House Hearing on FAA Reauthorization Focuses on UAS Implementation Delays
On Thursday, September 26, 2019, the Subcommittee on Aviation of the House Transportation and Infrastructure Committee held a hearing on the implementation of the FAA Reauthorization Act of 2018. The first panel included Daniel Elwell, Deputy Administrator of the FAA, and the Honorable Joel Szabat, Acting Undersecretary for Policy at the DOT. Joining the Deputy Administrator and the Acting Undersecretary were Lirio Liu, Acting Deputy Associate Administrator of the FAA, and Blaine Workie, the Assistant General Counsel for Aviation Enforcement and Proceedings at the Department of Transportation. With respect to implementation of the Act as related to unmanned aircraft systems (UAS or drones), the hearing focused heavily on implementation delays, particularly as related to the FAA’s highly anticipated rulemaking on requirements to enable the remote identification of UAS in flight (Remote ID).
The FAA Reauthorization Act of 2018 was, generally speaking, a big step forward for the UAS industry. The Act not only established new initiatives (such as a rulemaking to facilitate drone carriage of property and a pilot program for UAS detection and mitigation technologies at airports) and expanded existing programs (such as the FAA’s Unmanned Traffic Management (UTM) pilot program), but also reformed a legal loophole from the 2012 FAA Modernization and Reform Act that prevented the FAA from imposing regulations on UAS hobbyists (Section 336). With the necessary legal authority to establish a Remote ID regulatory framework for all drone users of the airspace, stakeholders expected the FAA to move forward expeditiously with a rulemaking on Remote ID, particularly given the extent to which the lack of Remote ID requirements has prevented the FAA from expanding its Part 107 regulations to allow more expanded use of drones for commercial purposes. However, the rulemaking timeline has continued to be delayed, most recently slated for December 2019 (although the notice of proposed rulemaking (NPRM) did recently go to the Office of Information and Regulatory Affairs (OIRA) within the White House Office of Management and Budget, which is the final step before it will be released for public comment). To meet the various UAS-related initiatives and policy objectives staked out in the Reauthorization, the Act tasked the FAA with dozens of deadlines for items such as rules, procedures, guidance documents, programs, and reports to Congress.
At Thursday’s hearing, members of the subcommittee expressed frustration with the FAA's implementation timelines and failure to meet deadlines for drone-related deliverables set out in the bill last year. This frustration was particularly noticeable regarding the delay of Remote ID. Panelists and Members both emphasized the importance of standards for Remote ID to allow operations over people and beyond visual line of sight (BVLOS) rules in the future.
In responding to concerns about implementation delays, Deputy Administrator Elwell stressed the FAA’s focus on safety as well as the complexity of integrating UAS into the existing system rather than segregating it. He resisted suggestions that the US is falling behind other countries in UAS technology, but he emphasized that most other countries segregate UAS. He also acknowledged that interagency technical issues were holding back the implementation of Remote ID. Rep. DeFazio (OR-04) questioned how OIRA could carrying out a cost-benefit analysis of Remote ID when the technology hasn't yet been tested, and Rep. Lipinski (IL-03) pointed out that Remote ID was necessary not only for safety, but for the creation of jobs in the industry. Deputy Administrator Elwell insisted, however, that the rule is moving. He noted that the removal of the Section 336 hobbyist exemption in 2018 forced the agency to go back to the drawing board on putting the rule together, but did not elaborate on how Congress’s action in correcting the loophole and giving the FAA the requisite authority changed the FAA’s approach.
Members were similarly dissatisfied with the slow execution of the UAS Centers of Excellence program, designed to help community colleges provide more training on small UAS, which the Reauthorization directed the FAA to implement by April 5. Deputy Administrator Elwell explained that the Administration is struggling with the text of the statute, given that Centers of Excellence are generally not grant recipients. He expressed hope that Section 632 would be implemented by the end of the year.
Surprisingly absent from the hearing was discussion of Section 2209—a provision from the 2016 FAA Extension, Safety, and Security Act that required the FAA to develop a process to have certain critical or sensitive facilities designated to restrict overhead UAS flights. The 2016 Act required the FAA to establish the process within 180 days. Three years later, with no such process in place, the Reauthorization called for an NPRM by March of this year, but the FAA has yet to act. The most recent DOT rulemaking agenda estimates the NPRM will be released in September of 2020. Despite the importance of this issue to state and local legislatures—and the extent to which inaction has animated numerous state and local bills designed to protect what that jurisdiction considers “critical infrastructure”—the issue was not pressed at the hearing.
The FAA did take the opportunity to tout the "huge success" of the Integration Pilot Program (IPP), a Department of Transportation initiative launched in 2017 that is designed to leverage state and local partnerships with industry to study issues related to UAS integration. Deputy Administrator Elwell stated that the data collected from the program would help the FAA continue to integrate UAS into the airspace. To that end, he noted that Google Wing went through Part 135 certification to become an air carrier (a class of aircraft operator that carries people or property for hire on an interstate basis), a process that was "unprecedented."
The hearing showed that the pressure on the agency to release the long-awaited Remote ID rule has not abated since the FAA sent the rule to OIRA. Remote ID serves as the keystone to the entire framework of expanded drone operations, and without that critical step none of the other issues can move forward. Indeed, the concerns raised by lawmakers were echoed later in the day by industry representatives on a separate panel.
So when will Remote ID finally see the light of day? Unfortunately, it’s still hard to say. The move to OIRA is a major positive step, and notionally that agency has a 90-day process to review proposed rules, which is the source of the December date most recently advanced for the Remote ID rulemaking. But there’s no guarantee that things will move that quickly; in fact, if past experience holds, the review process is likely to take longer than that, meaning Remote ID will be delayed still further. At this point, even the FAA Deputy Administrator can’t say for sure.