AVIATION RULEMAKING ADVISORY COMMITTEE (ARAC)
A. Definition. The Aviation Rulemaking Advisory Committee (ARAC) is a formal standing committee, comprised of representatives from aviation associations and industry. Established by the Federal Aviation Administration (FAA) Administrator on February 15, 1991, ARAC provides industry input in the form of information, advi
ce and recommendations to be considered in the full range of FAA rulemaking activities. The ARAC charter is reviewed approximately 15 months after the charter's most recent extension to determine the need to continue ARAC. If determination is made to extend ARAC, the ARAC Executive Director will prepare all documentation required to effect that extension. Members of ARAC serve without compensation; however, transportation and per diem expenses may be paid when necessary and appropriate. The desired objectives of ARAC are to:
(1) Gain public input early in the rulemaking process.
(2) Improve rules by involving interested members of the public in their development.
(3) Include the concerns and opinions of the public in the document thereby reducing the probability of non supportive public comments in response to the rulemaking document publication and issuance.
(4) Move rules through the rulemaking process more quickly. (The Office of the Secretary of Transportation (OST) and the Office of Management and Budget (OMB) favor rulemaking developed with public input).
(5) Avoid placing any unnecessary burden on the public because of a lack of information
B. Purpose. ARAC provides rulemaking advice and recommendations to the Administrator, through the Associate Administrator for Regulation and Certification, with respect to aviation-related issues. The exchange of ideas that occurs through the ARAC process affords the FAA additional opportunities to obtain firsthand information and insight from those parties who are most affected by existing and proposed regulations. ARAC expedites the development, revision or elimination of rules without circumventing the public rulemaking process and procedure.
C. Tasking. The FAA tasks ARAC. ARAC may accept or decline the task offered. Once the task is accepted, ARAC may not modify the task without approval by the FAA. ARAC may recommend new tasks to the FAA; however, only tasks assigned or approved by the FAA and published in the Federal Register may be undertaken. In the conduct of its activities, ARAC complies fully with the provisions of the Federal Advisory Committee Act (FACA) and administrative directives of the FAA pertaining to advisory committees.
(1) FAA Office. Any FAA office with rulemaking responsibility may request that ARAC undertake a task if that office determines ARAC is the best forum to use.
(2) Member Organization or Nonmember. Any member organization or nonmember (organization or individual) may request that the FAA assign a task to ARAC. To request action, the requester sends a letter to the FAA Director of Rulemaking stating the justification for the action. The FAA will respond within 30 days.
D. Harmonization. Harmonization of regulations has been given a high priority in the FAA's regulatory program. The goal of the harmonization effort is to ensure where possible, that regulations impacting both domestic and foreign parties do not require parties to operate or manufacture to different standards for each country involved. Additionally, safety standards adopted must be mutually acceptable to the FAA and the foreign aviation authorities. During the June 1992 FAA/JAA (Joint Aviation Authorities) Annual Meeting in Toronto, Canada, ARAC was recognized as the U.S. tool to achieve rulemaking harmonization. The working group established by ARAC and the corresponding JAA study group join together to form a FAR/JAR (Federal Aviation Regulations/Joint Aviation Requirements) Harmonization Working Group. As a result, JAA members participate in ARAC at all levels.
E. Amending Operating Procedures for ARAC. The ARAC Executive Committee is authorized to amend the ARAC Operating Procedures on its own initiative. ARAC regularly reviews those procedures for needed changes.
A. Composition. ARAC is composed of approximately 65 members representing a broad spectrum of aviation interests and possessing sufficient diversity to provide a balanced range of views and expertise. The membership of ARAC consists of representatives from those organizations identified in Appendix A. An executive director from the FAA serves as the Designated Federal Official (DFO), as required by FACA, but is not a member of ARAC.
B. Management. ARAC is managed by a Chair, a Vice
/ Chair and Assistant Chairs. When ARAC meets on general subject matter, the meeting is chaired by the ARAC Chair. When ARAC meets on specific subject matter, the meeting is chaired by the designated Assistant Chair possessing knowledge/experience in that subject matter. Through this organizational structure, ARAC focuses simultaneously on 12 areas representing a broad cross-section of aviation issues.
C. Executive Committee. The overall administration of ARAC is by an Executive Committee, chaired by the ARAC Chair. Additional Executive Committee members include the ARAC Vice
/ Chair, the Executive Director, the ARAC Assistant Chairs (each responsible for a broad technical issue), a representative from a public interest group, the JAA Regulations Director, the Director of the Office of Aviation Policy and Plans, and a representative from the Office of the Chief Counsel.
D. Working Group.
(1) ARAC Working Group. To assist in its work, ARAC, from time to time, may form working groups to act as staff to ARAC. These working groups
, consist of volunteer ARAC members, volunteers from the interested general public, and a representative from the FAA Office of Primary Interest (OPI) most closely associated with the subject matter being addressed by the working group. Each member contributes his or her particular knowledge or experience to task completion and subsequent formulation of alternative recommendations to ARAC. All working group work is reviewed by ARAC. ARAC evaluates working group contributions and approves/disapproves their incorporation into ARAC's recommendations to FAA. Working groups function under the administrative control of an appointed Working Group Chair who reports to ARAC.
(2) FAR/JAR Harmonization Working Group. A FAR/JAR harmonization working group is established to address harmonization tasks assigned to ARAC. The harmonization working group acts as staff to both ARAC and the JAA. The group consists of the members of the ARAC working group plus the members of the JAA study group. (The JAA study group advises the JAA in a manner similar to ARAC.)
E. FAA Support. To enable ARAC to function, certain organizational support is required on a continuing basis. The FAA provides this organizational support to the ARAC through the Office of Rulemaking and the O
ffice of Primary InterestPI. The OPI is that office, within FAA, that has the most interest and expertise in the project area or has requested that ARAC address the tasked subject matter.
A. ARAC Chair. (Non FAA) The Chair is appointed by the FAA for a one-year term and is responsible for the general oversight of the activities of ARAC to include:
(1) Presiding at meetings of ARAC and the Executive Committee.
(2) Maintaining liaison with ARAC members and their organizations to ensure recognition of the ARAC role in aviation rulemaking and to enhance its effectiveness.
(3) Assessing FAA policies pertaining to membership and the ARAC work program and proposing changes for consideration by the FAA. These are accomplished in cooperation with the
ARAC executive dExecutive Director.
(4) Certifying the accuracy of ARAC and Executive Committee meeting minutes.
B. ARAC Vice Chair. (Non FAA) The Vice Chair is appointed by the FAA for a one-year term. At the end of his or her one-year term, the Vice Chair assumes the position of the Chair. The Vice Chair:
(1) Assists in maintaining liaison with the ARAC members and their organizations to ensure recognition of the ARAC role in aviation rulemaking and to enhance its effectiveness.
(2) In cooperation with the chair and the
ARAC executive dExecutive Director, assesses FAA policies pertaining to membership and the ARAC work program and, as necessary, proposes changes for consideration by the FAA.
(3) Assumes all responsibilities of the Chair, in the absence of the Chair.
ARAC Executive Director. (FAA) The Executive Director is the Director of the Office of Rulemaking and is the sole FAA spokesperson to ARAC. The Executive Director . :
(1) Supervises the affairs of ARAC in conformity with established procedures.
(2) Acts as the Designated Federal Official (DFO), as required by the Federal Advisory Committee Act (FACA).
(3) Serves as the focal point for all communications between ARAC and it
's Executive Committee and the FAA.
(4) Establishes FAA guidance and policies pertaining to ARAC, including membership and procedural guidelines.
(5) Ensures availability of formal legal and economist support when requested by the ARAC Assistant Chair.
(6) Manages the finances of ARAC in accordance with the approved Department of Transportation ceiling, including supervision over the preparation of the annual budget and periodic reports of its affairs.
D. ARAC Assistant Chair. (Non FAA) An ARAC Assistant Chair is appointed by the
ARAC ChairFAA and serves as the focal point for all ARAC activity in a particular interest area. His or her role is to ensure that tasks assigned within his or her specific area of expertise are adequately defined and understood by all concerned; that activity progresses in an orderly fashion; and that ARAC recommendations from his or her expertise area are submitted to the FAA on schedule and in a form acceptable to the FAA. An ARAC assistant chair:
(1) Presides at ARAC meetings held to address a specific issue.
(2) Advises the
FAA Office of Rulemaking of any ARAC meetings to be included in the ARAC calendar of meetings.
(3) Act as the focal point for all communications with ARAC when that issue is addressed.
(4) Certifies the accuracy of the minutes of the ARAC meetings held to address a specific issue.
(5) Establishes appropriate working groups.
Appoints chairs and membeIn coordination with the Assistant Executive Director, appoints chairs of working groups.
(7) In coordination with the Assistant Executive Director and the working group chair, appoints working group members.
(8) Ensures that working groups are balanced in membership.
89) Monitors the progress of working groups.
910) Requests legal, economist, and drafting assistance from the FAA, through the Assistant Executive DirectorOffice of Rulemaking.
01) Conducts in-depth reviews of working group reports.
1)2) Reviews proposed recommendations to determine whether harmonization has been maximized.
23) Transmits recommendations to the FAA.
ARAC Assistant Executive Director. (FAA) An ARAC Assistant Executive Director is assigned by the OPI. An ARAC Assistant Executive Director
(1) Serves as the FAA's spokesperson for all ARAC activity in his or her particular interest area.
