AOPA Pilot Magazine - December 2017 - 28

PILOT COUNSEL

Those troublesome TFRs

BY JOHN S. YODICE

Where an exception swallows a rule

JOHN S. YODICE

is a longtime
aviation attorney,
flight instructor,
and Cessna 310
owner.

VIRTUALLY EVERY PILOT has experienced the FAA's
issuance of notices to airmen (notams) that advise
of emergency air traffic rules and regulations that
restrict flight operations. Since the terrorist attacks of
September 11, 2001, a proliferation of such regulatory
notams has affected general aviation in many ways, in
many places, and sometimes without much or any prior
notice. Without questioning their necessity or the FAA's
good faith in adopting them, I am forced to think about
how far we have come from the constitutional principles upon which this country was founded.
Most of you will remember from at least high school
civics class the doctrine of separation of powers and the
system of checks and balances. These principles, which
were built into the U.S. Constitution by our founding
fathers, essentially say there are three distinct functions
of government (the legislative, the executive, and the
judicial); that these functions ought to be exercised by
three separately manned departments of government;
and that those departments should be constitutionally
equal and mutually independent. These principles are
supposed to provide a framework for the workings of
a government of limited powers, with a very important
system of checks and balances.
The ideas were not original with the founders. We
see them as early as Aristotle. The ideas were advocated
by such political philosophers as Montesquieu, John
Locke, and others. We see them articulated by the framers of our Constitution such as James Madison in the
Federalist Papers.
So, what has happened to these ideas? Over more
than 200 years of the history of this country, there has
been a gradual shift in the concentration of power-
first from the states to the federal government, and then
from the federal legislature (the Congress) through the
president to the federal administrative agencies. Today
we see, and have become accustomed to accepting, the
combination of lawmaking and executive and adjudicative functions in self-contained bureaucracies. Laws
such as the federal aviation regulations are made not
by our elected representatives, who are accountable to
their constituents, but by federal executive employees
who do not have such accountability.
This situation was sufficiently bothersome that
in 1946 it led to the enactment of the Administrative
Procedure Act (APA), and subsequent congressional
reforms and presidential orders. The act was really the

28 | AOPA PILOT December 2017

product of a struggle between interests that supported
the programs of the New Deal agencies that had dramatically grown in power, and those that were afraid or
suspicious of the power given to those agencies.
The APA didn't take the legislative function out of
the federal agencies, or restore separation of powers,
but it did require some separation of functions within a
federal agency. That has not proved very effective internally at the agencies. Rather, it attempted to rein in the
powerful agencies by establishing minimal procedural
requirements for many agency proceedings, including
legislative, i.e., rulemaking. The APA clearly intended to
provide input into the rulemaking process by the people
who would be affected by it. It's not the same as having
our elected officials enacting the laws that affect us, but
at least it creates the opportunity for some input.
The APA provides for formal and informal rulemaking. Formal rulemaking involves the opportunity
for a full-blown, formal agency hearing on the record. I
don't remember the FAA ever using formal rulemaking.
Informal rulemaking is the procedure used by most federal agencies, including the FAA. It is commonly called
"notice-and-comment" rulemaking. The act requires
(1) publication of a notice of proposed rulemaking; (2)
opportunity for public participation in the rulemaking by at least the submission of written comments;
and (3) publication of a final rule, and an accompanying statement of its basis and purpose, not less than 30
days before the rule's effective date. These are the procedural floors below which an agency ought not go in
prescribing procedures for particular rulemaking. They
are codified in Part 11 of the FARs.
The APA contains a limited exception to some of
these procedures. A federal agency does not have to
abide by all these procedures if the agency "for good
cause" finds that the notice and public procedure
requirements are impractical, unnecessary, or contrary
to the public interest. This exception, in recent times,
seems to have grown to swallow the general rule.
We seem to have come this far by inches from where
we started. What should be remembered, but may well
have been forgotten in recent times, is the recognition
in the federal statutes of "the public right of freedom
of transit through the navigable airspace" of the United
States. I believe we should continue to be vigilant that
this rulemaking evolution does not slowly rob us of more
and more of our finite navigable airspace.
AOPA
AOPA Pilot Magazine - December 2017

Table of Contents for the Digital Edition of AOPA Pilot Magazine - December 2017
