Mark Twain used to say, “History doesn’t repeat itself, but it does rhyme.” In other words, things may not happen exactly as before, but similar occurrences from the past reappear in the present.

On Aug. 12, the Federal Aviation Administration (FAA) proved Twain right when it issued a notice of proposed rulemaking (NPRM) for an airworthiness directive (AD) on the replacement of certain cylinder assemblies.

If finalized in its current form, the AD will have far-reaching implications on those directly impacted, which are primarily small businesses. Of concern to the broader aviation industry is the FAA’s failure to follow the most basic requirements for promulgating a regulation and the gross underestimation of the AD’s repercussions for small businesses. The agency disregarded congressional laws (including the Regulatory Flexibility Act (RFA) and the Small Business & Regulatory Enforcement Fairness Act), internal guidelines, and executive orders. It issued an NPRM without placing the proper economic analyses in the docket to substantiate its claims that small entities won’t be detrimentally affected by the rule.

Does this sound familiar?  You may recall the lengthy battle between ARSA and the FAA over the agency’s 2006 anti-drug and alcohol rule change. In a 2007 decision, the United States Court of Appeals for the District of Columbia Circuit ordered the FAA to perform an economic analysis of its rule, as required by the RFA. The FAA ignored the court’s mandate for over three years.

In February 2011, ARSA filed a petition to compel the FAA’s compliance with the court’s directive. Siding with ARSA, the court issued an order on March 1, 2011, directing the agency to respond to the petition. In its reply, the FAA apologized for the delay and rationalized its inaction by pointing to the existence of the supplemental notice. Although the FAA dismissed ARSA’s comments to the “supplemental” RFA analysis, the association strongly believes the rule does have a substantial economic impact on small businesses.

ARSA has made it a priority to ensure federal agencies follow mandates to properly assess the economic implication of regulatory actions. Agencies shouldn’t be permitted to blatantly run afoul of the law without repercussion. Consequently, ARSA delivered a letter to the Small Business Administration’s Office of Advocacy urging it to hold the FAA accountable for ignoring the RFA. The Advocacy Office works within the federal government, educating regulators about their obligation to consider how small entities will be affected by regulatory proposals. Clearly, more education is needed and the association will continue to do everything in its power to ensure small business protections aren’t ignored by federal agencies.