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Regulations: Making The Rules

By Karen Sullivan

How many times have you questioned the reasoning behind one of the Federal Aviation Regulations? Or wondered exactly how to adhere to a regulation? It only makes sense that you should. Wouldn’t it be nice to know that the regulation you were reading was thought of and written by you or one of your peer mechanics? For those of us whose livelihoods depend on not breaking one of these regulations, it should be comforting to know how we can be a part of making them.

The process
According to the Administration Procedure Act (APA), every rule that is issued by the Federal Aviation Administration has to go through the Federal Rulemaking Process. This is the process of formulating, amending or repealing regulations. Among other things, the APA also requires that the public be informed of and allowed to participate in this process. The end result is the issuance of a final rule and eventually its codification into the Code of Federal Regulations.

New rules, amendments to existing rules and even exemptions from existing rules can come from a couple of different sources.  14 CFR Part 11 includes instructions for individuals who wish to accomplish one of these. In order to request the addition of a new rule, an individual must submit a petition for rulemaking to the FAA. This can either be done by paper submission through the mail or electronically via the internet. The address for paper submission is given in 14 CFR Part 11.63. A portal to the Federal Docket Management System, www.regulations.gov, offers the ability for submitting a petition electronically. However, finding where to actually enter your information for the petition is nearly impossible. Directions for finding the correct window can be found in an MS Word document at the FAA’s web site on its Rulemaking page.

What information is needed?
So what information needs to be in a petition for rulemaking? Of course, obvious information such as your name and contact information. Most importantly though, is a detailed explanation of the proposal and it’s purpose. Not only must you include how it would benefit you, but how it would benefit the public as well. If you have already gone so far as to write out actual text that could be used in the rule, go ahead and include that also. Supporting arguments, technical information and circumstances or events should be included. In return, the FAA may ask you for additional items that could be an effect of the proposal, such as; costs and benefits, any anticipated burdens and their accompanying records, or any possible environmental impacts.

After submission, the FAA will decide if the petition is a justified reason for action. If there is already an action occurring that addresses the subject, the petition will be considered a comment on that action. However, if there is no current action, and the FAA still feels the petition is warranted, a notice could be issued on the subject. In the case that the FAA does not have an interest in the proposal, it will simply be dismissed. Another choice for the FAA to make is to send the petition to the Aviation Rulemaking Advisory Committee (ARAC).

ARAC exists under the will of the FAA and is a working group comprised of aviation industry organizational members. The purpose of this committee is to provide suggestions and advice to the FAA on its rulemaking. The committee only convenes when tasked to do so by the FAA. Not only does ARAC offer comments on petitions received by the FAA from individuals but ARAC can suggest its own ideas for formulating, amending and repealing regulations as well. But again, ARAC only offers these suggestions when asked to do so by the FAA. When the FAA chooses to involve the ARAC, it will be announced in the Federal Register and it will also invite public participation in ARAC’s working groups. ARAC meetings are open to the public, which offers another route for A&P’s to stay informed. Be aware though, that if you wish to directly address the committee during one of these meetings, prior notice is necessary.

An important point to remember, ARAC is not the Aviation Rulemaking Committee (ARC) that also exists under the FAA. The ARC is not required to publish notices of rulemaking in the Federal Register and ARC meetings are only open to the members thereof. However, under the Freedom of Information Act, some documents generated from ARC meetings may be requested by individuals other than ARC members.

FAA notices
Once the FAA decides to take action on a suggestion received from individuals or from the ARAC or ARC, it has a number of different notices that it can issue to the public through the Federal Register.

From slowest to fastest in pace, let’s start with the Advanced Notice of Proposed Rulemaking (ANPRM). This notice informs the aviation community that the FAA is considering proposing a rule in a certain area but has no definite rule drawn up yet. The FAA is requesting comments and ideas from the public in order to develop the idea into a rule.

Notice of Proposed Rulemaking (NPRM): Now the FAA is announcing a specific proposed change and wants to hear comments and reactions from the aviation community. An NPRM usually has a 30-, 60-, or 90-day open comment period.

Supplemental Notice of Proposed Rulemaking (SNPRM): With this, the FAA is looking to the public for additional information or comments on an existing proposal or for a new direction to take on an existing proposal. This action can come from within the FAA or can stem from comments that were received on the original notice that brought new ideas to light.

Final Rule with Request for Comments: This type of rule is typically not preceded by an ANPRM or NPRM. It can also be called an immediately adopted final rule. The comment period for this type of rule is usually set to end after the effective date of the rule. The FAA uses this type when it does not expect to receive any adverse comments, only useful comments in response.

Direct Final Rule: Here, the comment period is set to end before the effective date of the rule, in case any helpful or adverse comments are received in response. Typically though, with a direct final rule, no useful comments are expected and therefore no NPRM precedes this type either.

Final rule 
Finally, the end result of the proposals for rulemaking. A final rule is the actual regulation that will end up being codified into the Code of Federal Regulations. Any comments received by the FAA during the notice period of this rule will be addressed when the Final Rule is published in the Federal Register.

The Federal Register is published by the National Archives and Records Administration, Office of the Federal Register and is updated daily. It is accessible many different ways through the Internet but some sites are read only, denying the option of submitting comments. Two of those sites are www.gpoaccess.gov and www.Justia.com’s Regulation Tracker. The Federal Docket Management System can be accessed through www.regulations.gov and this site offers the ability to submit comments to proposed rules. (This is the same site where petitions for proposed rules can be submitted.) When searching for a specific proposed rule to comment on, look for the small yellow voice bubble next to the title of the proposed rule. Clicking on it allows you to enter your comment.

For A&P mechanics that have to use and follow these rules daily, it cannot be stressed enough the importance of being actively involved in this process. A&Ps bring real-world knowledge and experience to the table. Something that is invaluable to the aviation industry. Along with being aware of how to participate in rulemaking, knowing how to follow the final rules, the FARs, is just as important.

Reading the Federal Aviation Regulations is not exactly like reading a novel. It doesn’t flow, not even a little bit. Good news though, there are publications that include the background and reasoning behind the rule to help clarify things. The FAA’s Regulatory and Guidance Library has a CFR Final Rules Database that includes background information on most FAR’s, offering some good insight into the creation of a regulation. There are paper publications that among other things, includes preambles to regulations and FAA opinions to the public’s comments about the rules like Jeppesen’s most recent FAR’s Explained Part 1,21,43,65,145 and 147 by Lori Edwards and Kent Jackson.

For your best chance in understanding what you read in the Federal Aviation Regulations, take your time and exhaust every possible additional source of information. For more information on rulemaking, take a look at www.faa.gov. There you can find its rulemaking page with more helpful information. 

Karen Sullivan is assistant professor, Department of Aviation Technologies at Southern Illinois University Carbondale.

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