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02/23/01 - FAA’S RULEMAKING PROCESS: WHAT IS IT, AND WHY IS THE SPORT PILOT PROPOSAL TAKING SO LONG?
By Earl Lawrence
Vice President-Government and Industry Relations
Over the past few months EAA Sport Aviation has published a significant amount of information about the upcoming Notice of Proposed Rulemaking (NPRM) on a new set of sport pilot regulations. I say “set” because the sport pilot proposal covers not just pilot rules-it also includes operational rules and the certification of aircraft and mechanics.
How did this proposal come about, and when will the new rule take effect? As with most government processes, there is no easy straightforward answer because changing rules, and making new ones, is a process in which everyone who will be touched by the rules must review them properly-including the public.
Sport pilot began its travels through the rulemaking process several years ago when the United States Ultralight Association (USUA) asked the FAA to expand Part 103 of the Federal Aviation Regulations to include two-seat ultralight vehicles. By following the steps in FAR Part 11, anyone can petition the FAA to change a rule. To get the public’s comments on the petition, the FAA publishes it in the Federal Register.
After considering the comments received, if the administrator determines there are sufficient reasons to proceed, the FAA will begin the rulemaking process, and the USUA petition followed this route.
When developing new rules, the FAA includes industry input from the start by creating an aviation rulemaking advisory committee (ARAC) whose members (including EAA) have expertise in the area being considered, light and ultralight aircraft in this case. After years of hard work, the ARAC decided to propose a new pilot certificate instead of changing Part 103. Calling the new certificate “sport pilot,” the ARAC drafted the initial rule proposal and submitted it to the FAA.
An internal FAA review of the ARAC proposal is the next step in the rulemaking process. Because the agency has so many going at one time, it assigns each a priority based on importance. FAA Administrator Jane Garvey assigned the highest priority to the sport pilot proposal. (This is significant because most high-priority proposals deal with commercial-not recreational-aviation.)
As the FAA reviewed the proposal, it realized that for the sport pilot certificate to succeed it would need new companion rules for aircraft and flight operations, and it established a rulemaking team from the applicable FAA departments to write a complete proposed rule.
When developing a new rule, each FAA department involved must sign off on the proposal. For example, the air traffic department studies the proposed rule to see how it will affect its operations. The FAA departments responsible for aircraft certification, maintenance, airports, etc. do the same.
Once the proposed rule is pretty well firmed up, the FAA must then study the rule’s economic impact and legality. These reviews are why it can take months to years to complete a rule. The more complex the proposed rule, and the more departments involved, the longer the rulemaking process takes. And once the FAA completes its work on the rule, other agencies-such as the Office for Management and Budget (OMB) and the Department of Transportation (DOT), the FAA’s parent-must review the FAA’s work.
Only after everyone involved has reviewed and accepted the draft rule is it published in the Federal Register as an NPRM. Published every working day by the executive branch of the government, the Federal Register is the official publication for notifying the public of just about every government action, from meetings to proposed rules that require public comment. EAA combs this document daily looking for proposals and other notices relating to recreational aviation that it doesn’t already know about.
Once the FAA publishes the NPRM the public has 30, 60, or 90 days to comment on it (the period usually depends on the complexity of the proposal). (Public comments must be in writing and in triplicate, but the FAA is experimenting with accepting e-mail comments.) When the comment period closes, the FAA reads each comment and develops a response to them.
Depending on the comments, at this point in the rulemaking process the FAA can do one of four things: It can publish the NPRM as the final rule. It can make minor changes to the NPRM and publish that as the final rule. It can make significant changes to the NPRM and publish it as another NPRM. Or it can drop the whole proposal. This process usually takes at least six months, and it depends on the number of comments the FAA receives (more comments equals more time).
If the proposal makes it through all these reviews and public comments, the FAA will publish a final rule in the Federal Register. In addition to the full-text version of the new rule and the history of its genesis in the preamble, this announcement gives the date the new rule takes effect. Sometimes this date is months after the rule is published.
Why? To give the public and affected FAA employees time to prepare for the rule’s requirements. For example, FAA Flight Standard District Offices need time to educate their inspectors about the rule and to be ready for the public’s requests for sport pilot instructor certificates when the rule takes effect.
As this simplified description shows, rulemaking is a major undertaking (but it probably doesn’t make the waiting any easier). The sport pilot proposal is well on its way to becoming reality, and with the FAA’s top priority on it and the accompanying public support, we hope to see the sport pilot final rule published by the end of this year or early in the next one.
Don’t let the wait for this new rule discourage you. If all goes well, we’ll soon see a revolution in recreational aviation that will make all the hard work and time that went into it well worth it.