(2) Serves as the DFO at meetings that address his
/ or her particular interest area, and ensures that all applicable requirements of FACA are adhered to (e.g., open meetings, DFO present, minutes kept, etc.).
(3) Ensures that each task is properly coordinated before it is presented to ARAC.
(4) Is the focal point for all communications between ARAC and the FAA when an issue in his or her particular technical subject area is addressed.
Is the FAA focal point for all formal requests for drafting, economist, or legal support in his or her particular interest area.
(6) For tracking purposes and to ensure that commitments to ARAC are met, advises the Office of Rulemaking when he or she receives a request for drafting, economist, or legal supportWorks with the ARAC Assistant Chair to select working group chairs.
(6) Works with the ARAC Assistant Chair and the working group chair to select working group members.
(7) In coordination with the OPI, appoints the FAA Representative to working groups in his or her interest area.
F. ARAC Members. (Non FAA) The ARAC members include all of the organizations contained in Appendix A. ARAC membersí responsibilities include:
(1) Ensuring availability to attend periodic ARAC meetings.
(2) Contributing their respective aviation knowledge and expertise to the tasks accepted by ARAC.
orying the FAA on matters of importance to the aviation industry and aviation association constituency.
G. Working Group Chair. (Non FAA) The Working Group Chair is appointed by the ARAC Assistant Chair and is responsible for ensuring a balance of diversity within the working group, and for ensuring consideration of all viewpoints in accomplishing the task. The Working Group Chair:
(1) Works with the ARAC Assistant Chair and Assistant Executive Director to select working group members.
(2) Works with the ARAC Assistant Chair and Assistant Executive Director to secure and maintain a balanced working group membership that will materially contribute to the final product and team success. The Working Group Chair may expand or contract the working group as necessary to attain final product and team success. This includes removal of inactive, nonparticipative or disruptive members.
(3) Establishes task groups, as appropriate, to accomplish a subtask.
(4) Is a voting member of the working group unless another representative of the chair's organization represents that organization as its voting member.
25) Ensures that all working group members have a clear understanding of the FAA task assignment and schedule completion date.
36) Enforces the ground rules adopted by the working group.
47) Considers all background material relevant to the task, including unresolved petitions for rulemaking and exemption. Petitions submitted to the FAA after the working group has begun its deliberations need not be addressed in the final recommendation.
58) Ensures that notes are taken, motions voted and recorded, and all decisions/consensus documented at each meeting.
69) Establishes and maintains an optimum group size to provide expertise and industry interest necessary to the achievement of informed consensus, promotes collaboration, considers all elements contributed by participants, ensures each suggestion receives full consideration by the working group, combines all constructive suggestions/ideas to reach a positive, useful outcome or decision, and resolves conflict.
710) Calls meetings of the working group and endeavors to balance meeting locations in order to minimize participant costs and to schedule tentative meeting dates in advance to reduce work conflicts and maximize participation.
(11) Ensures that working group meetings requiring attendance by the economist and/or attorney are held within the 48 contiguous United States.
812) Advises the FAA Office of Rulemaking of any meetings to be included in the ARAC calendar of meetings.
913) Compiles agenda items and distributes them to each working group member well in advance of working group meetings.
04) Develops, with working group consensus, a work plan and concept for presentation to ARAC.
(15) Ensures via the FAA Representative that the economist and the attorney on the FAA internal team have concurred with the work plan.
(16) Briefs ARAC on the work plan and obtains ARAC approval.
(17) Develops, with working group consensus, a concept paper/briefing for presentation to ARAC.
(18) Ensures via the FAA Representative that the economist and the attorney on the FAA internal team have concurred with the concept paper/briefing.
(19) Briefs ARAC on the concept and obtains ARAC approval.
(20) Once the work plan and concept have been approved by ARAC, leads the working group toward technical agreement on regulatory change recommendations. The product should be a draft of proposed changes to regulatory text.
(21) At the appropriate stage in deliberations, requests the ARAC Assistant Chair to arrange for regulatory drafting support.
1122) At each ARAC meeting, reports progress, decisions reached, follow-on actions, schedule, and issues remaining to be resolved. Any written status report should be transmitted to the ARAC assistant chair at least three (3) weeks prior to the ARAC meeting if the report is to be distributed to ARAC members.
1223) Coordinates with other working group chairs to ensure there is no duplication of efforts or conflict of concepts.
(13) Once the work plan/concept is approved by ARAC, leads the working group toward technical agreement on regulatory change recommendations. The product should be a draft of proposed changes to regulatory text.
(14) Establishes task groups, as appropriate, to accomplish a sub task.
1524) Ensures progress toward consensus is being achieved.
(16) Is a voting member of the working group unless another representative of the chair's organization represents that organization as its voting member.
1725) Ensures consistency between documents prepared for ARAC recommendation to the FAA and corresponding documents prepared for the JAA.
1826) If a legal or economic issue arises during deliberation, obtains informal legal or economic advice through the FAA Representative.
(19) Briefs ARAC on the concept and obtains ARAC concept approval.
(20) If the concept is approved by ARAC, requests the ARAC Assistant Chair to arrange for regulatory drafting support.
17) Ensures the proposed document (excluding the economic analysis) is drafted. If drafting support is provided by an FAA-supplied contractor, the Working Group Chair works directly with that contractor ; the FAA does not serve as an intermediary.. (The ARM Regulations Analyst serves as an intermediary when necessary.). Supporting documentation (notes, suggestions, decisions/consensus) and justifications for each decision made and action recommended must be available to the drafter for use in writing the draft.
2) Must8) Should accept format and content changes to proposed recommendations when recommended by the FAA or one of its drafting support contractors. These format and content changes will only be recommended to ensure compliance with drafting guidelines imposed on the FAA and willshould not change technical decisions made by the working group.
3) A9) To expedite completion of the draft regulatory document, advises the ARAC Assistant Chair as soon as it is realizedhe or she is aware of a probable target date when formal legal and/or economist support will be required to expedite completion of the draft regulatory document .
2430) Ensures that each proposed recommendation submitted to ARAC for approval is a complete package (See Appendix E for definition).
2531) Upon completion of the regulatory document (including formal reviews by the Offices of Aviation Policy and Plans and Chief Counsel (AGC) review), presents the final product to ARAC for approval.
H. JAR/FAR Harmonization Working Group Chair. In the case of harmonization tasks, ARAC and the JAA study group appoint co-chairs. The ARAC (i.e., U.S.) working group co-chair facilitates meetings in the United States and reports to ARAC. The JAA (i.e., European) working group co-chair facilitates meetings in Europe and reports to the JAA study group.
I. Working Group Members. (Non FAA) Working group members are volunteers appointed by the ARAC Assistant Chair, the Assistant Executive Director, and the Working Group Chair. They include a diverse and balanced representation capable of providing a thorough investigation of the issues in the completion of the assigned task. When appropriate and with the approval of the Working Group Chair, working group members may invite persons other than working group members to speak directly to a working group and participate in its discussions. However, these invited persons are not members of the working group and have no voting rights. Working group members' responsibilities include:
(1) Ensuring availability to attend periodic working group meetings.
(2) Contributing their respective aviation knowledge and expertise to the task(s) assigned to the work group.
(3) Taking an active part in representing the public interest in making contributions to the rulemaking process.
(4) Coordinating with constituents to gain their input early in the process.
(5) Harmonization participants on the working group are responsible for ensuring that the international interests/concerns are made known to the working group.
J. FAA Representative to the Working Group (FAA) The FAA Representative is a member of the FAA staff who serves as the liaison between the working group and the FAA, to ensure the FAA's technical-level interest/concerns are made known to the working group. As a member of the working group, the FAA Representative actively participates with the group contributing professional advice based on experience. The FAA Representative is expected to participate as if working on an FAA project; accordingly, the representative must express to the working group the same concerns he or she would have in developing an FAA action. A working group has only one "FAA Representative." Although other FAA employees may contribute to the deliberations of a working group, these contributions must be made through the FAA Representative. When appropriate and with the approval of the Working Group Chair, other FAA employees may be invited by the FAA Representative to speak directly to a working group and participate in its discussions. However, these other FAA employees are not members of the working group and have no voting rights. Specifically, the FAA Representative:
(1) Serves as the leader of the FAA internal team responsible for the task assigned to the working group.
(2) Provides a copy of the agenda for each working group meeting to the FAA internal team members prior to the meeting.
(3) Following each working group meeting, prepares a trip or meeting report and provides a copy of the report to the FAA internal team members and FAA management, as appropriate, and to the ARM Regulations Analyst. The report should include working group progress and activities, a summary of the issues that were raised, how those issues were resolved, and what issues need further discussion. The report should be completed within 2 weeks of the working group meeting.
(4) Provides to the working group all background material relevant to the task, including unresolved petitions for rulemaking and exemption.
35) Participates fully in the discussions, deliberations, and negotiations of the working group to an extent that allows the FAA to be considered a part of any working group consensus that leads to an ARAC recommendation.
The FAA Representative may vote as a full member of the working group on any issue put to a vote.
46) Provides the FAA position to the working group. The FAA Representative should be mindful that he or she cannot commit the FAA to a specific course of action because there will be a further management review of the documents once they are submitted to the FAA as formal recommendations.
57) Ensures that if he or she holds a minority position, that position is accurately presented to ARAC through the ARAC Assistant Executive Director.
