Accepting Foreign Airworthiness Directives - A More Dramatic Change Than It Might Appear

摘要

Congress has passed a new FAA Reauthorization Act. The law authorizes FAA expenditures but it is also used as a vehicle for changing substantive law, as well. This year's law includes a provision that could pose a thorny issue for Americans, in that it offers an opportunity for the FAA to potentially side-step traditional rulemaking processes in favor of acceptance of foreign rules. The specific provision at issue is found in Section 242 of the FAA Reauthorization Act. That provision allows the FAA to inter into biateral agreements under which the FAA would accept foreign Airworthiness Directives. As with any other FAA Reauthorization provision, the devil is in the details, and how the FAA implements this provision through its regulatory structure will be vitally important. Under current law and regulations, Airworthiness Directives are regulations, and as such they are subject to the due process requirements spelled out in the Administrative Procedures Act (APA). This means that under normal circumstances, an Airworthiness Directive cannot be issued by the FAA unless the FAA first publishes the proposal in the Federal Register, seeks comments from the public, considers those comments, and then publishes a final rule version of the Airworthiness Directive.