Washington Law Review


The split-enforcement model of agency administration creates a dilemma for the adjudicating agency regarding how much deference it should allot interpretive documents promulgated by the agency with rulemaking authority. In 1992, Congress sought to resolve this problem in the area of aviation safety by statutorily mandating that the adjudicating agency, the National Transportation Safety Board (NTSB), defer to "validly adopted" interpretations generated by the rulemaking agency, the Federal Aviation Administration (FAA). Ironically, the statute created even more uncertainty because the term "validly adopted" is vague and remains undefined. Subsequent decisions have not clarified exactly when the NTSB considers itself bound. This Comment examines the realm of possible FAA interpretations that could be determined to be "validly adopted" in the context of aviation safety certificate action appeals. This Comment argues that regardless of form, FAA interpretations that meet uniformity and notice criteria and are not arbitrary or capricious should be considered "validly adopted" and bind the NTSB.

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