68) Serves as the focal point between the working group and other FAA elements.
79) Coordinates with directorates and other FAA organizations to gain their input early in the developmental process. To ensure timely input to the working group, this coordination should take place when that the working group is making its technical decisions.
(10) Provides a copy of the working groupís work plan and concept paper/briefing to the FAA internal team members no later than two (2) weeks before they are presented to ARAC for approval.
811) If the working group chooses to ignore FAA suggestions concerning the format or content of proposed recommendations, brings the matter to the attention of the Assistant Executive Director for resolution with the ARAC Assistant Chair.
912) Invites the assigned FAA internal team attorney and economist to ARAC meetings at which the working group briefs ARAC on its work plan and conceptual approach.
03) Keeps the working group members informed of FAA opinions, concerns, and objections to working group activities.
14) Cannot stop or veto a working group activity. He or she does not have the authority to concur with an action on behalf of the FAA.
(12) Obtains estimates from the working group of target dates and working group needs for drafting, legal, and economist support. These dates should be coordinated with the Office of Rulemaking to ensure that consideration is given to the availability of economist and legal resources in the light of other ARAC and agency rulemaking priorities.
3) Informs the FAA internal team members of progress/activities after each working group meeting.5) Once the working group begins drafting, the FAA Representative provides copies of all drafts to the FAA internal team members when they become available.
46) Relays concerns raised by the attorney or economist to the Working Group Chair, who determines the next working group action.
57) Coordinates closely with the working group JAA representative on harmonization tasks to ensure that harmonization is achieved.
68) Presents all principals' briefings to FAA management.
K. FAA Internal Team. (FAA) An internal team is established for each ARAC working group to support the FAA Representative. The FAA internal team is composed of, as a minimum, an attorney, an economist, and a regulations analyst from the Office of Rulemaking or a technical writer/editor from the concerned directorate. Other offices with an interest in the task of the working group also may participate on the FAA internal team. FAA internal team members are responsible for keeping the FAA Representative informed of any opinions, concerns, and objections they might have on the working group's activities. FAA internal team members may not attend any working group meetings unless invited by the FAA Representative and their attendance has been approved by the Working Group
chair. The following are members of the FAA internal team with their respective responsibilities:
(1) Regulations Analyst. (FAA) Technical writing/editing for ARAC activities is provided by the Office of Rulemaking through the assignment of a
Regulations Aregulations analyst. As required, ARM may additionally procure technical writing/editing support from contractors. The Regulations Analystregulations analyst provides the following services to the FAA internal team, working group, and ARAC:
a. Prepares all Federal Register announcements of ARAC meetings that address specific issues and notices that announce the assignment of new tasks and working groups.
b. Maintains a current working group membership list, including the name, address, and telephone number of each participant.
c. Coordinates the formulation of the FAA internal team.
d. Attends FAA internal team meetings.
e. Ensures appropriate tracking of the working group packages.
f. Provides technical writing assistance to the working groups in the preparation of regulatory/advisory material.
g. Attends working group meetings as necessary.
h. Provides group facilitation services to the working group when requested by the Chair.
i. Provides information to maintain the bulletin board and calendar.
j. Prepares and coordinate statements of work for contractor support if required.
k. Manages the drafting support contract.
l. Oversees drafting contractor to ensure product quality.
m. Attends ARAC meetings and prepares minutes resulting from those meetings.
n. Provides meeting logistics (at FAA Headquarters).
o. Ensures meeting notes are published.
p. Prepares letter acknowledging receipt of ARAC recommendations.
q. Ensures that drafting, legal, and economist support are made available when requested by the ARAC Assistant Chair
or the ARAC Executive Director.
r. Advises the ARAC Assistant Chair
s and the working group of delays or changes in the schedules for drafting, legal, or economist support.
s. Advises the FAA Representative regarding any problems or concerns with the content or format of proposed recommendations.
t. Prepares a monthly status report of recommendations.
(2) Directorate Technical Writer/Editor. (FAA) For those ARAC tasks involving technical expertise at the directorate level (outside of
the FAA hFAA Headquarters), a directorate writer/editor is assigned as a member of the FAA internal team and provides support, similar to that provided by the Regulation Analyst at FAA hHeadquarters, as listed below:
a. Attends FAA internal team meetings.
b. Provides technical writing/editing assistance to the working groups in the preparation of their regulatory/advisory material.
c. Attends working group meetings as requested.
d. Attends ARAC meetings as requested and assists in the preparation of minutes resulting from those meetings.
e. Provides meeting logistics as requested.
f. Provides advice and recommendations to the FAA Representative concerning document form and content.
(3) FAA Internal Team Economist. (FAA) The Office of Aviation Policy
, Plans, and Management Analysi and Plans assigns an economist to provide the following support:
a. Reviews the working group's technical concept before submission to ARAC to ensure economic considerations are included.
b. Ensures that an economic evaluation and analysis is prepared for all rulemaking documents.
c. Provides advice on the economic consequences of alternative actions being considered by a working group.
d. Provides the Office of Rulemaking with a copy of all economic comments and conc
e. Provides a copy of the economic evaluation to the Office of Rulemaking.
f. Serves on the FAA internal team responsible for the task assigned to the working group.
g. In any situation where economi
cst services are requested on an activity where ARAC support is doubtful, works with the FAA Representative to ensure that ARAC supports the working group activity before these economi cst services are provided.
(4) FAA Internal Team Attorney. (FAA) The Office of the Chief Counsel or in the case of the directorates the
Assistant ChiefRegional Counsel assigns an attorney to provide the following support:
ia. Serve on the FAA internal team responsible for the task assigned to the working group.
b. Review the working groupís work plan before submission to ARAC.
ac. Review the working group's technical concept before submission to ARAC.
bd. Develop or review the amendatory language for the changes being considered before submission to ARAC.
ce. Review draft rulemaking documents to determine the legal adequacy of potential agency action, including the form and legality of the draft document.
df. Review draft rulemaking documents to determine whether there is adequate legal authority for the proposed action.
eg. Review draft rulemaking documents to ensure compliance with applicable laws, executive orders, and regulations.
fh. Review draft rulemaking documents to determine whether the proposed requirements are consistent with other regulations and are enforceable.
gi. Review to determine whether the document is logically supported and states the justification for the proposal in sufficient detail to permit public comment and withstand judicial review for arbitrary and capricious items.
hj. Provide counsel to the FAA Representative concerning the legal pros and cons of options being considered by the working group. Consult with Office of the Chief Counsel management, as appropriate, to ensure that a unified agency legal position is presented.
i. Serve on the FAA internal team responsible for the task assigned to the working group.
jk. Work with the FAA Representative to ensure that ARAC supports the working group activity before formal legal services are provided.
kl. Meet with the FAA Representative to identify legal concerns that should be addressed in the working group's documents.
lm. When invited to a working group meeting to explain his or her concerns, work with the working group to achieve a resolution. The attorney represents the FAA -- --not the working group .
to the working group.
mn. If the working group cannot develop a recommendation that resolves the attorney's concerns, must confirm that his or her position is supported by theconsult with Office of the Chief Counsel management, as appropriate, to ensure that a unified agency legal position is presented and then advise the FAA Representative that the FAA might not accept the working group's recommendations, explaining the reasons for this position.
no. Provide ARM with a copy of all legal comments and concerns.
L. Office of Primary Interest (OPI). (FAA) The OPI is the office that requested that a specific subject matter be addressed. The OPI is responsible for:
(1) Assigning the Assistant Executive Director for each issue and the FAA Representative for each working group under its area of responsibility.
(2) Developing and documenting proposed tasks.
(3) Mailing materials to ARAC and working group members, as appropriate.
M. Office of Rulemaking. (FAA) The Office of Rulemaking is responsible for:
(1) Preparing and distributing Executive Committee and ARAC meeting minutes.
(2) Coordinating proposed tasks with the legal office and the Office of Aviation Policy
, Plans, and Management Analysi and Plans.
(3) Publishing all Federal Register announcements of ARAC meetings, Executive Committee
Mmeetings, and ARAC meetings that address specific issues and notices that announce the assignment of new tasks and formation of working groups.
(4) Maintaining a
n data base list, including the name, address, and telephone number of each participant.
(5) Mailing materials to ARAC members and ARAC Executive Committee members.
(6) Providing to the Executive Committee regular reports on the status of ARAC recommendations.
(7) Maintaining the official files and records of all ARAC activities.
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A. PRE-ARAC PHASE
IV. The Process.
A. Pre-ARAC. Because of the nature of certain issues or situations, it is appropriate to obtain input from industry and c
ustoonsumer representatives before agency consideration is given to initiating the rulemaking process. ARAC provides that mechanism to obtain the requirneeded input in a manner which benefits the FAA, the industry, and the customer. The following internal FAA functions must take place to initiate an ARAC project.
(1) Decision to Task ARAC. An internal FAA office
whichthat has established an ARAC technical subject matter area and assigned an Assistant Chair to manage that technical area may determine that it needs ARAC's assistance to solve a specific problem. FAA offices that do not have an issue established in ARAC and desire ARAC's assistance may either establish a new ARAC issue for its particular subject matter, or work within an established issue if it can be accommodated.
