Despite internal FAA reforms in 1998 designed to speed rulemaking, the median times that the agency took to complete both the proposed rule phase and the final rule phase increased in the three-year period after the reforms were instituted, even though it published fewer rules then it did during the three years before the reforms.
In a hearing before the House aviation subcommittee, the General Accounting Office (GAO) said the FAA generally takes about 2.5 years to complete a rulemaking, but six rules took 10 years or longer finish. The GAO said it looked at the history of 76 “significant” rules that constituted the majority of the FAA’s workload of significant rules from FY 1995 through 2000.

The GAO said that in that six-year period, the time the FAA took to formally “initiate” a rule in response to a congressional mandate or an NTSB recommendation “varied widely.” The FAA initiated most rules within two years, but some were begun many years later.

Then, after formally initiating a rule, the FAA took a median time of approximately 2.5 years to complete the rulemaking, although 20 percent of the rules took 10 years or longer to complete.

Over the entire six-year period, the GAO told Congress, the FAA’s median time for the final rule phase– about 15 months–was comparable with that of four other federal regulatory agencies. Over a shorter more recent period, the FAA took longer to complete this phase. “From October 1996, when Congress established a 16-month statutory requirement for completing this final rule phase, through March 2001, the FAA completed this phase within 16 months for fewer than half of its rulemaking projects,” the GAO found.

It said the FAA’s 1998 reforms have not improved the efficiency of the rulemaking process primarily because they have not been fully
or effectively implemented. “This highlights the need for some real reforms at the FAA when it comes to the rulemaking process,” said a National Air Transportation Association spokesman.

Rulemaking Machinery
The GAO, which studied the FAA rulemaking record at the request of the aviation subcommittee, told lawmakers that the FAA formally initiated rulemaking actions within six months for about 60 percent of the congressional mandates and about 33 percent of the NTSB safety recommendations calling for such actions. However, the FAA took more than five years for about one-fourth of the mandates and one-third of the recommendations.

The GAO, the investigative arm of Congress, cited two examples to illustrate how long it takes the FAA to put the rulemaking machinery into motion. The FAA responded within one month to a 1999 NTSB recommendation that upgraded flight data recorders be required on Boeing 737s, but the agency took more than seven years to respond to an NTSB recommendation calling for the use of child safety seats.

From FY 1995 through 2000, the FAA completed 29 significant rules, taking from less than one year to almost 15 years for the entire rulemaking process, the GAO revealed. The median time for completing a rule was 2.5 years, but six rules took 10 years or more to complete.

Significantly, the GAO determined that the median time the FAA took to complete the entire process increased from about 30 months during the three years before the reforms (FY 1995 to 1997) to 38 months in the three years since the reforms (FY 1998 to 2000). Furthermore, the median time the FAA took for both the proposed rule phase and the final rule phase increased since the FAA began implementing the reforms.

According to the GAO, the FAA has published fewer rules since 1998. In the three years before the reforms, the FAA completed 18 significant rules, compared with 11 in the same time since the reforms.

Among its reforms, the FAA established its own timeframes for the rulemaking process–450 days for the proposed rule phase and 310 days for the final rule phase. “While these timeframes were not an applicable standard for rulemaking efforts that predated the reforms,” the GAO told lawmakers, “we found that the FAA met these timeframes more often before the reforms than afterward.”

The GAO said that after talking to FAA rulemakers and observing specific rulemaking projects, it found that the 1998 reforms have not been fully implemented and the efficiency of the process has not improved.

“We have not yet seen whether the FAA’s rulemaking reforms can effectively reduce delays in the process because many of the initiatives have not been fully implemented,” said Gerald Dillingham, director of physical infrastructure issues for the GAO. “The FAA’s attention to elements critical to achieving desired results…would facilitate more effective implementation of the reforms.”

The GAO said three problems associated with management’s involvement in rulemaking continued to slow the process. These included designating an excessive number of top-priority rules; unresolved policy issues; and multiple layers of review within the agency.

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