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Opinion: Solving The FAA’s Rulemaking Communications Conundrum
The U.S. Transportation Department does not prohibit ex-parte communications in informal rulemaking.
During the “fireside chat” opening the 2024 FAA-EASA International Aviation Safety Conference, FAA Associate Administrator for Aviation Safety David Boulter expounded on Administrator Michael Whitaker’s remark about open communication limitations imposed by ex-parte requirements.
The Latin term means that a “one-sided” information exchange took place without the knowledge of all interested parties. In Boulter’s experience, the government’s duty to ensure all stakeholders understand what influenced a rulemaking activity limits communication. Use of the term slams the door on either side asking questions or providing information once the agency begins the rulemaking process.
The FAA leadership mistakes the ex-parte protection as a prohibition against—rather than instructions for—gathering useful information during informal rulemaking. The law (see 5 U.S.C. 533) requires the agency “give interested persons an opportunity to participate . . . through submission of written data, views, or arguments with or without opportunity for oral presentation.” Citing the statute, the Transportation Department’s guidance agrees there are “no explicit prohibitions against ex-parte communications in informal rulemaking.”
Open communication between the agency and interested parties is allowed, and the Transportation Department encourages information exchange by affirmatively stating: “These informal communications . . . provide a means to engage the public and obtain improved data and information and clarification of views that can assist the agency in making well-informed decisions. . . . [The] Department must treat parties equitably in administrative proceedings by making every reasonable effort—including affirmative outreach where appropriate—to afford interested parties an equal opportunity to be heard through ex-parte communications as permitted by the guidelines.”
Maybe recognizing how long a rulemaking project can linger, the department directs its personnel to be “receivers” of information by asking clarifying questions and answering factual ones. The constant exchange of information allows the agency to keep up with industry developments and creates an atmosphere of learning and sharing, an essential element of state and certificate holder safety culture.
Even when a rulemaking is in its final approach, critical information that should change the direction of an outcome needs to be heard, understood and resolved before a final rule is issued. The remedy for bad rulemaking is worse than the cure afforded by critical information being provided at any time before the rule’s effective date.
To remove the ex-parte stigma, there is a requirement to record all communications in the docket including the date, participants and a summary of issues discussed as well as any supporting documentation. The memorandum ensures all interested parties remain informed. It can be prepared by any involved party, and the agency should not edit a record provided by a nongovernment participant.
The law and Transportation Department guidance encourages the FAA to turn “ex parte” into a tool to really listen rather than a process of avoidance. Maybe it is time to change the culture.
Sarah MacLeod is a managing member of Obadal, Filler, MacLeod & Klein and a founder and executive director of the Aeronautical Repair Station Association. She has advocated for individuals and companies on international aviation safety law, policy and compliance issues since the 1980s.