A/FAAA/FAA Harmonization Management Team Approval. Most FAA harmonization projects will be tasked to ARAC. However, the FAA and JAA must first decide whether the task to be established should be part of the Harmonization Work Program. To have any task included in the Harmonization Work Program, the OPI must first submit its suggested task (through appropriate channels) to the JA A/FAAA/FAA Harmonization Management Team for review. The task statement must be in the format prescribed for harmonization Terms of Reference and be suitable for publication in the Federal Register as a new ARAC task. The JAA/FAA Harmonization Management Team will coordinate the task and, if appropriate, include the task in the Harmonization Work Program.
(3) Informal Coordination of Harmonization Task with ARAC. Before the Terms of Reference for a proposed task are coordinated formally with the JAA/FAA Harmonization Management Team, the appropriate
FAA Assistant Executive Director provides a copy of the proposed Terms of Reference to his or her ARAC Assistant Chair for comment and tentative approval. If the ARAC Assistant Chair does not concur with the Terms of Reference, the FAA will modify them until the ARAC Assistant Chair concurs or withdraw n them and take no further action.
(4) Preparation of Background Paper to Task ARAC. The OPI must prepare a brief background paper defining the task, explaining why the task is needed, and identifying any commitment to a schedule (e.g., the Harmonization Work Program). In preparing the task, the FAA should review the history behind the rule, advisory material, and policy statements. The reason(s) the task is necessary should be stated, and appropriate background material should be gathered for ARAC consideration. (For harmonization tasks, the Terms of Reference will be acceptable.) The background paper should include:
a. A tasking statement. This statement should describe what the FAA would like ARAC to do, the scope of the task (i.e., references to specific FAR sections, advisory circulars, etc.), and what the final recommendation should include (e.g., the necessary documents, including economic analysis, to justify and carry out the recommendation). The reference to specific sections should be phrased in such a way as to allow ARAC to go beyond those sections to include others that might be impacted. The statement should include a task to recommend final disposition of comments (although the FAA reserves the right to do that job in-house).
b. Background of the task. This should describe what problem the FAA is intending ARAC to solve; the origin of the request (e.g., an NTSB recommendation); the history that led to the problem; and related activities taking place internally in the FAA, in ARAC, or in organization such as the Radio Technical commission for Aeronautics (RTCA), and the Society of Automotive Engineers (SAE). To minimize the possibility of duplicating or overlapping assignments, all other activities that could impact the task should be identified.
c. Schedule for completion.
This should refer to any commitments the FAA must meet to complete the action (e.g., a compliance date imposed by Congress or a completion date contained in the approved Harmonization Work Program)Each new task statement must contain a date by when the task must be completed. If circumstances allow, ARAC will be permitted to negotiate that completion date with the FAA.
d. Determination of ARAC issue. This should recommend the ARAC issue under which the task should be completed (e.g., general aviation operations, rotorcraft, etc.) For a task that crosses issue lines, the FAA may recommend that the Executive Committee manage the task.
(5) Coordination of Background Paper Within FAA. The Office of Rulemaking ensures that the background paper is coordinated in the FAA with the Office of the Chief Counsel, the Office of Aviation Policy and Plans, and the OPI. For harmonization tasks, this coordination takes place during the Harmonization Work Program approval process.
(6) ARAC Acceptance of Task.
a. Review by ARAC. The
FAA Office of Rulemaking will transmit the background paper to the Executive Committee members for review and acceptance of the task. In their review of the task, the Executive Committee members should determine if the task will impact on any other ARAC issue or any other task. They also should determine if completion of the new task would be dependent on the completion of any other task. The ARAC Assistant Chair to which the task would be assigned should recommend the priority of the new task in relation to other tasks that are being completed under his or her issue.
b. Simultaneous review by
ARAC Assistant Executive Directors. The Office of Rulemaking will provide a copy of the background paper to the ARAC Assistant Executive Directors to review at the same time the background paper is sent to the Executive Committee members. The ARAC Assistant Executive Directors should determine if the task will impact on, or be impacted by, any internal FAA project.
c. Schedule for completion of review. The Executive Committee members and the
ARAC Assistant Executive Directors will be given 10 working days to provide feedback. If no feedback is received from an Executive Committee member, it will be assumed that he or she has no comments on or problems with the proposed task. If there are problems, the Office of Rulemaking should be advised prior to the end of the 10-day comment period. All comments should be sent to the FAA Office of Rulemaking.
(7) Preparation of Tasking Letter to ARAC. Once all of the necessary steps have been accomplished to determine that ARAC should be assigned a task, the Office of Rulemaking will prepare a tasking letter from the Associate Administrator for Regulation and Certification to the appropriate ARAC Assistant Chair.
(8) Task Approval. All tasks must be approved by the Associate Administrator for Regulation and Certification prior to assigning them to ARAC. Approval is documented by the tasking letter. If the Associate Administrator elects not to sign the tasking letter, the process cannot go forward until the objections are addressed. Once the tasking letter is signed and sent to ARAC, the formal ARAC process begins. In the case of harmonization tasks, the task set forth in the tasking letter must be fully identical to the JAA/FAA agreed task.
(9) Discussion of the Task at Next ARAC Meeting. The
FAA Assistant Executive Director ensures that a discussion of the new task is included in the agenda for the next ARAC meeting for the relevant issue.
B. WORKING GROUP FORMATION PHASE
B. Working Group Formation. For ARAC to accomplish its mission, a staff may be formed. Extended interest and expertise may be available from the general public which would positively contribute to ARAC's ability to study and make recommendations on specific tasks. These persons must be brought together, assembled, and organized. ARAC may choose to establish a working group to accomplish a specific task; or a task may be worked within an ARAC interest area, by an existing working group. If the task is assigned to a working group, the working group is directly responsible to the ARAC Assistant Chair for completion of the assignment, etc. Although the working group is staff to ARAC, to preserve the autonomy of group, members of ARAC may not enter the working group arbitrarily.
(1) ARAC Decision to Accept Task. Should ARAC decide to accept the task, acceptance is documented in the minutes of the ARAC meeting.
(2) Appointment of Working Group Chair/FAA Representative.
a. If a task is formally accepted by ARAC and ARAC has decided to establish a new working group, the ARAC Assistant Chair, in coordination with the Assistant Executive Director, must appoint a Working Group Chair. This Chair must be a person who possesses technical expertise in the specific task area, who is capable of organizing and leading the working group, and who is available to meet the commitments of the Working Group Chair. The Working Group Chair need not be a representative of any of the ARAC member organizations. Although there is no legal prohibition to an FAA Representative being appointed as the Working Group Chair, it is discouraged. For FAR/JAR harmonization working groups, it is desirable to have co-chairs (one European and one from the United States) for continuity and workload sharing.
b. While awaiting the final selection and appointment of the working group members, the Assistant Executive Director appoints the FAA Representative to the working group.
(3) Publication of the Federal Register Notice: Announce Task/Establish Working Group. Public notice must be given to announce the task and establish the working group. The Federal Register is the accepted form for all government public notice. This notice is prepared by the
Regulations Aregulations analyst, coordinated with the ARAC Assistant Chair and released for publication in the Federal Register by the Assistant Executive Director. The notice states the task and solicits participation from interested members of the public who possess knowledge or experience in the task area. Interested persons are instructed to forward, in a letter to the Assistant Executive Director, their qualifications and desire to participate.
(4) Brief Working Group Chair on Expectations and Responsibilities. While waiting for the public response to the Federal Register notice, the Office of Rulemaking briefs the appointed Working Group Chair on the duties, responsibilities
, and requirements of both the Chair position and the working group. This is extremely important because the Working Group Chair will lead the working group through its process.
(5) FAA Internal Team Assigned. The Office of Rulemaking prepares and forwards letters to other offices with rulemaking responsibility requesting designation of an office representative to serve as an FAA internal team member to support the FAA Representative. The FAA internal team meets as necessary to discuss pertinent issues and to provide feedback to the FAA Representative on topics such as the work plan, the concept, and draft recommendations. The FAA internal team members are not members of the working group but provide support to the FAA Representative.
(6) Working Group Members Chosen. As the responses to the Federal Register notice are received in the FAA, the Assistant Executive Director should send copies of these responses to the ARAC Assistant Chair and the Working Group Chair for review and consideration. As soon as possible after the publication date of the notice, the Assistant Executive Director, the ARAC Assistant Chair, and the Working Group Chair should meet to select the members of the working group.
a. Selection of members should be based on their technical expertise in the task area and availability to participate actively in the working group activities.
b. Although not legally required, a substantial attempt should be made to ensure a balanced representation of interests in the working group.
c. Task modifications cannot be made without the approval of the Associate Administrator for Regulation and Certification
approval; however, should the Associate Administrator for Regulation and Certification approve a task modification, it may be necessary to change the composition of the working group to reflect additional expertise to work the new task.
d. The Assistant Executive Director must respond, in writing, to all letters received, notifying the petitioners of their selection/non-selection. The Assistant Executive Director should also forward to the ARAC Assistant Chair and the Working Group Chair the official list of names and addresses for all members selected.
e. Following the selection of working group members, the Working Group Chair will establish the date, time, and location of the initial working group meeting.
f. The Working Group Chair will notify working group members, in writing,
the notification of the date, time, and place of the initial working group meeting. Written notification of any working group meeting must be given 15 days prior to the scheduled meeting date.
g. There is no restriction on the number of members who
canmay serve on a working group; however, a working group should consist only of individuals who participate actively in working group discussions. Members need not be representatives of any of the ARAC member organizations represented on the full committee.
h. If ARAC assigns a new task to an existing working group, it must determine the workload that the group is already facing, and whether the working group includes the expertise required to accomplish the new task.
i. Normally, there is only one FAA Representative on a working group, who serves as the liaison between the working group and the FAA. The FAA Representative should be from the FAA office that requested that the subject matter be addressed (the
office of primary interestOPI). The FAA Representatives may be assisted by other FAA employees as necessary. To the extent possible, the FAA Representative is the team leader of any subsequent FAA rulemaking project.
j. To ensure that all members have a clear understanding of the FAA task assignment, each working group functions under a written task statement accepted by ARAC. The agreed task statement serves as the basis for the working group's activity.
k. The working group may form a task group to handle a specific task. The task group must provide a report to the working group. A task group is disbanded when all of its assigned tasks are completed.
l. Normally, the working group activity is complete after ARAC forwards the recommendation to the FAA; however, if the initial task assignment tasks the working group with reviewing public comments or drafting a final rule, or if the FAA asks ARAC to consider comments after the proposal has been published, the working group remains inactive until the next action is required.
