The Federal Rulemaking Process: Setting an Example for the World
Editor’s Note: Complaints about the American regulatory system make it easy to forget that our process sets an example for the world.; this is a trust that all participants in the regulatory process should strive to uphold.
The Rulemaking Process
The reason for this article is to clearly educate the Nigerian Civil Aviation Authority (NCAA) or the yet to be implemented merger called Federal Civil Aviation Authority (FCAA) on how rulemaking is processed in a rational country like the USA.
Over the past 50 years, numerous reports have documented the cause and delays in the FAA rulemaking process. There is no question but that rulemaking is extremely time-consuming and complex, requiring careful consideration of the impact of proposed rules on the public, the aviation industry, the economy, and the environment. The U. S. General accounting officer (now government accountability officer) has reported that after formally initiating a rule, FAA took an average of 30 months to complete the rulemaking and 20 per cent of the rules took over 10 years or longer to complete. In recent years, difficult rulemaking issues such as changes to the Helicopter Emergency Management System, FAR rules pertaining to hospital Medical Evacuation helicopter flights have taken several years in development in spite of numerous crashes, dozens of fatalities, and NTSB strong public recommendations in this area. Often it takes public outcry and political pressure to move the process forward such as seen in the wake of the Colgan Air Commuter flight crash in Buffalo, New York, in February of 2009.
In general, all government administrative rulemaking is governed under the Administrative Procedures Act (APA), which requires advance notice and opportunity for the public and industry to comment before a rule is issued or amended. Under the Federal Advisory Committee Act, the FAA obtains advice and recommendations from industry concerning the full range of its rulemaking activity including all aviation-related issues regarding such issues as air carrier operations, airman and aircraft certification, airports and noise abatement. The primary committee chartered by the FAA for this purpose is called the Aviation Rulemaking Advisory Committee (ARAC) whose primary purpose is to provide the public an earlier opportunity to participate in the FAA rulemaking process before the formal APA notification period begins
After they sign off, the package is finally forwarded to the Office of Management and Budget (OMB) for its review.
If anyone at any stage in the process objects, the package is reworked until the problem is resolved. At that point, the FAA recoordinates the package with the appropriate people. This process continues until everyone concurs or at least until all comments are considered.