Section 2209 Fixed Site Drone Exclusion Rulemaking Delay

Back in May the DOT’s Federal Aviation Administration (FAA) sent a notice of proposed rulemaking to the OMB’s Office of Information and Regulatory Affairs (OIRA) on “Designation - Restrict the Operation of an Unmanned Aircraft in Close Proximity to a Fixed Site Facility”. This rulemaking was mandated by §2209 of the FAA Extension, Safety and Security Act (PL 114-190, 130 STAT. 634), and was supposed to have been completed by January 11^th, 2017. Then in June, the President issued EO 14305, Restoring American Airspace Sovereignty, reiterating the Administration’s intent to quickly implement this legislative mandate. So, why has this NPRM not yet been approved by OIRA?

Generally speaking, OIRA has 90-days {§6(b)(2)(B) EO 12866} to ‘approve’ a rulemaking, though that can be extended for 30-days. Or the Administrator can send the rulemaking back to the submitting agency for “for further consideration of some or all of its provisions” {§6(b)(3)}. There is no requirement to notify the public of such ‘further consideration’ actions.

As part of its review process, OIRA may receive input from the public via meetings with OIRA that include representatives of the submitting agency. This input process is also governed by EO 12866 {§6(b)(4)}. A public listing of meetings governed by this process is maintained by OIRA and is available online as part of the Unified Agenda listing for each rulemaking. The record for the §2209 rulemaking can be found here.

There are a total of 19 EO 12866 meetings listed for this rulemaking, three before the rulemaking was submitted to OIRA by the FAA, 15 within 35 days of that submission, and one in September. OIRA did not accept any EO 12866 during the funding fiasco. While the details of these discussions are not available, a look at the names of the parties involved makes it clear that (not surprisingly) most of the meetings were requested to discuss concerns about the scope of the rulemaking.

With a variety of drone delivery services being participants in a significant number of the meetings, I would expect that their concerns would deal with scope of the area covered by the drone exclusion zone for the critical infrastructure. If that zone were to extend beyond the boundaries of the requesting critical infrastructure facility, it could restrict deliveries to some customers of those services. Questions could also have been raised about UAV deliveries to the facilities requesting the exclusion zone. Overly large exclusion zones could also impact route selection and thus the cost of deliveries made by those services.

Drone manufacturers and user groups were also well represented at these meetings. Both groups would be expected to have concerns about how these exclusion zones would be communicated to the public, how operators would be expected to be aware of those zones, and where their vehicles were in relation to those zones. Would there be requirements for geofencing, for example, and if there were such requirements, how would they affect UAVs already in service. Finally, how would the size of the vehicle affect the application of the rulemaking; would micro-drones, for example, be affected.

If any of these concerns were not appropriately addressed in the proposed rule, the FAA may have had to make changes to the regulatory requirements in the rule, or changes to the discussions in the preamble that would clarify the intent of the agency. All of these could further slow the publication of the notice of proposed rulemaking.