OTEote: To ensure that all members have a clear understanding of the FAA/JAA task assignment, each FAR/JAR harmonization working group functions under a written task statement accepted both by ARAC and its counterpart in Europe. The agreed task statement serves as the basis for the working groupís activity. After the FAR/JAR harmonization working group has finalized the rulemaking packages, the recommended notice of proposed rulemaking (NPRM) is submitted to the FAA through ARAC, and the recommended corresponding notice of proposed amendment (NPA) is submitted to the JAA through the European system.
(7) Identifying Drafting Support. At this point it may be evident that the working group will need drafting support to assist in developing its recommendation. For FAA
hHeadquarters projects, the Office of Rulemaking will make arrangements to provide the drafting support. For Directorate projects, the writer/editor will make arrangements to provide the support. Either of these FAA offices may secure the services of a private contractor , and would administer the contract.
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C. WORK PLAN PHASE
C. Work Plan. Once the working group is assembled, it must decide what it has to do and how it is going to do it. This is accomplished through the establishment of a work plan. The work plan defines the task assignment, identifies the issues to be resolved, identifies individual assignments, develops a schedule, and establishes common ground rules by which the group will function. This methodology for task accomplishment must be submitted to and approved by ARAC prior to working group's actual commencement of work on the task. The work plan is the cohesive overlay that will move the working group through the process to completion.
(1) Brief Working Group on ARAC Procedures, Task Assignment
a. The Working Group Chair should contact the
Regulations Aregulations analyst to confirm the date, time, and place of the initial working group meeting and request that the Office of Rulemaking brief the working group on ARAC procedures at that meeting. This will provide a working familiarity with the ARAC procedures for the newly formed working group and identify non-technical areas which may be of special interest to the working group.
b. The FAA Representative briefs the entire working group on the task assignment. This briefing will include the task assignment from the FAA's perspective and any additional background or peripheral information that will be helpful.
(2) Working Group Reaches Understanding of Task. For the working group to proceed further, it is an absolute requirement that all working group members have a thorough understanding of the task. All questions must be asked. Any questions which are not answered to the satisfaction of all members
, must be addressed to the ARAC Assistant Chair for resolution. The working group must then establish the ground rules for group functioning.
(3) Working Group Considers Regulatory History and FAA/JAA Rulemaking. Items such as regulatory history, current FAA rulemaking, and JAA rulemaking must be considered. This is where the FAA Representative to the working group can provide valuable information.
(4) Identifies Issues to be Addressed and Affected Parties. To accomplish the task, it is often advantageous to break down the task into its composite issues and then address individual issues. The working group must identify all issues to be resolved. During this process, the working group must also identify all those who will be affected by any recommendations
, and should address any of their concerns.
(5) Working Group Identifies Assignments. In the process of addressing issues and completing tasks, it is often advantageous to assign portions of issues, milestones, or tasks to sub-portions of the working group (task groups) to be worked on simultaneously. These assignments need to be identified, assigned to responsible task groups, and recorded in the work plan. Since the whole equals the sum of the parts, it is imperative that all completed task group assignments be reviewed and accepted by the working group.
(6) Develop Schedule. For the working group to assess its progress, a schedule must be developed with goals and milestones.
If the task does not provide a time requirement, the working group should inquire as to the existence of any time guidelines. (Again, here is where the FAA Representative can be of value.) The schedule should allow for completion of the task to meet the deadline imposed by the FAA. Consideration must be given to the availability to meet of the working group and task group members; frequency, duration and location of meetings; and a realistic expectation of time required to accomplish assignments and milestones leading to task accomplishment. If the working group determines that the FAA-imposed deadline cannot be met, ARAC may negotiate the schedule with the FAA. As in any schedule, there must be a determination of project flow, critical path, and unavoidables built into the schedule. The complete schedule must be recorded and distributed to each member of the working group for planning purposes.
(7) Present Work Plan to ARAC for Approval. After the working group formulates its work plan, the Working Group Chair must present this plan to ARAC for approval. If ARAC disapproves the plan, the reasons for disapproval will be given and the working group will reconvene, address the objections, and adjust the work plan for resubmission and presentation to ARAC.
(8) ARAC Approves the Work Plan. By obtaining ARAC approval of the work plan, assurance is achieved by the working group that the task is understood
and, the methodology planned is consistent with the desires of ARAC, and that the work to be done will culminate in a recommendation to ARAC that addresses the assigned task.
which addresses assigned task.
R/JARA/JAA Harmonization Work Program. A FAR/JAR harmonization working group must present its work plan to ARAC and the JAA study group. If either the FAA or the JAA study group disapproves the plan, the reasons for disapproval will be given and the FAR/JAR harmonization working group will reconvene, address the objections, and adjust the work plan for resubmission. By obtaining joint approval of the plan, assurance is achieved by the FAR/JAR harmonization working group that the task is understood and the methodology planned is consistent with the desires of both FAA and JAA.
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D. CONCEPT APPROVAL PHASE
D. Concept Approval. To ensure that the working group is proceeding in a direction consistent with the task, it is important to develop a concept and obtain ARAC's agreement to the concept before further resources are expended. The concept briefing is a detailed discussion of the proposed recommendation. For anticipated rulemaking recommendations, the concept briefing includes regulatory language and, when approved by ARAC, will serve as the detailed outline for the proposed rulemaking document.
(1) Consider Alternatives and Solutions (including nonregulatory). A working group must decide what the desired outcome of its efforts will be
, and how to accomplish that outcome. What is the best way to address the issues to be resolved? Not all tasks will require rulemaking action. Some tasks may be accomplished through other avenues such as development of an advisory circular, development of a technical report, or a recommendation to establish a training program. The working group must consider all alternatives before deciding how to address the issues. The FAA Representative should discuss the alternatives with the FAA internal team members to make sure the alternatives are legally and economically sound.
(2) Select the Most Desirable Approach and Identify Deliverables. After considering the alternatives and solutions, the working group must decide on its end product. In what form will its recommendation be submitted to ARAC? Will it be rulemaking, advisory material, or both?
(3) Prepare Justification for the Selected Approach. In its concept briefing, the working group must present the logic that led to the particular path chosen. Therefore, it is important to document the reasons for all decisions that are made. If the recommendation will be in the form of a
Notice of Proposed Rnotice of proposed rulemaking (NPRM), the justification supporting the NPRM must be explained in the preamble, and the working group will save much time and reconstruction efforts if the justification for its decision is recorded when the decision is made. The justification should include discussion of any objections to the approach taken. Documentation of objections and their dispositions will reduce the possibility of receiving adverse comments from members during any public comment process.
(4) Narrow the Issues. The working group must study all the issues it has identified and determine those
whichthat can be disposed of outside the scope of the recommendation and those whichthat will haveneed to be addressed in the recommendation.
(5) Develop Regulatory Language, if Applicable, or Nonregulatory Language, to the Extent Possible.
a. If the working group has decided that regulatory action is necessary, it will need to develop, to the extent possible at this point, the regulatory language that will afford the desired result. The Office of Rulemaking can help draft this language, or may assign a private contractor to assist the working group in drafting the language. It is strongly recommended that the working group take advantage of this drafting support so problems with format and content (NOT technical content) can be avoided. The legal office should also be involved in this initial draft of the regulatory language to ensure the legality of the proposed action.
b. If the working group has decided that the recommendation will be nonregulatory in nature, it will need to develop as complete an outline as possible, including as much actual draft language as is available. Again, the Office of Rulemaking can assist the working group in developing the draft language, and the legal office should be consulted for legal advice.
(6) Coordinate the Concept with Industry Constituents/Coordinate the Concept with the FAA Internal Team. Throughout the development of the working group's concept, during its deliberations, and during development of the final document, members should provide their constituents with reports on decisions being made and objections being raised. The FAA Representative, as a member of the working group, has the same responsibility to keep the FAA internal team informed of working group actions. Any draft documents that are distributed for review must be marked DRAFT WORKING MATERIAL--NOT FOR PUBLIC RELEASE.
