundle of dependent clauses before we get to something like a command verb. The lead up of dependent clauses stops abruptly with a colon. After the colon is “Before further flight, repair in accordance with….” (emphasis added) The “before” clause with the verb “repair” appears to be the part of the attempted sentence which states what the actor must do, but the command is hiding behind the oddity of a colon rather than slipping into the usual warm glove of an “if, then” format.
Everything I know about aviation law is wholly contained in this post. Perhaps this is all very usual for aviation regulations but we certainly received a real treat in the first issue of the year with the ability to review the Boeing final rule.
And so the new year in regulatory compliance starts off with its first final rule that is an amendment to a regulation that is written in the form of a question, a regulation mainly stating that any amendments to the regulation will never be reflected in any future codified publication of the regulation. One of the first rules in trying to comply with a law is, find the law. This is easier said than done. Through the looking-glass we go into 2017.