It’s a question asked by kids (and backseat drivers) everywhere. In the case of the remote identification of drones, the driver is the FAA, and the Congress, as always, is in the back seat.
Congress has the authority to set priorities for administrative agencies. In addition to wheedling and cajoling agency Administrators and Secretaries when they testify before Congress, they can pass laws requiring the agency to act by a fixed deadline. How effective is this in achieving the desired result? Not very!
A case in point is the Notice of Proposed Rulemaking (NPRM) for remote identification of drones. The FAA was directed to develop standards for the remote identification of UAS in the FAA Extension Act of 2016. Congress set a deadline for these standards of July 2018. The FAA missed that deadline, and announced that the NPRM would be released on May 1, 2019 (ten months after the deadline). As May 1 approached, the FAA announced a delay in the rule until July 2019.
On April 29, 2019, Senators Thune and Markey of the Senate Committee on Commerce, Science, and Transportation, sent a letter to the FAA urging it to publish the NPRM and requesting a written response detailing all of the steps that must be taken between May and July for the FAA to be able to release the rule. In their letter, the Senators referenced the disastrous interference with air traffic by drone sightings at Gatwick last year, as well as incidents at Heathrow and Newark Liberty International Airport that also caused halts of flights. The Senators correctly noted that the Remote ID rules are necessary for counter drone efforts as well as more advanced UAS operations, and stated that swift action was necessary. The NPRM was subsequently delayed until September, and then delayed again, with a current release date of December 2019.
On September 12, 2019, Senators Thune and Markey again wrote to the FAA, noting that the FAA had ignored their April letter and never provided a response. The Senators again called for immediate action on the NPRM and asked the FAA to provide answers to five new questions:
- How does the FAA plan to administer and facilitate any voluntary deployment of remote identification equipment to ensure these deployments are carried out in a nationally consistent manner?
- Will the FAA publish any interim rule or other informal guidelines regarding voluntary deployment of remote identification?
- Does the FAA believe that the remote identification NPRM and final rule will be further delayed as a result of any voluntary actions?
- How will the FAA ensure that any voluntary actions taken by industry in the pre-rule period do not substantially differ from requirements laid out by the NPRM or final rule?
- How does the FAA plan to use information gathered from voluntary implementation to inform the rulemaking process?
As we previously reported, after the September deadline was missed, the NPRM was sent to the Office of Information and Regulatory Affairs (OIRA), which is part of the Office of Management and Budget (OMB) at the White House. As part of the review process, OIRA meets with interested members of the public. According to the OIRA website, the office has held eight such meetings, and has two more scheduled over the next two weeks. If the OIRA review results in little or no changes to the NPRM, it will go back to the FAA to be finalized, and might possibly be released for public comment in late December or January next year. If, however, the review turns up a significant problem, then it will be back to the drawing board and another substantial delay.
While this rulemaking is obviously very late, it is not because of any nefarious motive or pushback against Congress. It is a complex issue in an area where technology is advancing very quickly, while at the same time, there is a large body of legacy unmanned aircraft in the hands of hobbyists and business users that must be accommodated. In the face of these realities, Congress has about as much influence over the process as a kid in the back of the car. He can voice his frustration, and even displeasure, but it won’t get us there any faster.