Problem 10: How is this a Rule and How Will it Get Done by Christmas?
The announcement said they were going to try and roll this out by Christmas. How? Is this non-binding guidance or law? If it is law, then it is required to follow the rulemaking process. The overall idea is that the rulemaking process goes through notice and comment and then publication. The FAA started the rulemaking process in 2009 with the commercial drone rules and they only finally published them in February. That is six years! The only way the FAA could do it is through an emergency rulemaking process. This can only happen if there is a direct emergency rule that is published.
The normal approach to rulemaking is notice, comment, and then publishing the rule. Publishing a direct final rule which skips the notice step appears to violate the APA; however, the APA allows the FAA to issue a direct final rule without any notice when the FAA has good cause.[11] Good cause is when the rulemaking process is “impracticable, unnecessary, or contrary to the public interest.”[12] The FAA issues final rules in these three good cause situations.[13]
Generally, a direct final rule will take effect 60 days after publication in the Federal Register, unless the FAA receives an adverse comment which is a comment showing the rule is inappropriate, ineffective, or unacceptable.[14] If an adverse comment is received, the FAA may withdraw the direct final rule and publish another direct final rule incorporating the comment or publishing a NPRM.[15]
When Notice and Comment is Impracticable
“This exception can be used when an urgent and unsafe condition exists that must be addressed quickly, and there is not enough time to carry out Notice and Comment procedures without compromising safety.”[16] The manual goes on to say the urgency must be explained and the time to give individuals to comply with the AD must reflect the urgency.[17] “For example, it would make little sense to say immediate action is necessary to prevent a landing gear failure and then allow 60 days compliance time to resolve the unsafe condition.[18] Also, the AD should be issued quickly to be consistent with the determination of ‘impracticability.'”[19] In Air Transport Association of America vs. the Department of Transportation,[20] the FAA’s penalty enforcement action was vacated by the U.S. Supreme Court because:
[T]he FAA is foreclosed from relying on the good cause exception[, from the APA,] by its own delay in promulgating the Penalty Rules. The agency waited almost nine months before taking action to implement its authority under section 1475. At oral argument, counsel for the FAA conceded that the delay was largely a product of the agency’s decision to attend to other obligations. We are hardly in a position to second guess the FAA’s choices in determining institutional priorities. But insofar as the FAA’s own failure to act materially contributed to its perceived deadline pressure, the agency cannot now invoke the need for expeditious action as “good cause” to avoid the obligations of section 553(b).[21]
Problem 11: Mandatory registration Only Helps if There’s a Crash
Manned aircraft N Numbers are hard enough to see. I can’t even see the logo on my Cheerson CX-10 from 10 feet. If there is a crash, do you really think you are going to find the small piece of plastic that had the “sharpie-drawn” N-number on it, the mailbox number stickers, or the serial barcode sticker under the gimbal? The only counter to this is taglets mixed in the plastic matched up with laser etched numbers on the critical parts that would most likely survive a crash (motors, etc.). Simple registration is useless unless this is a comprehensive manufacturer backed plan. What happens if DJI requires registration but Yuneec does not? I’m not ruling out the registration idea but geofencing would have better results.
Be sure to check out our slideshow of some of the most common drones!
Jonathan Rupprecht · Jonathan B. Rupprecht is a drone lawyer and a commercial pilot with single-engine, multi-engine, and instrument ratings. He is also an airplane flight instructor and instrument flight instructor. Jonathan obtained a Bachelor of Science in Professional Aeronautics from Embry-Riddle Aeronautical University, Magna Cum Laude, and a Juris Doctor from Florida International University School of Law.
