{"id":349,"date":"2017-01-06T06:40:31","date_gmt":"2017-01-06T06:40:31","guid":{"rendered":"http:\/\/blogs.luc.edu\/compliance\/?p=349"},"modified":"2017-01-06T06:40:31","modified_gmt":"2017-01-06T06:40:31","slug":"the-opening-of-2017-in-regulatory-compliance","status":"publish","type":"post","link":"https:\/\/blogs.luc.edu\/compliance\/?p=349","title":{"rendered":"The Opening of 2017 in Regulatory Compliance"},"content":{"rendered":"

Ryan Meade<\/em>
\n Editor-in-Chief<\/em>
\nDirector of Regulatory Compliance Studies at Loyola University Chicago School of Law<\/em><\/p>\n

 <\/p>\n

In continuing to examine the regulatory Wunderkammer of the Federal Register, the first volume of the year holds some interesting items in its opening page<\/a>s. Page 1<\/a> of the 81st<\/sup> volume starts out somberly with Executive Order 13757, \u201cTaking Additional Steps to Address the National Emergency With Respect to Significant Malicious Cyber-Enabled Activities.\u201d\u00a0 This involves blocking and freezing assets for five Russian entities and four Russian nationals.\u00a0 The Russian Affair is beyond the scope of this post, so let\u2019s set this entry aside and move on to the more interesting and curious second posting in the first issue. Page 5<\/a> sets out a final rule published by the Federal Aviation Administration related specifically to two types of Boeing airplanes (767-200 and 767-300).\u00a0 While at first this might look like a yawning notice, there are several curiosities to explore.<\/p>\n

The regulation is entitled \u201cAirworthiness Directives; The Boeing Company Airplanes.\u201d There is more than enough material in these three pages to construct a fairly complex Administrative Law final exam.\u00a0 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.<\/p>\n

Is a\u00a0regulation in the form of a question a regulation?<\/u>:<\/strong> The Boeing final rule is an amendment to 14 CFR 39.13.\u00a0 It\u2019s quite clear it is a formal amendment: \u201cThe FAA amends \u00a7 39.13 by adding the following new airworthiness directive (AD)\u201d\u00a0 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:<\/p>\n

39.13 Are airworthiness directives part of the Code of Federal Regulations?<\/em><\/p>\n

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 \u00a7 39.13.<\/em><\/p>\n

The reader is not reading an FAA FAQ; that is the regulation.\u00a0 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 (\u201cTo what does this policy apply?).<\/p>\n

Is a\u00a0regulation that is not codified in the CFR a regulation?:<\/u><\/strong>\u00a0The reader should look a bit deeper at what is the answer to the regulation title. It states that \u201cairworthiness directives are part of the Code of Federal Regulations but they are not codified in the annual edition.\u201d\u00a0 So, it seems we have a formal amendment to an agency regulation that is not made a part of the official codified rules.\u00a0 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.\u00a0 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.)<\/p>\n

There is only one regulated actor in this regulation<\/u>:<\/strong> 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\u2019s 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\u2019s name in a law that regulates activities, particularly when the name of the company stands alone as the only actor being regulated.\u00a0 Would it be equally appropriate to adopt a regulation that states \u201cJohn Smith shall not use crosswalks between 11am and 12pm on Wednesdays\u201d? A law that regulates one person by name makes most people shudder.<\/p>\n

Verbs in laws should be easy to find<\/u>:<\/strong> The amendment has a code reference of Amendment 39\u201318733 and contains the usual sub-sections found in regulations. One of the sub-sections is enormously confusing (at least, to me).\u00a0 Here is sub-section (h) in its entirety:<\/p>\n

(h) Corrective Actions<\/em><\/p>\n

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\u201353A0267, 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.<\/em><\/p>\n

There are 76 words in this regulation but it is difficult to find the main verb. The verb in a regulation is critical \u2013 the verb tells the regulated actor what it must do or must not do.\u00a0 Without a verb there is no command.\u00a0 I would go further and say that a law without a verb is no law.\u00a0 It seems \u201crepair\u201d is the verb, but it\u2019s a bit iffy.\u00a0 There is a long conditional lead up (\u201cIf any defect\u2026.\u201d) 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.\u00a0 After the colon is \u201cBefore further flight, repair<\/em> in accordance with\u2026.\u201d (emphasis added) The \u201cbefore\u201d clause with the verb \u201crepair\u201d 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 \u201cif, then\u201d format.<\/p>\n

Everything I know about aviation law is wholly contained in this post.\u00a0 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.<\/p>\n

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.\u00a0 One of the first rules in trying to comply with a law is, find the law.\u00a0 This is easier said than done.\u00a0 Through the looking-glass we go into 2017.<\/p>\n","protected":false},"excerpt":{"rendered":"

Ryan Meade Editor-in-Chief 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, \u201cTaking …
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