Friday, May 7, 2021

Correct FAA Failure to Act

Earlier this week the Department of Transportation published a regulatory review notice in the Federal Register seeking public comments on its current review of “existing regulations and other agency actions to determine whether they are consistent with the policies and National objectives set forth in these executive orders [EO 13990 and EO 13992].” The ‘action’ that I would like to draw to the Department’s attention is the inaction of the Federal Aviation Administration in complying with §2209 of PL 114-190 (130 STAT. 634) , the FAA Extension, Safety, and Security Act of 2016.

The Requirement

On July 15th, 2016 President Obama signed into law HR 636. Section 2209 of that bill required the FAA to “establish a process to allow applicants to petition the Administrator of the Federal Aviation Administration to prohibit or restrict the operation of an unmanned aircraft in close proximity to a fixed site facility” {§2209(a)}. Fixed facilities in the following categories would be able to request designation as an area where unmanned aircraft systems would be restricted from operation {§2209(b)(1)(C)}:

• Energy production, transmission, and distribution facilities and equipment,

• Oil refineries and chemical facilities,

• Amusement parks, and

• Other locations that warrant such restrictions.

Section 2209 gave DOT 180 days from the signing of the bill to establish the process described above. That would have been January 12th, 2017. To date no rulemaking activity has been published, nor is their a listing of such a rulemaking in either the current Unified Agenda or Long Term Actions Agenda.

To Limit Exposure

Part of the intent of Biden policy outlined in §1 of EO 13390 is “to limit exposure to dangerous chemicals and pesticides”. It would seem to me that a key component of ‘limiting exposure’ would be to help chemical facilities prevent accidental or deliberate releases of dangerous chemicals caused by actions or activities of UAS over their facilities. Clearly, this is the intention of §2209. Failure to provide chemical facilities with this security tool substantially limits their ability to address this mode of limiting exposure.

Proposed Action

The Department of Transportation should take immediate action to begin the rulemaking process on this requirement.

NOTE: A copy of this blog post will be submitted as a comment on the referenced DOT notice.

1 comment:

Laurie Thomas said...

Patrick, under "Other locations that warrant such restrictions", certain facilities subject to MTSA. Which ones? Sort them out by the USCG MSRAM risk scoring. If the facility disagrees that the MSRAM score does not represent their risk re UAS, that argument is something that the Coast Guard traditionally is very receptive to listening to.

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