As we wait for the FAA’s notice of proposed rulemaking (NPRM) on licensing, it might be useful to revisit a tool the FAA used once before. When the FAA released its first notice of proposed rulemaking for licensing and safety requirements for the launch of expendable launch vehicles, industry was not happy. To address industry’s concerns the FAA issued a supplemental notice of proposed rulemaking. Concerns persisted.
Ex parte rules against non-public communications regarding rulemaking make it difficult to talk directly to the FAA about issues. The law frowns on secret communications, so all the agency may do is answer questions if you contact it individually. If a member of the public, which includes the regulated industry, has a concern, the proper forum for expressing that concern is through written comments to the docket. The docket is open to the public for full transparency.
When the FAA received comments to its supplemental notice of proposed rulemaking, it realized that there were many misunderstandings that could best be cleared up by discussion. It also realized that industry wanted a chance to see the changes the FAA had made in response to the first two rounds of comments. Lastly, if there was going to be a public meeting it made more sense to have it be about the draft the FAA had ready rather than the first supplemental NPRM. Discussing an old document, when the FAA had already drafted changes, would not be entirely useful. Accordingly, the FAA placed its draft regulatory language in the docket, released a notice in the Federal Register, and held a public meeting to help clear up a host of issues.
The docket and the Federal Register notice provided sufficient legal notice and opportunity for participation, thus dispelling any ex parte concerns, that the FAA was able to engage in frank discussions about its proposal.