The FAA drone registration rulemaking process may be more involved than Anthony Foxx and Michael Huerta are letting on. On October 19, in a joint news conference, the two aviation “bigwigs” announced their proposal to develop a drone/UAV registration system. This, of course, is the government’s response to ever-happening incidents between drones and other aircraft in the National Airspace System. In order to do so, the Department of Transportation and the Federal Aviation Administration have put together a “task force” of drone industry leaders to develop the new registration “rules” by November 20, 2015. You read that correctly. The FAA thinks it can answer the National Airspace System’s drone problem in just one month. Beyond that, Foxx and Huerta expect to have these rules implemented “sometime in December.” Clearly, this is a knee-jerk reaction to the FAA’s expectation that close to a million drones will be sold over the course of the holiday season. There’s nothing like taking a relatively complex problem and finding a solution as quickly as possible (no matter how sloppy and poorly thought out the solution will be). Be that as it may, is it even possible for the FAA to hit the December deadline?
Let’s walk through how the FAA rulemaking process works and make a prediction as to whether or not the new drone regulations will be ready by December. Normally, the FAA will utilize what’s known as notice-and-comment rulemaking. In this situation, in order to create a new rule or Federal Aviation Regulation, the FAA must issue to the public a document known as a Notice of Proposed Rulemaking (“NPRM”). The NPRM explains things such as the need, the source of authority, and the reasons for the proposed rule. Once the NPRM is issued, the FAA must allow a period of time for public comment upon the rule. For instance, if the FAA wanted to create a new rule on how to manage wildlife at an airport, they would have to release the NPRM and then give the public a period of time to comment on the potential rule. Who would comment? In this situation, maybe an airport director would comment that such a regulation is “impractical for day-to-day wildlife management” but an animal trapper might say “this is a useful regulation for trappers.” Nonetheless, anyone that cares to comment is allowed to do so. Most of the time, the comment period is shorter than the public would like (only 30 days), so the public will petition the FAA to have the comment period stay open for longer.
The Administrative Procedure Act (“APA”), the go-to text on administrative law, indicates that the notice-and-comment process allows for changes to be made to the proposed rule based on the public comments received. Nonetheless, the courts have required that any changes made in the final rule be of a type that could have been reasonably anticipated by the public – a logical outgrowth of the proposal. If a change is not a logical outgrowth of the proposal in the NPRM, an agency is required to provide the public with a further opportunity for comment.
Once this process is completed, the FAA then issues its Final Notice of Rule Making (“FNRM”). In doing so, the FAA Administrator will review and analyze the comments received and decide whether to proceed with the rulemaking proposed, issue a new or modified proposal, or take no action on the proposal. At this point, the final rule is published in the Federal Register and a copy is placed in the rulemaking docket. Essentially, anyone that disagrees with the final rules or accompanying analysis issued by the Administrator may file a petition for reconsideration explaining why they believe the administration is wrong. The Administrator will then issue an order granting or denying the petition. Alternatively, as long as the Administrator has addressed an issue, the parties who disagree with a rule that affects them may seek court review of the decision. We predict that there will definitely be some judicial review of the new UAV registration regulations.
The foregoing is the process that would be involved if the FAA were going about the drone registration regulation in the “normal” fashion. Seemingly, that is not what is happening here. Instead, the FAA and the DOT are treating drone registration as an emergency situation. It’s not as if they haven’t known for some time that they needed to come up with a solution for integrating drones/UAVs into the National Airspace System. Again, the best solution is rarely the solution that is developed in a month’s time.
Nonetheless, the APA permits a pseudo emergency rulemaking process, where the FAA can finalize rules without first publishing the proposed rules in the Federal Register. This exception, however, is limited to cases where the agency has “good cause” to find that the notice-and-comment process would be “impracticable, unnecessary, or contrary to the public interest.” These situations usually include emergencies where problems must be addressed immediately to avert threats to public health and safety, minor technical amendments, and corrections where there is no substantive issues, and some instances where the FAA has no discretion to propose rules because Congress has already directed a specific regulatory outcome in a law. However, the FAA must state its reasoning for finding good cause in the preamble of the final rule, published in the Federal Register.
So what are our predictions? Will the FAA be able to get these regulations out by the December deadline? It’s hard to say. There are a few hurdles that the administration will have to get over. First, will the “task force” of drone industry leaders be able to come up with a palatable plan? This plan would have to account for the process of registering drones, how registered drones will be tracked, the consequences of not registering a drone…and the list goes on. Once the “task force” finally answers these hard hitting questions (in a month), will the FAA (a government agency) be able to efficiently and effectively administer and issue the new regulation by December? It remains to be seen. All that can be said right now is that the FAA knew that this was coming and they chose to wait until the last minute. Whether or not they will be able to come up with a quality regulation by December is going to be an interesting process to watch.
If you have any questions about the new UAV regulations, the FAA rulemaking process, how to obtain a Section 333 Exemption, or any other aviation law question, please contact a drone attorney at The Ison Law Firm. We are standing by to vector you through legal turbulence…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.