(7) Present Concept to ARAC for Approval. When the working group is ready to present its concept to ARAC, the Working Group Chair should contact the ARAC Assistant Chair
for the appropriate interest area and secure time on the next meeting's agenda. Before the working group can go forward with achieving its task, ARAC must approve, during a public ARAC meeting, the concept that has been developed. The presentation of the concept should be included in the agenda set forth in the Federal Register announcing the public meeting, and copies of the briefing should be made available for advance distribution as requested. The FAA attorney and economist should be invited to attend the meeting. At the meeting, the Working Group Chair or appointed substitute will present any regulatory and/or non-regulatory language the working group has developed to give ARAC a clear picture of the final goals and intentions of the group.
(8) ARAC Approves the Concept. After hearing the working group presentation of its concept, ARAC must vote whether to accept the concept or task the working group with refining its goals and presentation. It is ARAC's responsibility to ensure the working group is proceeding on the right track, and ARAC approval of the concept is a prerequisite for obtaining further FAA drafting assistance.
(9) FAA/JAA Harmonization Work Program. The concept developed by the FAR/JAR harmonization working group must be approved by both ARAC and the JAA study group.
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E. RECOMMENDATION DEVELOPMENT PHASE
E. Recommendation Development. After ARAC approves the concept, the working group may proceed with developing the actual recommendation document.
(1) Complete Final Draft of Regulatory Language, if Applicable. If regulatory action is the recommendation, much of the regulatory language should have been developed during development of the concept. If additional regulatory language is needed, it should be addressed before the rest of the document is developed. As before, the Office of Rulemaking can assist with the draft language, and the legal office should be consulted.
(2) The Working Group Accepts the Regulatory Language. Before preamble language and an economic analysis can be written, the working group must accept the regulatory language that will be the basis for the document.
aAny Issues and Alternatives for Preamble Discussion, Advisory Circular, Technical Report, etc. All issues and alternatives discussed (including objections and dissenting views) that led to decisions by the working group must be addressed in the recommendation or in the letter transmitting the recommendation. Included in the discussion should be any reasons for dissent, and the working groupís justification for proceeding in the face of dissent. For regulatory actions, this discussion should be addressed in the preamble.
(4) Assemble the Record of Decision Logic Used and Justification for Recommendation. Although working groups are not required to keep written minutes or records of their meetings, their final recommendations to ARAC, and ultimately to the FAA, need to address what decisions were made, and why, during the process of achieving their goals. It is helpful if this information is recorded continuously so it can be turned over to the drafter without having to reconstruct meeting events and decisions made.
(5) Arrange for Drafting Support; Develop Preamble, AC Language, Report, etc.
a. The FAA can provide support to draft the working group's document to ensure that the recommendation is properly written, is in the required format complying with legal requirements, and is fully justified. Depending on the nature of the document, the Office of Rulemaking may recommend contract support, just as contract support is used in other, agency-initiated actions.
b. To obtain FAA drafting support, the Working Group Chair notifies the ARAC Assistant Chair of the need for the support. The ARAC Assistant Chair then notifies the Assistant Executive Director, who in turn notifies the Office of Rulemaking or the directorate writer/editor.
(6) The Working Group Accepts the Final Draft. Whether the working group's document is drafted by working group personnel, FAA personnel, or private contractor personnel, the working group must approve the final draft.
(7) Assemble Cost-benefit Data and Identify Key Factors for Economic Analysis, if Applicable. The working group should provide all applicable information that the economist may need to develop an economic evaluation. This information would include any key economic concerns of interest to the public.
(8) FAA Economic Analysis is Developed, if Applicable; FAA Legal Review. When the regulatory language and preamble material have been drafted and economi
cst support has been requested, the FAA internal team economist will draft the economic evaluation. Ninety days must be allowed for the economist to develop the economic evaluation. Simultaneously, the FAA internal team attorney will commence legal review of the final draft. When the FAA economist completes the economic evaluation, the FAA attorney will also review that document. An aggregate total of 120 (the 90 days allowed for the economist + 30 additional) days is allowed for the attorney to complete his or her review. These are target time periods and may vary in light of other ARAC and agency rulemaking priorities. The FAA must perform a legal review before a rulemaking action can be considered a complete package.
Ccirculars do not require an economic evaluation/analysis. However, advisory circulars do require legal review. Ninety days must be allowed for this legal review.
b. To obtain FAA economic analytical support and legal review, the Working Group Chair notifies the ARAC Assistant Chair of the need for
economic analytical support and FAA legal that support/review. The ARAC Assistant Chair notifies the Assistant Executive Director. The Assistant Executive DirectorFAA Office of Rulemaking, in writing; a copy of the approved draft should be notifies the FAA Representative, the legal office, and the Office of Aviation Policy, Plans and Management Analysis. The FAA Representative and the Office of Rulemaking ensure thatprovided with the notification. The Office of Rulemaking notifies the legal office and the Office of Aviation Policy , Plans and Management Analysis have the draft document from the working and Plans, in writing, and ensures that those offices have received and are working from the draft document approved by ARAC.
(9) The Working Group Accepts the Economic Analysis, if Applicable, and Approves the Final Package.
a. For rulemaking packages, the FAA Representative ensures that the working group has a copy of the economic evaluation that was developed by the FAA economist. If the working group has concerns or problems with the evaluation, the FAA Representative should take the concerns back to the FAA economist and resolve the issues. Only when the economic evaluation has been accepted will a summary be inserted into the preamble
, and t. (The full economic evaluation will ultimately be filed in the FAA rules docket.)
b. When drafting of the final package is complete, the working group must approve the package. That is, it must agree that this is the document it wants to submit to ARAC for recommendation to the FAA. For rulemaking packages, this will include a preamble (with an economic evaluation summary)
and, regulatory language, and the full economic evaluation. Other packages that may be approved can include an advisory circular, a technical report, or another proposal.
(10) Presentation of the Recommendation to ARAC. When the working group is ready to present its final document to ARAC, the Working Group Chair should contact the ARAC Assistant Chair
for the appropriate interest area and secure time on the next meeting's agenda. No later than three weeks prior to this next meeting, the Working Group Chair should provide the ARAC Assistant Chair with the recommendation document(s) for distribution to all ARAC members for review.
a. ARAC must approve, during a public meeting, the recommendation that has been submitted. The presentation of the recommendation needs to be included in the agenda set forth in the Federal Register announcing the public meeting, and copies of the recommendation need to be made available for advance distribution as requested.
b. At the public meeting, the Working Group Chair or an appointed substitute will formally present the recommendation to ARAC for approval. Questions and comments will be solicited from ARAC members and any interested members of the public.
(11) ARAC Approves the Recommendation. For the recommendation to be submitted to the FAA, the voting members of ARAC must approve the working group's recommendation. If the recommendation is not approved, the members must determine why it is not approved, resolve the issue, and go back to the appropriate step in the process.
(12) ARAC Transmits Recommendation to the FAA. When the recommendation has been approved by ARAC, a cover
memoletter addressed to the Associate Administrator for Regulation and Certification is prepared for signature by the ARAC Assistant Chair , and accompanies the recommendation to the FAA. See Appendix E, an ARAC Checklist for Recommendations.
(13) FAA/JAA Harmonization Work Program. The FAR/JAR harmonization working group must present its final document to ARAC and the JAA study group for approval. Keep in mind that when the ARAC recommendation is in the form of an NPRM, a similar document (NPA) has been drafted for the JAA system. Following JAA study group review, the document will be issued as a formal NPA in accordance with JAA procedures. If the recommendation is not approved, it must be determined why it is not approved. Appropriate actions must be decided to resolve the issue and go back to the appropriate step in the process. Non-joint approval by both ARAC and the JAA study group may lead to disharmony.
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F. FAA ACTION PHASE
F. FAA Action on ARAC Recommendations. After the ARAC recommendation is forwarded to the FAA, the FAA will take action in the following manner:
ement Letter. When the FAA receives a recommendation from ARAC, the Office of Rulemaking prepares a letter for the signature of the Associate Administrator for Regulation and Certification acknowledging receipt. This letter is just an acknowledg ement--it does not mean that the FAA will process the recommendation as submitted. The letter is coordinated with the appropriate OPI before it is signed.
(2) Principals' Briefing. While the acknowledg
ement letter is being prepared and coordinated, the O ffice of Rulemaking schedulesPI recommends whether a meeting of FAA's upper-level management to brief them on the contents of the recommendation is necessary. This management briefing is called a "principals' briefing," and is conducted for allsome FAA rulemaking actions--whether or not they are recommended by ARAC. The Associate Administrator for Regulation and Certification; the Chief Counsel; the Associate Administrator for Policy, Planning, and International Aviation; the director of the Office of Aviation Policy, Plans, and Management AnalysiPolicy and Plans; and the director of the OPI are invited to attend. In addition, the Deputy Administrator is advised that a briefing is being scheduled and invited to attend. The FAA Representative to the working group presents the briefing. As a result of the briefing, FAA management may determine that changes to the ARAC developed regulatory package may be necessary. Depending on the extent of the changes, the FAA may or may not ask ARAC to make them. If the FAA chooses to make the changes without ARAC's input, ARAC will be advised that changes are being made.
a. Nonacceptance of
Rrecommendation. If, during the principals' briefing, FAA management decides that ARAC's recommendation is not acceptable, a letter will be sent to ARAC stating why the recommendation is not acceptable. The FAA would not accept a recommendation if, for example, it is not adequately justified ,; the FAA has no authority to take the recommended action ,; a rule proposed in the recommendation is not legally enforceable,would not be legally enforceable; or a recommendation to issue an advisory circular should actually be rulemaking. The letter to ARAC will be prepared by the Office of Rulemaking and signed by the Associate Administrator for Regulation and Certification.
