It Takes a Village to Make a Rule
- (Editor's note: Ever get dazed and confused by the constant swirl of FARs, NPRMs, ADs and all the other regulatory acronyms in the FAA's alphabet soup? Well, so do we. Our man in DC tries to sort it out.)
By CHARLES SPENCE
(from the 4/13/01 Issue of "The Flyer," with the publisher's permission)
WASHINGTON, DC -- They are called FARs, or, more formally, Federal Aviation Regulations. Just about anyone who is involved with aviation is familiar with the term. Most people have at least read portions of the FARs. After all, familiarity is a prerequisite for getting a pilot's license.
The FARs have many sections. Those that address general aviation consume about 400 pages in the annual editions of the Aeronautical Information Manual/ Federal Aviation Regulations (AIM/FAR). In addition to their voluminous proportions, they are constantly being modified.
The regulations have nearly 100 parts, ranging from ultralights, to parachuting, to airlines, to flight schools, to commercial space transportation.
Rule changes come from several sources. Of course, the FAA might identify changes in aviation technology or operations, or it might discover a problem. When the Global Positioning System became effective, the FAA issued a whole set of rules governing certification, installation and operation of the world's new satellite navigation system.
The public, including aviation associations, can petition the FAA to change a rule or add one. One example is a petition by Aircraft Owners and Pilots Association to establish a rule that prohibits alcohol consumption for a period of eight hours before acting as a crew member. When general aviation faced allegations by the media and some airline interests 25 years ago over intoxicated pilots, AOPA sought to soften the criticism by asking the FAA to establish the "eight hours from bottle to throttle" regulation. The FAA agreed.
Congress can order the FAA to issue or amend a rule. A recent example is the changes at Reagan Washington National Airport, where Congress instructed the FAA to revise a policy that prohibited nonstop flights beyond specified limits.
The executive branch of government may also direct the FAA to take action. Orders might come in the form of direct instructions, as recommendations from the National Transportation Safety Board, or through joint efforts. (The regulations restricting commercial sightseeing flights and establishing no-fly zones over the Grand Canyon were made in collaboration with the Interior Department.)
The FAA has several types of rulemaking procedures. The most prolific involves airworthiness directives (ADs) that are issued when the agency attempts to correct what it sees as unsafe conditions in aviation products. About 400 ADs are issued annually.
The agency also makes about 90 changes to its airspace rules each year. Modifications are made to airways, standard instrument approaches, etc. The FAA issues an average of 26 "special conditions" to update the rules for new or unusual aviation-related designs.
The FAA, like other government agencies, follows public rulemaking procedures under the Administrative Procedures Act. The process allows the public to be involved with issuance, amendments to, or repeal of any regulation. Several routes are traveled before final action is taken. An advance notice of proposed rulemaking (ANPRM) tells the public that the FAA is considering an area for rulemaking and asks the public to submit comments. Based on these comments, the agency can drop the idea, make changes, or issue a notice of proposed rulemaking (NPRM). Not all ideas go through this advanced stage.
NPRMs get specific on agency proposals. Again, public comments are sought. Based on the comments it receives, the FAA may accept some recommendations, reject some, put the rule into effect or scrap it. Or, the agency may want to go beyond the scope of the original NPRM and issue a supplemental notice of proposed rulemaking (SNPRM), asking for additional information from the public.
When a final rule is issued, it might mirror the FAA's initial proposal, or there may be changes. Some proposed rules are rejected based on public comments.
Sometimes the FAA issues a final rule with requests for comments. This is usually done when issuing an ANPRM or NPRM would be impracticable, unnecessary or contrary to the public interest -- often when the agency is merely making editorial changes or corrections that do not affect the meaning of a regulation.
The agency occasionally issues a direct final rule with requests for comments when it does not expect to have any adverse comments or if the rule corrects an emergency situation. A deadline for comments is set before the rule goes into effect, which allows the agency to issue an NPRM if there are any negative comments
Within the FAA, rules and notices are prepared in the Rulemaking Office under the Office of the General Counsel. Various offices within the FAA may submit subjects and recommendations. Petitions for rulemaking may come from any source, such as aviation associations, manufacturers or individuals.
The Aviation Rulemaking Advisory Committee (ARAC) was established in 1991 to help the FAA's rulemaking efforts. The committee consists of 71 members representing aviation groups and the general public. It provides a forum for communicating on many issues, and serves as a way to build a consensus between the FAA and those who are affected by the regulations. ARAC has several committees devoted to special interests such as maintenance, airlines, general aviation, certification procedures, noise and training. The committee's executive director comes from the FAA Rulemaking Office.
The only organization that may assign tasks to the ARAC is the FAA. When it gets an assignment, ARAC commissions a group of experts to develop a recommendation and come up with supporting documentation. If the full ARAC supports the working group's recommendations, the committee submits the recommendation to the FAA, which sends it through the normal processing mill.
On average, it takes 200 days to draft a regulation and to coordinate its provisions with upper-level FAA management. About one-third of the proposed rules that the FAA issues are considered "significant" under Office of Management and Budget (OMB) or Department of Transportation (DOT) regulations. With OMB and DOT involved, add another 90 to 120 days before the rule finds itself published in the Federal Register for comment. The FAA spends an average of $30,000 to $50,000 to develop and issue a rule.
Once the proposed rule is published, the public normally has 90 days to submit comments. Each rule proposal is given a docket number. Comments may be submitted to that particular docket by following the directions in the Federal Register. These may include a request for a public hearing, which the FAA may or may not grant.
A copy of each comment is kept in the docket files, and another is sent to the section of the FAA that is affected by the proposed rule. After studying the comments, the FAA takes final action by publishing the final rule and its effective date in the Federal Register. Announcements are also made when rules are withdrawn. The published reports include the agency's responses to various comments.
Some proposed rules receive only a limited number of comments, usually from affected associations or unions. Other proposals get volumes of comments when the rule would affect large groups. On significant rules affecting general aviation, the Aircraft Owners and Pilots Association and the Experimental Aircraft Association ratchet up the interest of their memberships and flood the FAA with comments.
The FAA comes under Part 14 of the Code of Federal Regulations.
Consider yourself educated on rulemaking.
The FAA is subject to these 17 federal laws, executive orders and regulations that must be considered in the rulemaking process:
- Administrative Procedure Act
- Regulator Flexibility Act
- National Environmental Policy Act
- Executive Order 12606 (Family Impact)
- Executive Order 12630 (Property Rights)
- Chicago Convention of 1944 (International Aviation Agreements)
- Unfunded Mandates Act of 1944 (Effect on state, local or tribal governments)
- DOT 2100.2 (Prohibits ex parte communications)
- Congressional Review of Agency Rulemaking
- Federal Advisory Committee Act
- Paperwork Reduction Act
- Executive order 128266 (cost/benefit)
- Executive Order 12612 (federalism assessment)
- International Trade Assessment Impact
- Federal Register Regulations
- Energy Policy and Conservation Act of 1975
- DOT Order 2100.5 (Expands definition of "significant")