Project Management

Full Answer Section

• Reasoned Decision-Making: The FAA must provide a reasoned explanation for its final rule, including how it addressed significant comments, even those it disagrees with. Ignoring or dismissing a well-supported comment from an expert could be seen as arbitrary and capricious, which could lead a court to overturn the rule.

Formal Rule-Making Process:

Here are the stages of formal rule-making for administrative agencies, with examples:

1. Initiation:

   • Need for a Rule: The agency identifies a problem or need that a new rule could address. This could be due to a new law, a court decision, or a change in circumstances.
     • Example: The FAA might determine that existing regulations on drone operations are insufficient to ensure safety as drone technology advances.
   • Authorization: Congress must have granted the agency the authority to issue rules on the subject matter.
     • Example: Congress has given the FAA the power to regulate air safety.

2. Notice of Proposed Rule-Making (NPRM):

   • Publication: The agency publishes a detailed proposal in the Federal Register, including the proposed rule's text, the agency's reasoning, and a request for public comments.
     • Example: The FAA publishes a NPRM proposing new rules for drone registration and operation, including requirements for pilot certification and airspace restrictions.
   • Comment Period: The public has a specified time to submit written comments on the proposed rule.
     • Example: Aviation enthusiasts, drone manufacturers, and commercial operators submit comments to the FAA, expressing support, concerns, and suggestions for changes to the proposed drone rules.

3. Evaluation of Comments:

   • Review: The agency reviews all comments received, including those from experts and the general public.
     • Example: The FAA staff analyzes the comments on the drone rule, looking for common themes, technical feasibility, and potential impacts on different stakeholders.
   • Revisions: The agency may revise the proposed rule based on the comments received.
     • Example: The FAA decides to modify the proposed drone rule to address concerns about privacy and adds provisions to protect sensitive areas from drone surveillance.

4. Publication of Final Rule:

   • Federal Register: The agency publishes the final rule in the Federal Register, along with a "concise general statement" explaining the rule's basis and purpose, and responding to significant comments.
     • Example: The FAA publishes the final drone rule, which includes the modifications made in response to public comments, and explains the rationale behind the rule's provisions.
   • Effective Date: The rule typically becomes effective 30 days after publication.

5. Judicial Review:

   • Challenges: Interested parties may challenge the final rule in court, arguing that it is arbitrary, capricious, or not in accordance with the law.
     • Example: A drone operator sues the FAA, claiming that the new drone rule is overly restrictive and violates their constitutional rights.
   • Court Decision: The court reviews the agency's rule-making process and the substance of the rule. If the court finds the rule to be valid, it remains in effect. If the court finds the rule to be invalid, it may be overturned or remanded back to the agency for further action.

Important Notes:

• Informal Rule-Making: Many agency rules are made through "informal rule-making," which generally follows the same steps but with less stringent requirements for public hearings and formal findings.
• Exemptions: Some types of rules may be exempt from the notice and comment process, such as those that involve minor or technical changes.

The rule-making process is designed to be transparent and participatory, allowing all interested parties to have a voice in the creation of regulations that affect them. While agencies have the authority to make policy decisions, they must do so in a reasoned and non-arbitrary manner, based on the evidence and comments they receive.

Sample Answer

Must the FAA not pass the proposed rule based on this comment?

No. The FAA is not required to abandon the proposed rule simply because even a highly respected expert disagrees with it. Here's why:

• Notice and Comment: The rule-making process is designed to gather input from a wide range of stakeholders, including experts, industry, and the public. Disagreement, even from a prominent voice, is expected and is part of the process.
• Agency Discretion: Ultimately, the agency has the authority to make policy decisions, as long as those decisions are based on a reasoned analysis of the available information.
• Substantial Evidence: The FAA must base its final rule on "substantial evidence" in the record, which includes the comments received. However, "substantial evidence" doesn't mean unanimous agreement. It means that the agency has considered all relevant information and has a rational basis for its decision.

Must the FAA consider the comment when deliberating passing the new rule?

Yes. The FAA is absolutely required to consider the expert's comment. Here's why:

• Administrative Procedure Act (APA): The APA, which governs federal rule-making, mandates that agencies consider "all relevant matter" presented during the comment period. This