Rrecommendations. Nonregulatory documents Rrecommended by ARAC do not require a principals' briefing. These recommendations are processed following administrative procedures established by the FAA for documents of their type.
(3) Coordination Within the FAA. After the recommendation is formally accepted, it must be coordinated throughout the FAA for agency concurrence. The
document is routed to all appropriate
Associate and Executive associate- and executive-level FAA offices for input and concurrence. Regulatory documents are then forwarded to the Deputy Administrator and Administrator for approval.
(4) "Significant/Nonsignificant" Determination. Executive Order 12866 requires that all "significant" regulatory actions be reviewed by the Office of Management and Budget prior to being issued. An action is considered significant under the executive order if it is likely to result in a rule that may: have an annual effect on the economy of $100 million or more; create a serious inconsistency or otherwise interfere with an action planned by another agency; materially alter the budgetary impact of entitlement, grants, user fees, or loan programs or the rights and obligations of their recipients; or raise novel legal or policy issues. The Office of the Secretary of Transportation also requires that regulatory actions that it determines to be significant (under its own criteria) be reviewed by the Office of the Secretary of Transportation. "Significant" as defined by the Office of the Secretary of Transportation includes actions also defined by the Office of Management and Budget as significant and those that concern a matter on which there is substantial public interest or controversy. As a rule, the FAA will recommend that regulatory actions received by ARAC are "nonsignificant," on the basis that they were developed by the affected parties and therefore should result in no controversy.
(5) Office of the Secretary of Transportation/Office of Management and Budget Review. If a regulatory action is determined to be "significant" under the Office of the Secretary of Transportation criteria, it must be coordinated within the Office of the Secretary of Transportation. If it also has been determined to be "significant" under the Office of Management and Budget criteria, then it also must be reviewed by the Office of Management and Budget. No regulatory action may be issued until the determinations have been made and the required reviews have been completed.
(6) -Disposition of ARAC Recommendations. After the FAA has completed all briefing and coordination requirements and the document (either regulatory or nonregulatory) has been signed and published, as appropriate, a letter will be sent to the ARAC advising of the disposition of the recommendation.
(7) Disposition of Comments to an ARAC Recommendation. Depending on the complexity of comments received as a result of publication of an ARAC recommendation, the FAA may or may not decide to task ARAC with disposition of the comments. If no substantive comments are received, the FAA will proceed with the final action with no ARAC assistance. If substantive comments are received, the FAA will generally task ARAC with recommending the next step. In the event the FAA chooses to take the next action internally, ARAC will be notified in writing of that decision.
(8) Disposition of Comments to an FAA/JAA Harmonization Work Program Recommendation. It is anticipated that neither the NPRM nor the NPA developed by a FAR/JAR harmonization working group will receive substantive comments during the public comment period. If the harmonization process works as it should, there should be no substantive comments that need to be reviewed by the working group. However if the FAA or the JAA do receive comments that would result in substantive comments on either proposal, the FAA or the JAA may ask ARAC or the JAA study group (or both) to recommend disposition of those comments to ensure that the regulations will remain harmonized throughout the FAA and JAA rulemaking procedures.
V. Consensus. Consensus is agreement by all that a specific course of action is acceptable. Consensus can be unanimous or near-unanimous. Consensus does not mean "majority rules." It is important to reach consensus in every phase of the ARAC process because introduction of disagreement in later phases of ARAC is counter productive to ARAC's objectives and extremely costly to the FAA's rulemaking process.
Note: This general philosophy for reaching consensus is also applied within a FAR/JAR harmonization working group.
A. Three Levels of Consensus
(1) Full Consensus means that agreement among members is unanimous. All members of the group agree fully in context and principle and all members fully support the specific course of action.
(2) General Consensus means that, although there may be disagreement among the members of the group, the group has heard, recognized, acknowledged, and reconciled the concerns or objections to the general acceptability of the group. Although not every member fully agrees in context and principle, all members support the overall position of the group and agree not to object to the proposed recommendation.
(3) No Consensus means that the disagreement among the members of the group cannot be reconciled to the general acceptability of the group. The group cannot reach a position that all members will support.
B. When Consensus Cannot be Achieved each member has the right and responsibility to have his
/ or her objections considered. The following guidance is provided for those situations where consensus cannot be obtained:
(1) The Dissenting Member(s) must present written objections to the group in a format that can be understood clearly by all members. To ensure communication and understanding, the group's position
, relative to the objections , must be documented with reasons why the group chose and retains its position. The documentation of objections and positions offers additional opportunity for meaningful communication among all group members in the hopes of attaining consensus. Through this exercise, disagreements can, through compromise, be resolved. If consensus still cannot be attained, the working group has the documentation required to elevate the disagreement to ARAC for resolution. With ARAC's resolution, the group can proceed with the task, because all members' concerns have been addressed by ARAC. ARAC's decision automatically provides consensus to the working group.
(2) Sometimes Reaching a Consensus is a matter of ensuring that all avenues of the problem have been explored and investigated. At times it is advantageous to bring in a group facilitator to help with the process. Facilitators are available if requested by the Working Group Chair.
C. If All Above Attempts to Attain Consensus Fail and major opposition to the group's position still exists, the proponents of the existing opposition must document their position, summarize their understanding of the group's position, and state why they believe their opposing position is superior. The group must document its position, summarize the opposition's position, and state why the group believes its position is superior and why the opposing position should not be accepted. Th
eseis documentation must be submitted to ARAC as part of the working group's report and must be included in any subsequent preamble to a draft rulemaking proposal as minority positions with the reasons that they were not adopted in the rule. If action other than rulemaking is proposed, the documentation must be included in ARAC's report to the FAA.
VI. Communications. Communications on ARAC matters must work through the ARAC
Management Smanagement structure. Non-FAA ARAC participants may not contact FAA management directly about ARAC matters without going through the ARAC Management Smanagement structure. This section has been added to provide communication guidance.
A. Between the FAA and ARAC
(1) Between FAA Management and ARAC Members. Communication between ARAC and the FAA is encouraged to go through the
assistant executive dAssistant Executive Director. If ARAC members want to talk to upper
(2) Between the FAA Representative and ARAC Members. The FAA Representative is a full member of a working group and has a responsibility to participate in the working group actions. During this participation, the FAA Representative will interact with ARAC members on the working group and will impart expertise when needed to enable the working group to achieve its task. The FAA Representative does not have the authority to make blanket statements about what the FAA will or will not accept, and his or her opinion should not be construed as FAA policy.
(3) Between Other FAA Employees and ARAC Members. Often, ARAC members may wish to directly contact members of the internal FAA team assigned to a certain task, or may have procedural questions. If the ARAC member has a question pursuant to working group activity, he or she is encouraged to first discuss the concern with the Working Group Chair, then contact the FAA Representative assigned to the working group. The FAA Representative should decide (with concurrence from FAA internal team members) whether to approach the desired person to answer the question, or to allow the ARAC member to directly contact the FAA employee. If the question is procedural, again, the ARAC member should contact his or her FAA Representative, or the designated
Regulations Aregulations analyst.
B. Between ARAC and the Working Group
(1) Between the Assistant ARAC Chair and the Working Group Chair. The Working Group Chair should keep the ARAC Assistant Chair apprised of working group progress and problems. At times, this means communication is necessary beyond the status reports given at the ARAC meetings. The Working Group Chair should inform the ARAC Assistant Chair when FAA support is needed, when a work plan has been developed, when a concept briefing is ready to be presented to ARAC, and when a recommendation is forthcoming from the working group. The ARAC Assistant Chair should inform the Working Group Chair of discussions held at Executive Committee meetings, and any other information that is pertinent to the working group's task.
(2) Between the ARAC Assistant Chair and Working Group Members. Working group members may approach the ARAC Assistant Chair at any time they feel the working group is not effectively working toward its goal. The members should first discuss any discord with the Working Group Chair; disagreement with the Working Group Chair may need to be elevated to the ARAC Assistant Chair for resolution. Generally, the ARAC Assistant Chair will communicate with working group members through the Working Group Chair. When the Working Group Chair is not involved in the discourse, he or she should be advised that the communication occurred.
C. Between the Working Group and the FAA
(1) Between the Working Group Chair and the FAA Representative. The FAA Representative is a full working group member, and any communication between the Working Group Chair and working group members should include the FAA Representative. In addition, the Working Group Chair can request a meeting with FAA personnel through the FAA Representative. The FAA Representative will identify to the Working Group Chair the FAA personnel who have been assigned to the FAA internal team (the
legal repattorney, the economist, the r ulemaking repegulations analyst, and any personnel from other technical offices.)
(2) Between the FAA Representative and Other Working Group Members. Communication between the FAA Representative and other working group members should be on a working group level. All are members of the working group, working toward a common goal, and communication should be open and honest to achieve that goal.
(3) Between the Working Group Chair and Other FAA Personnel. The Working Group Chair should go through the FAA Representative to disseminate information on a project or collect information/status on a project. The Working Group Chair may contact the
Regulations Analystregulations analyst directly to update information regarding meeting location and times, and to update other relevant information. FAA personnel should contact the Working Group Chair through the FAA Representative for any exchange or request of substantial information.
