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Why Does it Take So Long to Process a Rule?

Source: www.faa.gov/news/safety_briefing, By Jennifer Caron

I’d be lying if I said it doesn’t take a long time to process a rule. Whether it’s issuing a new rule, or an amendment to an existing rule, the process (known as rulemaking) can take several months or even years. But that one reality begs the obvious question — why DOES it take so long?

Rulemaking should be a quick and simple pro-ess, right? Step 1 — here’s an issue. Step 2 — let’s write up a rule to fix it. Step 3 — let people know what the rule is, and step 4 — we’re done. Unfortunately, it’s not that cut and dry.

For example, let’s assume the FAA has identified a safety issue that adversely affects the aviation community. Ok, so let’s go ahead and write up a rule to address that issue. Sounds good, but several factors have to be considered first. What about the existing rules already in place? Do they address the issue? If not, do we amend them, or do we create new ones? What about cost? Will the new or amended rules create an undue economic burden on the aviation community? Finally, who does the rule affect — just the GA community, or the aviation industry overall?

Needless to say, all of these aspects take time to analyze and review, which can lead to a lengthy process. And, contrary to popular belief, the public’s best interest is the driving force behind the rulemaking process. Designed to provide checks and balances so as not to overregulate or over burden the public, the rulemaking process helps ensure that the final rule is effective, and fundamentally helps to keep us safe.

So, What is Rulemaking?

Rulemaking is the policy-making process to issue new rules, and amend or repeal existing ones. The impetus to start the process for a rule comes from several different sources. Namely, Congress can require the FAA to make a rule. Or, the public can petition the FAA to initiate a rulemaking. Furthermore, the FAA itself can initiate the rulemaking process to modify, create or rescind a rule to ensure continued operational safety.

How Does the Rulemaking Process Work?

To illustrate the process, let’s take a look at the Light-Sport rule. It just celebrated its 12-year anniversary as the Certification of Aircraft and Airmen for the Operation of Light-Sport Aircraft, Title 14 of the Code of Federal Regulations (14 CFR) section 21.190.

“The Light-Sport rule started off as an action to close gaps in existing regulations and accommodate new advances in technology,” explains Sue Gardner, the FAA’s National Aviation Events Specialist who helped steer the rule through the agency. “In addition, the FAA received multiple requests for exemptions from the existing rules, as well as petitions from the public to modify or create new rules that would address the new technology.”

As a result, the FAA’s Rulemaking Office of Primary Responsibility established an Aviation Rulemaking Advisory Committee, comprised of industry experts, aviation associations, and public interest/advocacy groups to advise the FAA on how to address the light sport needs. Over a two-year period, issues such as gross weight, fuel capacity, speed and payload (specifically, the ability to carry passengers), and the aeronautical experience and knowledge requirements for a sport pilot versus a private pilot were evaluated and carefully studied. Also reviewed were competing industry needs, cost evaluations, technology solutions, and legalities to name a few.

It’s not surprising to see that this fact-finding, review and evaluation period was lengthy. And, it’s for a good reason. It is critically important that all aspects of an issue are thoroughly reviewed to ensure that any proposed solutions are sound, improve safety, and can withstand the test of time.

A new proposal was created to address these new and diverse aircraft types, and introduced new operational and certification rules for pilots. From there, a recommendation to proceed to rulemaking, called the Rulemaking Action Plan (RAP), was approved by the FAA’s Rulemaking Management Council. This, in turn, triggered the six-month drafting period of the Notice of Proposed Rulemaking (NPRM). The NPRM, as published by the FAA in the Federal Register, marked the beginning of a 90-day comment period for the public, industry, and all interested parties to review the proposed light sport rule, and provide their comments.

The NPRM elicited over 4,000 comments, and per the Administrative Procedures Act, Title 5 of the United States Code, the FAA is obligated to evaluate every comment received, and responses must be included in the final rule.

When all was said and done, the timeframe for this rulemaking, from advisory committee to final rule, was more than four years. Believe it or not, considering all the analysis, the evaluations, the research, and the review and disposition of over 4,000 comments, four years is a relatively short amount of time.

How Long Does it Take to Process a Rule?

For the most part, the length of time to process a rule can be determined by how complicated and wide-scope the rule is, its economic impact, and how many people the rule affects. Notwithstanding the additional two years for committee review prior to the NPRM, a normal timeframe for rulemaking, from the NPRM to the final rule, can be around 38 to 42 months for a significant or complicated rule. And non-significant rules can take up to 30 months.

Is There a Faster Way?

Yes. But keep in mind that only non-significant rules can be processed on a fast-track. Take for example the recently published rule that allows the successful completion of a CFI practical test to satisfy part 61 flight review requirements. By contrast to the light sport rule, this CFI rule allowance took approximately six months to complete. Why? This was a Direct-Final rule. These rules can be published fairly quickly if they are non-significant and do not receive any adverse comments from the public. For instance, the CFI rule had low economic impact, affected only a small segment of the aviation community, was merely a practical update to an existing regulation, and did not receive any adverse comments during the comment period.

And Even Faster?

Yes — for those smaller, non-safety rules only that are narrow in scope and involve only one FAA program office. Just this past March, the FAA’s Rulemaking office began prototyping a new process – the Single Program Office Tool (SPOT) Rule. SPOT, as a performance-based rulemaking process, takes roughly one year, from NPRM to final rule, for smaller, non-safety rulemakings. SPOT can be used, for example, in cases where an FAA service or office may need to change a regulation to relieve a burden on industry. Take a look at the first rule published under the SPOT prototype process, www.federalregister.gov/articles/2016/07/27/2016-17612/repair-stations.

Bottom Line?

Rulemaking is a remarkable facet of our checks and balances system. The goal of the rulemaking process is to create an effective rule that ultimately improves our safety. We, the flying public, are the direct beneficiaries of the time it takes to check all the boxes. Granted, it may not seem like this sometimes tedious process exists for our best interests. But to sum it all up, I’ll quote an associate of mine who says, “If you want a rule really bad, then that’s exactly what you may just get.” Fly safe!

Learn More

For guidance concerning FAA rulemaking and current activity www.faa.gov/regulations_policies/rulemaking/

Here’s a brief tutorial on the regulatory process from reglations.gov www.regulations.gov/?tab=learn, and a chart that gives an overview of the process at go.usa.gov/xkVBt

Jennifer Caron is an assistant editor for FAA Safety Briefing. She is a certified technical writer-editor, and is currently pursuing a Sport Pilot Certificate.