FAA’s “direct-to-final” rule headaches suggest Congressional enhancement of rulemaking process

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While the below article addresses an arcane rulemaking process, a “direct-to-final” rule, it might serve as an excellent case study for the T&I staff to revise the procedural standards with which the FAA must comply. The substance involves revising the existing rule to allow more hours of training in a device like the above.

The 114th session of the Congress of the United States is a bell weather year for aviation. The FAA’s authority is to be renewed and Chairman Shuster has called for “transformational changes”. In addition to the big ideas, like the governing and funding of NextGen, the House and Senate might want to consider some of simple basic revisions. For example, the Transportation and Infrastructure Committee is holding a hearing on FAA Reauthorization: Reforming and Streamlining the FAA’s Regulatory Certification Processes”, which will examine the intricacies of that critical, yet detailed function.

The below article highlights a FAA procedural requirement (14 CFR §11.13) which compelled it to terminate a proposed rule if a single objection is filled. In this case, an increase in the use of training device use for licensing. The proposed final rule was based on substantial real world experience (literally hundreds of exemptions which “tested” the increased reliance on training devices) and only one negative comment from the public. The industry and the FAA placed hundreds of hours on promulgating this new standard which would increase the training value and improve safety.

It is highly unlikely that Congress would consider a revision to the Administrative Procedure Act . The dictates of that time-honored statute are etched in stone somewhere within the Capitol. Perhaps another procedural route might be practical.

One of the most useful and efficient means of developing aviation rules is the Aviation Rulemaking Advisory Committee , which must comply with the Federal Advisory Committee Act (FACA) 5 USC, Appendix 2. That means the processes of this “auxiliary” organization is “washed” by the protections of the APA. Each ARAC task, meeting schedule, deliberation and recommendation is subject to full public scrutiny. When a specific ARAC is finalized, its work product is THEN subject to the full NPRM review.

If Congress seeks greater expedition in the FAA’s issuance of safety rules, it might amend FACA to permit the ARAC’s final proposal to be published as a final rule. The ordinary notice and comment process generates great delays (60/90/120 days for comments) and it is questionable how much of the public’s comments (review/analysis of which consumes even more time) impact the release of the final rule. Adding some additional requirements during the ARAC considering of the proposal might be advisable, like greater distribution of notices of the ARAC efforts and/or facilitating the reception of comments during its process. With enough protections, it might be appropriate to quickly convert the proposed new rule to a final?

Such an alteration of the FAA’s rulemaking process might result in transformational improvement of the introduction of safety rules.

ARTICLE: SAFE: FAA Rescinds Requested Proposal To Allow Greater Simulator Use

Only One Adverse Comment Derailed Scheduled Rule-Making

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