D. Between the FAA Representative and FAA Management. The FAA Representatives are encouraged to talk with their upper-level management on a subject matter to solicit management concerns and opinions without identifying specific ARAC concerns or proposals. An FAA Representative can ask management for opinions or positions on particular subjects. The FAA Representative can then take that information and advise ARAC.
E. Between the FAR/JAR Harmonization Working Group and the JAA Study Group. The FAR/JAR harmonization working group should keep the JAA study group apprised of progress and problems.
He or she should alsoThe JAA member should inform the JAA study group when support is needed, when the work plan has been developed, when a concept briefing is ready to be presented, and when a recommendation is forthcoming.
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VII. ARAC Administration
A. ARAC Meetings. A one-year calendar of all meetings must be established down through the working group level. Locations should be included if possible.
(1) Committee or
an Executive Committee Meeting. The ARAC Executive Director develops the agenda for each full (60+) committee and Executive Committee meeting and prepares a Federal Register notice announcing the meeting. The ARAC Chair approves the agenda for each full committee and Executive Committee meeting. The agenda for each full committee and Executive Committee meeting includes a briefing on FACA requirements. The briefing need not be identified as an agenda item but is conducted by the ARAC Executive Director during his or her opening remarks. Notice in writing, including the agenda, of each full committee and Executive Committee meeting is mailed to the members well in advance of the date of a meeting so the members can effectively prepare for the deliberations. In addition to the required Federal Register notice of meeting, other forms of notice are used such as the ARAC bulletin board, press releases, notices in professional journals, and notice by mail.
(2) ARAC Meeting
Oon a Specific Issue. The ARAC Assistant Executive Director develops the agenda for each ARAC meeting to discuss a particular issue. The ARAC Assistant Chair approves the agenda for each ARAC meeting to discuss a particular issue. The agenda for each ARAC meeting to discuss a particular issue includes a briefing on FACA. The briefing need not be identified as an agenda item but is conducted by the Assistant Executive Director during his or her opening remarks. The agenda will also include, after the working group status reports, a line item to address coordination of working group information with the other working groups represented at the meeting, and with working groups not represented. Notice in writing, including the agenda, of each ARAC meeting to discuss a specific issue is distributed to the members well in advance of the date of an ARAC meeting to discuss a specific issue so that the members can effectively prepare for the deliberations. In addition to the required Federal Register notice of meeting, other forms of notice may be used such as the ARAC bulletin board, press releases, notices in professional journals, and notice by mail.
(3) Working Group Meeting. Working group meetings are not open to the public. Only working group members may attend unless the Working Group Chair approves attendance by others. The Working Group Chair has the right to ask any uninvited persons to leave the meeting. The Working Group Chair develops the agenda for each working group meeting. Notice in writing, including the agenda, of each working group meeting is mailed to the members a minimum of 15 days prior to the meeting. Working group meetings are not announced in the Federal Register. However, the Working Group Chairs are expected to keep the ARAC community advised of upcoming meetings, via the ARAC bulletin board and other calendars maintained by the FAA. For FAR/JAR harmonization working group meetings, the co-chairs are also expected to keep the ARAC and JAA communities advised of upcoming meetings.
Note: Because of budgetary constraints, working group meetings requiring attendance by either the economist or attorney should be held in the United States. However, the OPI may pay the transportation expenses for the economist and/or attorney to attend a meeting outside the United States if it chooses to do so.
B. Federal Register Notice of Meeting. The Office of Rulemaking prepares a Federal Register notice no later than 30 calendar days before the proposed date of a full committee or Executive Committee meeting
. The assistant executive director prepares a Federal Register notice for an or for any ARAC meeting to address a specific issue.
(1) Federal Advisory Committee Act (FACA) Requirement. The FACA in section 10(a)(2) requires that timely notice of each meeting, open or closed, must be published in the Federal Register. The purpose is to ensure that all interested persons are notified of the meeting and thus, permitted to attend. The implementing General Service Administration rule (41 CFR 101-6.1015) interprets the FACA's requirement for "timely notice" as one that is published in the Federal Register at least 15 calendar days prior to the meeting. In exceptional circumstances, fewer than 15 days' notice may be given, provided that the reasons for doing so are included in the committee meeting notice published in the Federal Register. The shorter-than-15-day notice period is used only in emergency situations. For example, an "administrative oversight" cannot be used as a reason for disallowing the required 15-day public notice period.
(2) Contents of the Notice. The Federal Register notice includes:
a. The name of the advisory committee.
b. The time, date, place, and purpose of the meeting.
c. Building security requirements, if any.
d. A summary of the agenda.
A statement indicating whether all or part of the meeting is open to the public or closed, and if closed, the reasons why, citing the specific exemptions of the Government in the Sunshine Act (5 U.S.C. 552(b)(c)) as the basis for closure.
f. A statement that any member of the public may submit written comments concerning the committee's affairs. The notice should also mention whether the public may speak at the meeting in accordance with guidelines developed by the agency or the committee.
gf. A statement concerning the availability of sign and oral interpretation as well as an assisting listening device.
hg. The name, address, and telephone number of the agency official to whom the public may address any inquiries.
i.h A reasonable deadline for written comments from the public so there will be time to copy and mail them to the members prior to the meeting.
ji. The name, address, and telephone number of the Regulations Aregulations analyst to contact for a copy of any draft recommendation that a working group plans to submit to ARAC at the meeting.
C. ARAC Meeting Minutes. Section 10(c) of the FACA requires that detailed minutes be kept of each committee meeting. Those minutes must contain a record of the persons present, a complete and accurate description of matters discussed and conclusions reached, and copies of all reports received, issued, or approved by the committee. The
ARAC Executive Director is responsible for preparing the minutes of any ARAC or Executive Committee meeting. The Assistant Executive Director is responsible for preparing the minutes of any ARAC meeting to discuss a specific issue. The Assistant Executive Directors provide the signed minutes of those meetings to the ARAC Executive Director for distribution and incorporation in ARAC's official files. Working groups are not required to keep detailed minutes of their meetings; however, it is extremely important that they document their progress in some way. Working group members should keep key individuals within his or her respective organization fully informed of decisions reached, issues unresolved, and action planned to resolve issues. The minutes do not need to be verbatim, but rather must contain an accurate description of each matter discussed and the resolution, if any, made by the committee. It is not necessary to record individual votes, only the decision. Minutes include the following:
(1) Time, date, and place of meeting.
(2) A list of committee members, staff, and agency employees who attended, as well as any members of the public who presented oral or written statements.
(3) An estimated number of members of the public present.
(4) An accurate description of each matter discussed and the resolution, if any, made by the committee, and copies of each report or other document received by the committee.
Note: Contract services for preparing the minutes or for providing a transcript of the meeting may be utilized only if approved in advance by the
ARAC Executive Director. Draft minutes will be available to members within 30 days of the date of the meeting.
D. Public Participation. The general public must be afforded the opportunity to provide input on ARAC recommendations before they are submitted to the FAA. Therefore, full committee,
executive committeeExecutive Committee, and ARAC meetings to discuss specific issues are open to the public, and announcements of those meetings are published in the Federal Register. The following normally takes place at an ARAC meeting:
(1) Every effort is made to set aside a portion of committee or Executive Committee meetings or ARAC meetings to discuss a specific issue for public participation to the extent that the meeting time and agenda permit.
(2) Members of the public may speak at the discretion of the Chair.
(3) Members of the public may file a written statement with the ARAC.
To be accessible to the public, each meeting must be held at a reasonable time and in a place reasonably accessible to the public. Open meetings may not be held at remote locations or in buildings that are not freely open to the public. The FAA has interpreted "easily accessible" to mean only within the United States. The public is advised in the Federal Register notice announcing the meeting that the space is limited and seating will be on a first come, first served basis. In choosing a location, the
ARAC Executive Director or ARAC Assistant Executive Director takes into consideration how many members of the public attended similar meetings in the past and the resources and facilities available to the agency. Because working groups function as technically oriented ARAC staffs for deliberation and resolution of technical issues, working group meetings are not conducted in a public forum. Working group deliberations are conducted in closed meetings, where attendance is limited to working group members only.
E. Bulletin Board. The ARAC bulletin board was established to provide information on ARAC activities. The bulletin board contains a current ARAC calendar, membership lists, and task statements. In addition, it contains notices of proposed rulemaking that are open for comment as well as recently issued amendments to the Federal Aviation Regulations. The bulletin board is accessible via a
n international, toll-free telephone number. Details for logging into the bulletin board are contained in Appendix F. The FAA Office of Rulemaking manages the bulletin board. To ensure that the information is current, particularly with respect to the ARAC calendar, Working Group Chairs are responsible for providing updated information on working group activities to the Office of Rulemaking via either telephone or fax. The Office of Rulemaking is responsible for providing updated information on activities at the full committee and Executive Committee levels. The bulletin board is also available via the internet at http:/armbbs.faa.gov/.
(1) Preparation for ARAC and Executive Committee Meetings. The
ARAC Executive Director is responsible for mailing a notice, including the agenda, of each full committee and Executive Committee meeting, as well as copies of any materials that will be voted on at the meeting. The material should be mailed well in advance of the date of a meeting so the members can effectively prepare for the deliberations. In addition to the required Federal Register notice of meeting, other forms of notice are used such as the ARAC bulletin board, press releases, and notices in professional journals.
(2) Preparation for ARAC Meetings to Address a Specific Issue.