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ARSA CORNER


BY BRETT LEVANTO, VICE PRESIDENT OF OPERATIONS, AERONAUTICAL REPAIR STATION ASSOCIATION


ARE WE THERE YET?


IN LATE 2017, THE U.S. DEPARTMENT OF JUSTICE RELEASED A MEMORANDUM DESCRIBING THE AGENCY’S “PROHIBITION ON IMPROPER GUIDANCE DOCUMENTS.” IN JANUARY OF 2018, THE DEPARTMENT TOOK ANOTHER STEP TO PROHIBIT RULEMAKING BY GUIDANCE BY ISSUING A MEMORANDUM LIMITING THE USE OF GUIDANCE DOCUMENTS IN DECISIONS TO FILE LAWSUITS ON BEHALF OF THE GOVERNMENT.


As part of the department’s


regulatory reform efforts, the initial “prohibition” established its commitment to “abide by constitutional principles” in promulgating regulations. Those principles, the memorandum explains, demand that the agency regulate only within its Congressionally-delegated authority and abide by the notice- and-comment procedures required by the Administrative Procedure Act. “Not only is notice-and-comment


rulemaking general required by law, but it has the benefit of availing agencies of more complete information about a proposed rule than the agency could ascertain on its own, and therefore results in better decision making by regulators,” the November 2017 memorandum said. Building off this foundation, the


January 2018 memo made clear: “The Guidance Policy [of November 2017] also prohibits the Department from using its guidance documents to coerce regulated parties into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or lawful regulation.” In the midst of its regulatory


reform initiatives, the DOJ had provide a clear standard for regulatory compliance: The agency promulgates rules within its legal purview, using


a thorough process for soliciting public input, and does circumvent or annotate its legislative rulemaking authority through the use of easier- to-amend guidance documents. The DOJ memos prompted ARSA to consider the long-troubling state of guidance in aviation safety against the FAA compliance philosophy’s approach to “deviations from regulatory standards, as defined in the Agency’s safety oversight guidance.” “It sure would be nice if all agencies were as conscientious in the issuance of ‘guidance’ to their workforces and the public,” Executive Director Sarah MacLeod opined in her “Legal Brief” for the April 2018 edition of ARSA’s members-only newsletter, the hotline. Flash forward to December of last


year: The Department of Transportation issued its own memorandum describing its “Review and Clearance of Guidance Documents.” In the DOT document, General Counsel Steven Bradbury described the process and criteria for agency personnel to develop, review and release guidance in a manner that ensures it “remains lawful, reasonable, consistent with Administration policy, understandable, and readily accessible to the public.” (As a modal organization within DOT, the FAA conforms to department- wide standards.)


The memo makes clear a “guidance document…is not intended to have the force or effect of law in its own right…[it] avoids using mandatory language, such as ‘shall,’ must,’ ‘required,’ or ‘requirement,’ unless the language is describing an established statutory or regulatory requirement or is addressed to DOT staff and will not foreclose the Department’s consideration of positions advanced by affected private parties.” This principle is fundamental


to regulatory implementation for executive branch agencies and supportive of compliance by the public. The concept is expressed government-wide in a 2007 bulletin issued by the Office of Management and Budget on “Agency Good Guidance Practices,” which is cited by both the DOJ and DOT memos. In fact, the prohibition against certain words that could imply legal obligation is almost verbatim from the bulletin.


“Guidance documents, used


properly, can channel the discretion of agency employees, increase efficiency and enhance fairness by providing the public clear notice of the line between permissible and impermissible conduct while ensuring equal treatment of similarly situated parties,” the OMB bulletin said. “Experience has shown, however,


22 DOMmagazine.com | june 2019


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