Aviation: The FAA Rulemaking Process by Capt. Daniel Omale

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The reason for this article is to clearly educate our government, stakeholders, and the general public on how rulemaking or effective policy decision in aviation is processed in a rational country like the USA.

Over the past 50 years, numerous reports have documented the cause and delays in the Federal Aviation Administration (FAA) rule making process. There is no question but the fact is that rulemaking is extremely time-consuming and complex, requiring careful consideration of the impact of proposed rules on the public, aviation industry, the economy, and the environment. The U. S. General Accounting Officer (now Government Accountability Officer) has reported that after formally initiating a rule, FAA took an average of 30 months to complete the rulemaking and 20 percent of the rules took over 10 years or longer to complete. In recent years, difficult rulemaking issues such as changes to the Helicopter Emergency Management System, FAR rules pertaining to hospital Medical Evacuation helicopter flights have taken several years in development in spite of numerous crashes, dozens of fatalities, and NTSB strong public recommendations in this area. Often it takes public outcry and political pressure to move the process forward such as seen in the wake of the Colgan Air Commuter flight crash in Buffalo, New York, in February of 2009.
In general, all government administrative rulemaking is governed under the Administrative Procedures Act (APA), which requires advance notice and opportunity for the public and industry to comment before a rule is issued or amended. Under the Federal Advisory Committee Act, the FAA obtains advice and recommendations from industry concerning the full range of its rulemaking activity including all aviation-related issues regarding such issues as air carrier operations, airman and aircraft certification, airports and noise abatement. The primary committee chartered by the FAA for this purpose is called the Aviation Rulemaking Advisory Committee (ARAC), whose primary purpose is to provide the public an earlier opportunity to participate in the FAA rulemaking process before the formal APA notification period begins.

FAA OFFICE OF RULEMAKING: This office operates under the FAA Associate Administration for Aviation Safety (AVS), and provides the charter and support for the ARAC process. The ARAC process allows the FAA to obtain direct, first-hand information from industry and other experts who are substantially affected by proposed rules. The ARAC consists of approximately 55-member organisations selected by the FAA as most representatives of the various viewpoints of those impacted by FAA organisations. The activities of the ARAC are advisory only, and while given great weight, they do not circumvent the formal APA rulemaking process.
STEPS IN THE FORMAL PROCESS: The formal FAA rulemaking procedures are provided in Question and Answer format in 14 CFR Part.
The Secretary of Transportation reviews FAA programmes for regulatory compliance. The Department of Transportation (DOT) secretary notifies the FAA of schedules for certain projects, expresses general departmental policy issues, and identifies specific areas of concern.
The FAA, through the DOT secretary, submits to the Office of Management and Budget (OMB) an annual draft regulatory programme. The programme covers regulatory policies, goals, and objectives and also provides information concerning significant regulatory actions or actions that might lead to rulemaking. The OMB reviews the program to ensure that all proposed regulatory actions are consistent with administration principles.
After a rule is cleared to proceed, the appropriate FAA programme office organises a team to manage each rule. This team proceeds with input from the ARAC team and other interested parties. An Advance Notice of Proposed Rulemaking may be prepared and published at this point to obtain additional information, followed by a draft Notice of Proposed Rulemaking (NPRM), which is reviewed for regulatory impact analysis when appropriate. An impact analysis includes potential costs and benefits imposed on society, lower-cost approaches that were not chosen and why, and an explanation of any legal preclusions from cost/benefit criteria. When the team receives the regulatory impact analysis, it develops a new draft and briefs the principals (associate administrators, etc.) of interest. Following the principals’ briefing, the team coordinates the package at the branch and division levels. After the branches and divisions concur, the package is coordinated with the principals. Next, the Associate Administrator for Aviation Safety reviews the package and forwards it to the chief counsel, who prepares the package for Office of the Secretary of Transportation and OMB review.
After the FAA review process is complete, the FAA chief counsel submits the NPRM package to the Department of Transportation (DOT).
After they sign off, the package is finally forwarded to the Office of Management and Budget (OMB) for its review.
If anyone at any stage in the process objects, the package is reworked until the problem is resolved. At that point, the FAA re-coordinates the package with the appropriate people. This process continues until everyone concurs or at least until all comments are considered.
After the Notice of Proposed Rulemaking is published in the Federal Register, the public comments on the rule for a set period. At the close of the comment period, the FAA compiles the comments and considers appropriate changes in the rule. It develops a draft of the final rule and the whole process starts again. The final rule is review by the FAA, the Office of the Secretary of Transportation (OST), and the OMB. After the rule clears the process again, the OMB releases it to the FAA. The administrator issues the final rule and has it published in the Federal Register. Once a regulation is completed and has been printed in the Federal Register as a final rule, it is “codified” by being published in the Code of Federal Regulations (CFR). The CFR is the official record of all regulations created by the federal government. These regulations are organised into 50 topics called titles or volumes. FAA regulations are  found in Title 49 of the CFR.
Most analysts of the FAA rulemaking process agree that the area most in need of improvement is that of timeliness in identifying and responding to safety issues. Critics complain that excessive delays in the rulemaking process complicate and delay new or amended certification programs and make them more costly. They complain of excessive rewriting and divergent rules for different aircraft categories when such rules should be identified. Some critics blame the Office of the Secretary of Transportation and the Office of Management and Budget for much of the delay.
The problem of rulemaking delay seems to lie with the whole process, not just the DOT, the OMB, or the FAA. In any case most analysts agree that the rulemaking process needs to be streamlined. The essential steps in developing sound public safety policy must be identified, and the rest eliminated.
Source: Commercial Aviation safety Fifth Edition